BL v. SJY

FCMC 7831 / 2008

[2021] HKFC 148

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 7831 OF 2008

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BETWEEN

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J U D G M E N T

(Relocation)

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Introduction

1.  There is currently only one application before the court that requires adjudication, namely the Petitioner Mothers Notice of Application for leave to remove the child of the family out of the jurisdiction of Hong Kong, dated the 29 September 2020. In this application she seeks leave to permanently remove the minor child, S, out of the jurisdiction of Hong Kong in order to relocate with her to the United States on a permanent basis. S is now almost 14 years of age having been born on the XX August 2007. The father opposes the mother’s application. He wishes S to remain in Hong Kong and for her to complete her secondary education here.

2.  The parties have been in and out of court for the last 13 years or so. The litigation has been chronic with seemingly no end in sight. As things stand the Respondent father continues to refuse to pay the full amount of maintenance for the child, generally speaking not even the amount he proposes in his regular applications to vary, and the mother is then left with no option but to seek to enforce the same. There is a repetitive element to the dispute with the same arguments being put forward time and again. However, the situation has now altered somewhat in that up until now the Petitioner mother has been allowed to remain in Hong Kong on a tourist visa only. Pre Covid she could come and go and was allowed to remain in Hong Kong on a more or less permanent basis, given that S does have permanent residency status in the territory. However, in a recent letter to the court dated the 19 July 2021, the mother says that she her visa has only been extended for 30-days, which means that she can only remain in the territory until the 30 July 2021.

3.  As will be seen, and as highlighted by the social Welfare Officer Mr Y, there is a definite element of risk associated with the mother and child remaining in Hong Kong. There is also a risk associated with S leaving. Thus, the court is required to balance the relative risks associated with S either relocating to the USA or remaining in Hong Kong one against the other. To that end it is of note that the mother is not a permanent Hong Kong resident. She is not entitled to work here as of right and history has shown that she has been unable to obtain work with a work visa in the territory. Further she is not entitled to public housing or to Government assistance for herself. S currently attends a local government school, but her situation and that of the mother remains somewhat precarious. For example, the mother is not entitled to medical care in the public health system, although S is so entitled. Meanwhile the respondent father continues to refuse to pay the full amount of maintenance for S that he has been ordered to pay i.e. the sum of HK$6,500 per month. Even during the trial, he made no proposals to pay the amount then outstanding, assessed by the mother to be HK$265,000. Indeed, the impression given by the father was that he expected the mother to forgo that amount. It is not clear how the father expects the mother to maintain both herself and S longer term if she has to remain in Hong Kong and she is unable to find work and if he refuses to fully maintain S or at all.

Background

4.  As I have said this litigation is chronic. The first Ruling on the court file is dated the 21 November 2008 and concerns the mother’s then application for maintenance pending suit. In that judgement I note that the parties married on the XX February 1995 and that the child of the family S was then just over a year old. At that stage the mother was 41 years old and she was working as an assistant merchandising manager. The father for his part was the 57 years old and running his own business.

5.  Other litigation followed, including an application to vary the interim financial support (see the Ruling dated the 20 February 2009), a defended suit (see the judgement dated the 31 July 2009), a trial on the arrangements for S (see the judgment dated the 19 January 2010) and a trial on final ancillary relief together with the first applications for enforcement and variation, (see the judgment dated the 19 May 2011). By that stage the mother was not working outside of the home and the husband had become a paragliding instructor. In the final analysis the court made an order as follows:

Order

1) Upon pronouncement of the decree absolute the husband shall pay the wife a lump sum of HK$1,282,643.97 plus interest in full and final settlement of her claims for capital ancillary relief. It is directed that the Respondent’s conveyancing solicitors namely Messrs Kevin LH Kwong & Co shall release this sum to the Petitioner wife.

2) …

3) Nominal periodical payments to the Petitioner to be paid by the Respondent at the rate of HK1 per annum for her maintenance during the joint lives of the parties or until the Petitioner’s remarriage whichever is the shorter, first payment to be made upon decree absolute.

4) The Respondent do pay periodical payments for the child of the family in the sum of HK$6,500 per month, such payments to commence on the 1 June 2011 and thereafter to be paid on the ^1st day of each month until the child attains the age of 18 years or ceases full time education, whichever is the later, or until further order.

5) The Respondent shall pay the arrears in the sum of HK$85,935.50 by instalments of HK$3,000 per month for 28 months plus one final instalment of HK$1,935.50, commencing on the 1 June 2011 and thereafter on the 1^st day of each succeeding month until full payment. 

6) The Petitioner’s judgment summonses dated the 10 September 2010 shall be adjourned sine die with liberty to restore.

7) There shall be an order nisi to be made absolute in 14 days that there shall be no order as to costs both in relation to the ancillary relief trial and in relation to the judgment summons hearing.  

6.  Issues continued with respect to the maintenance for S assessed in the sum of HK$6,500 per month. This was premised on the basis that each parent should contribute towards 50% of S’s then expenses. Other applications followed including an application to vary the arrangements for S (see the second judgment also dated the 19 May 2011) and applications for leave to appeal and leave to appeal out of time. On the 13 September 2012 the father was sent to prison for the first time for two weeks for refusing to pay a small sum then outstanding. I am told that the husband then paid the sum due and owing after he left the court and prior to him being sent to prison.

7.  Other applications followed. Generally, the mother would seek leave to enforce the arrears of maintenance for S and the father would issue applications to vary. On one occasion the mother also applied to vary the maintenance up. Reference should be made to the other judgments in this respect, including inter alia those dated the 26 April 2013 (where reference was made to a potential relocation application for the first time), the 12 February 2015, the 19 January 2016 and the 5 October 2016. On that occasion the father was sent to prison for a second time for a period of two months for failing to pay the sum of HK$190,665. Again he paid after leaving the court room and before he was sent to prison. A further judgment followed on the 21 October 2019. The parties have tended to represent themselves, although they have had the advantage of legal representation from time to time. In the last judgment dated the 21 October 2019 I summarized the position as follows:          

Introduction

1. This is the second application by the respondent husband for a decrease of maintenance for the child of the family S, a girl who was born on the XX August 2007, from HK$6,500 per month down to HK$5,000 per month. He does not propose a general decrease down. The summons was drafted by lawyers and he was legally represented at the time. The application is in exactly the same terms as his previous summons in 2015 and reference should be made to the judgment dated the 19 January 2016 in that respect.

2. I also attach a copy of the last judgment in this extraordinary piece of litigation, dated the 5 October 2016, which was in relation to the wife’s 3rd, 4^th, 5^th and 6^th judgment summonses. In particular reference should be made to paragraphs 2 and 3 where I summarize the situation from the court’s perspective. It is of note that there are further judgment summonses in the wings. It is also of note that although the husband has consistently said that he is willing to pay HK$5,000 per month for S’s maintenance, that historically this has not always been the case.

Updated background

3. S, the child of the family, who remains the central player in the ongoing war between her parents, is now 12 years old. The wife has just turned 50. She does not work and is a full-time housewife. She relies on the maintenance from the husband and presumably the original lump sum that she received on the divorce and her other investments. (Reference is made to the buying of stock in her Answers to the Respondent’s Questionnaire dated the 29 January 2019). The husband for his part is now 68 years old. He has remarried and his new wife is a social worker. On his case his previous work as a part time paragliding instructor has come to an end and he has no other sources of income. The wife says that she relies also on a financial contribution from her family.

4. As indicated previously, at this stage of the process I do not find either party to be wholly credible, although the wife is rather more credible than the husband.     

8.  It is then, in these rather extraordinary circumstances, that I am asked to now adjudicate upon the mother’s application. She is now 53 years of age and is originally from the Mainland China and her parents continue to reside in Beijing. She is a US citizen and has the ability to work in the United States. As indicated above, she is not a Hong Kong permanent resident and she is not entitled to any of the benefits associated with that including public housing, medical and CSSA.

9.  The father will be 70 years old in October. His current residency status is unknown, although it is of note, and again indicated above, that he has remarried a Hong Kong Chinese woman.

The updated position

10.  Applications remain outstanding with respect to enforcement of maintenance, but notwithstanding that the mother has decided to proceed with her application to relocate. She says, and I accept what she says in this respect, that she had not realized that she could relocate without completing the enforcement proceedings first. As indicated above, it is not clear, if or when those proceedings will ever be finally completed.

11.  The mother wishes to relocate to Irvin, California. She has identified a suitable school for S and her parents will continue to assist her from a financial perspective in the short term. She intends to look for work almost immediately.

The main issues

12.  The main issues then are these:

Should permission be given for S to relocate to the United States with her Mother?

And what is in the best interests of S overall?

The Law

Relocation

13.  In Hong Kong we continue to follow the guidance provided by the English authorities and in particular Payne v Payne [2001] 1 FLR 1053. This has recently been reconfirmed in the Court of Appeal’s decision H and W, [2021] HKCA 733, which was an appeal from this court, where it was stated inter alia that:

“In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child. Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child. 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.”

With respect I agree. It is of note that in this case there is no dispute that the mother is and always has been S’s primary care taking parent.

14.  Reference may also be made to the Court of Appeal’s previous comments made in the judgment of BA v BL (Child Relocation) [2019] 4 HKLRD 23 [2019 HKCA 822, CACV 18/2018 and in particular to the “welfare centric” approach which was also referred to in the English case Re F, where Ryder LJ said as follows:

“Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary... Each realistic option for the welfare of achild should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absentor ‘left behind’ parent) from being side-lined in a linear analysis. Not only is it necessary to consider both parents’ proposal on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse.”

It is accepted that a “welfare analysis” will also be necessary in this case.

15.  However, before we get to that stage, it might be helpful to refer back to the actual and most often quoted passage from Lord Justice Thorpe who said in Payne (where the relevant factors were originally identified) that in order …

(40). … To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

i. Pose the question: 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, by which I mean, founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

ii. 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?

iii. 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?

iv. 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 insofar as appropriate.

In suggesting such a discipline, I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological wellbeing of the primary carer.  In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

16.  To reiterate then, the one and only authentic legal principle that I need be concerned with, when considering whether or not S should relocate with her mother to the United States, is that the best interests of S remain the court’s paramount concern. I will though largely rely on the guidance provided by Payne in coming to a decision on that issue. I will also undertake a “welfare analysis” of the proposals advanced by each party, such as they are, within that guidance.

List of factors to be taken into account

17.  In addition, reference may also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. As in H and W, this has also proved helpful in the past when considering issues relating inter alia to the best interests of children. It may also be referred to when considering a welfare analysis, as referred to above. The checklist states that the following matters should be taken into account by the court when determining matters of this nature:

(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.”

In this instance paragraphs a), b), c) and f) are of particular importance.

The proposals from each party

Mother’s proposal

18.  The mother set out her proposals in point form in her supplemental affirmation dated the 17 December 2020 as follows:

1. Accommodation:

The Village at Irvine Spectrum

Add: XX Prism, Irvine, CA92618

Web: irvinecompanyapartments.com

2. Schooling:

X High School (It’s a grade A+ school.)

Add: XX, Irvin, CA 92604

Web: http://Xhigh.iusd.org/

3. Employment:

I’ve been online searching jobs nationwide in state these days. Amazingly I have received a few responses from US already. Unfortunately they will not consider me if I am not physically in state. I will have to apply for jobs once I relocate and I’m very optimistic for my future job in state. Attached please find 3 contacts I’ve recently received for your reference.

4. Visa

Both S and I are American citizens which we are all entitled with local welfare. We don’t have any visa issues at all.

5. Covid-19

The tentative relocation date is next July 2021. That is a perfect timing for S enroll into Grade 9 the beginning of high school level in state. The TVB Pearl news dated December 8, 2020 said the seniors and frontline medical staffs have started taking the covid-19 vaccine both in US and UK. By then I believe the covid-19 have cooled down already and the vaccine will be available in the market worldwide already.

6. S’s Personal Documents

- American Birth Certificate

- Social Security Card(SSN)

Both above documents are very important for S when she lives in the US. The Respondent has been holding them ever since I moved out from the matrimonial home in 2008. I’d like to ask this honorable court get these back to us as soon as possible.

19.  In so far as access is concerned, she suggests as follows in her updated affirmation dated the 13 May 2021:

8. According to my record, the Respondent has travelled back to the states 4 times in 2019. This can be verified by Hong Kong immigration. In his own statement (my bundle 4/34 paragraph 10 bottom line, social report page 3 paragraph 10 bottom line) quote"He returned to the US about once every four months to meet his relatives and friends there"unquote. His most recent traveling to the US was February 2020. I insisted that he waited for 14 days to meet our daughter after he returned from the states last February.  Obviously the Respondent does travel frequently back to the states. He is obviously financially capable, time wise he can manage too. Therefore I recommend,

- The Respondent can stop to meet our daughter each trip he returns if he wishes;

- Winter break December 21 – January 3: We take turns to spend time with S just like the current arrangement for Christmas.  In case S flies back from overseas, i.e. Hong Kong, she must return back to US one day in advance before school resumes classes so that she can adjust jet leg, i.e. arrive at home January 2^nd;

- Spring break March 29 - April 4: We can make this holiday flexible.  The Respondent can spend time with our daughter in state but no international travel to Hong Kong. If he can’t make it, I will enjoy this short break with our daughter.

- Summer break June 7 - August 18 (currently is 73 days): arrangement, the current arrangement, the Respondent will spend the 1^st half time with our daughter. I shall take the 2^nd half. Hong Kong trip can be arranged but the Respondent does need to provide a round trip ticket for S. In case I take S to Beijing during the 2^nd half holiday, I will cover half of the cost for the air ticket.

Father’s proposal

20.  The father’s position is set out in his submissions where he states inter alia as follows:

Condition 1A) S resides in Hong Kong (Petitioner stays in Hong Kong)

Schooling: S continues to attend the same school A College which is a Band 1 secondary school that she picked up by herself. She is benefited with the Anglo-Chinese School education system with proficiency in two languages.

Living Conditions: remain unchanged according to the previous court ruling

Access and visitation: remain unchanged according to the previous court ruling unless petitioner is willing to allow join custody.

Condition 1B) S resides in Hong Kong (Petitioner resides in United States)

Schooling: S will attend the same school until Hong Kong Diploma of Secondary Education Examination (HKDSE) with the assistance and support from the respondent and his wife. If S gets good grade in the current school, she is under the employee’s benefit scheme for scholarship from respondent’s wife’s employer which she has been working for more than 25 years and is under the same organization of S’s current school.

Living Conditions: S will live with the respondent and his wife at a spacious unit at Sai Kung with her well-facilitated private room to study.

Visitation and Phone Access: The petitioner could have free phone and social media access to S after school.  The petitioner could have her visitation time for 2^nd half of summer holiday and Chinese New Year in Hong Kong at the time when she always goes back to Beijing for family trip at least twice per year. If the petitioner affords the round trip air tickets of S going to the states, the petitioner could have the visitation time with S in the states with prior approval from Marital Court in Hong Kong.

Also, which can be considered, if respondent and wife are traveling back (air fare) during shared vacation time the cost of travel could be split between the respondent & petitioner in which case one part of travel (return) would be taken by S alone.

Condition 2) S resides in the States

Schooling: Petitioner must provide full details of school and show proof of confirmed enrollment. Besides, petitioner should allow the access to school managerial or teachers about S’s school performance and adjustments in school.

Living Conditions: Petitioner must provide full details of residence address with valid rental contract showing the terms and conditions and time of rental period. Respondent objects to petitioner taking S to co-habit or temporarily reside (even in short term stay) with her friends or anyone with unknown history which may pose unforeseeable risk or unnecessary psychological stress to the child.

Visitation and Phone Access: Petitioner must allow phone and social media access by respondent without any interruption. As of now, the respondent does not have plan going back to the states for holiday or family reunion. For Summer holiday and Christmas visitation by respondent, the respondent will pay visit to S in the states only when the respondent has the full financial ability to cover his necessary expense incurred.

Discussion

21.  I must now turn to consider the issues, the law and the parties’ evidence as set out in their affidavits and as given orally by them during the hearing.  I have also heard from the Social Welfare Officer, Mr. Y.

The Social Welfare Report

22.  Recommendations made to the court in Social Welfare Reports, although not binding are considered persuasive. In the event that the recommendations are not followed then reasons should be given for that in the judgment. As will be seen, in this instance, I have fully accepted both Mr. Y’s insights and his concerns. In his Remarks and Recommendations, he states inter alia as follows:

Conclusion and Recommendation

36. This is an application concerning the mother’s permanent removal of the child, S, to the US. The gathered information reveals that the mother is a US citizen who has no right of abode in Hong Kong. She is neither allowed to work nor entitled to any local welfare and health benefits. To sustain her and the child’s living, she lives on her savings and financial support from her parents in Beijing. However, as her savings is dwindling, her parents’ financial support is not endless, and the father’s maintenance to the child cannot be guaranteed, the mother is facing a survival issue in Hong Kong. She has no choice but a genuine need to go back to the US, where she can still find a job as long as she has the working capacity or apply for welfare assistance as and when necessary to support her and her child’s living. Having been the primary carer of the child since the child’s birth with a strong mother-child bonding, the mother’s application for relocation with the child and securing a better education prospect for the latter is comprehensible. Despite her disputes with the father, the mother has been on the whole able to comply with the holiday and access arrangement stated in the Court Order dated 25 November 2013 that the father’s physical access to the child has been maintained over the years. In addition, she regards the father’s continual concern to and contact with the child important for the child’s healthy development. It is believed that the mother has no intention to exclude the father from the child’s life in connection with the present application.

37. Throughout the present investigation, the child S is impressed to be a genuine, mature, and thoughtful teenager. She is consistent in expressing her clear wish to relocate to the US and pursue her study, interests and aspirations there. While she fully trusts her mother in implementing the relocation plan, she has also been doing research to try familiarizing herself with life and schooling there. She is psychologically prepared for the worst scenario and is confident of facing any possible challenges with the mother in the US. For parent-child relationship, S appreciates the quality time with her father but bemoans that it has become less and less. In the meantime, she reveals her pressure of living with the father and the stepmother and feels not being really listened to and understood by her father. She thus has resistance towards the father’s proposed care arrangement. On the other hand, the child prefers continuous care by the mother, with whom she feels more secure and adapted to live than on the father’s side. Continuous care by the mother, who has the capacity to understand, accept and respect the child, is assessed to be comparatively better for the child’s emotional well-being, developmental needs and growth, which is in her best interest.

38. In regard to her application, the mother plans to move to Southern California with the child in June 2021. By then, the child will turn 14 and can enroll in the first high school year in time. The mother admits that, apart from the contact means and address of her friend in Los Angeles, with whom she and the child will briefly stay upon arrival, she is unable to provide further concrete details regarding her future accommodation, the child’s school enrollment, and her employment at the moment. This can only be done until she has physically arrived at the American soil together with the child to proceed and materialize the plan. On the side of the father, though the child has a more distant relationship with him, he is considered having genuine concern over the child, as reflected by his initiative and effort to see the child outside her school after class or school activities aside from weekend access. As the mother fails to present concrete and adequate information about her relocation plan, the father’s objection towards the mother’s present application is understandable. Apart from doubts about the mother’s financial capacity in sustaining the child’s living, the father has worry over the child’s health and safety issues in the US as well, where the COVID-19 pandemic is more rampant. Having little trust towards the mother, the father also fears that the mother will exert negative influence on the child, and block, restrict or prevent his visitation to and communication with the child after relocation, resulting in an adverse impact on his continuing connection with the child. He thus prefers the child to stay in Hong Kong and continues her present schooling in Hong Kong until she reaches 18. In case the mother has to relocate to the US alone, the father is willing to take care of the child together with his wife, who also expresses concern about the child.

39. Notwithstanding the lack of concrete details of her removal plan at the moment, given the mother’s non-resident status in Hong Kong where she has scarcely any means to make a living, she and her child being US citizens who are entitled to live and protected under the state welfare system in the US, the research she can reasonably do in her present circumstances with respect to accommodation, schooling and employment, her plan to do the necessary precautionary measures and arrange vaccines for her and her child against COVID-19, the possible help she can enlist from her friends in Southern California, and the financial backup from her parents, the mother’s plan is considered not unreasonable and unrealistic at all. Despite her disputes with the father over child maintenance, the mother has managed to comply with the access arrangement stipulated in the Court Order. She also indicates her support for the continual contact between the father and the child for the sake of the child’s healthy development. On the other hand, if the mother’s application is declined, she will probably have no choice but to stay in Hong Kong with the child continually in view of her close and inseparable emotional ties with the latter. Nevertheless, it is expected that she will face constant financial insecurity and health stress, which will have a significant and detrimental impact on her emotional well-being. This is by no means in the best interest of the child, who is emotionally attached to the mother.

40. In consideration of the mother’s genuine need for removal, the child’s explicit wish for relocating to the US, the strong emotional ties between the child and the mother, the parenting capacity of the mother. in addressing the. Child’s developmental needs, the research the mother can reasonably do in her present circumstances while both she and the child are US citizens, the financial support which the mother can obtain from her parents, the assistance which the mother can receive in the country to be relocated, and the mother’s support of the father’s continual contacts and access to the child, the mother’s relocation application, which is assessed to be in the best interest of the child, is supported. Meanwhile, to ensure the father’s love and concern to the child, which is beneficial to the child’s continuing development, daily indirect access between the child and the father through phones calls or messaging apps with respect to the pace of the child is suggested. The father is also recommended to have reasonable access to the child when he visits the child in the US to facilitate his quality time with the child. To allay the father’s concern and worry over relocation, the mother is advised to provide more concrete information with regard to accommodation and school enrollment once they are available.

With respect I agree with all that is said here.

23.  During the trial Mr Y reiterated his concern that the mother faced considerable risks by remaining in Hong Kong. He did not accept that S had been coached by her mother to support the relocation plan. In so far as the father’s suggestion that S might live with him and his new wife, Mr Y reiterated that although this was a possibility that he was concerned about S’s relationship with her step mother which was not “that harmonious”. To put it colloquially Mr Y acknowledged that although both parents clearly loved their daughter, that it seemed clear to him that S derived her sense of security from her mother. In his report he said that S had described her relationship with her father as “complicated”.    

Relocation

Should permission be given for S to relocate to the United States with her Mother?

The Payne guidance and the welfare analysis

Generally

24.  I accept that the mother’s plan is genuine and not motivated by a desire to exclude the father from S’s life, notwithstanding the chronic nature of the ongoing litigation. I further accept that the mother has tried her very best to make the current arrangement work, but that she has really reached the end of her tether. This is especially given the father’s clear reluctance to fully support S financially going forward.

Is the mother’s plan realistic, i.e., founded on practical proposals both well researched and investigated?

25.  I accept that the mother’s plan is realistic. When considering her proposals, I shall also compare them with the father’s proposals if S were to remain in Hong Kong as part of the so called “welfare analysis”.

Housing

26.  Housing is a significant issue for the mother in Hong Kong. She is not entitled to public housing and rental is expensive. According to her latest Form E, dated the 20 October 2020, the mother receives financial support from her family in the sum of HK$27,000 per month and she is supposed to receive maintenance from the father for S in the sum of HK$6,500 per month. Her rental alone is HK$15,000 per month and this is likely to increase in time. This is by far her largest expense.

27.  The father takes issue about the so-called financial support from her family. However, at this stage, it matters not whether that money comes from the original lump sum awarded to the wife in 2011 or if her family are actually supporting her from their own resources. It is clear that it was never the court’s original intention that the lump sum would be sufficient to provide for the mother and S in the longer term.

28.  The mother said in the witness box that she had already made enquiries about accommodation and that she intended to sign a lease as soon as she and S arrived in the United States. She said that she needed to do this right away as this was also the basis upon which applications were made for schools. I accept what she says in this respect. In the immediate to short term, she had also identified a serviced apartment, which she said would also be suitable for her and S. Reference has also been made to them being able to stay with a friend if necessary. Although the father objects to this, for the avoidance of doubt the court has no difficulty with this proposal, which seems to be eminently sensible in the circumstances.

29.  In contrast the father proposes that S stay with him and his wife either with a view to the mother going first and S following, or on a permanent basis. S has said quite clearly that she is not agreeable to either proposition. I accept what she says in this respect. It is of note that the father has not filed a summons to vary care and control.      

Schooling

30.  The mother has located a school called X High School in Irvin, California. She says that S is very excited at the prospect of going there and that they have also undertaken their own research into different schools and that this was S’s preferred choice.    

31.  In so far as education generally is concerned, the mother says, and this is also mentioned by Mr Y, that S struggles in the Hong Kong education system. In particular, she finds the Chinese language very challenging notwithstanding the fact that her mother is originally from the mainland. Mr Y summarizes S’s views in his report as follows:

Child’s Views on Permanent Relocation

32. S shared to the investigating officer her explicit wish for living and studying in the US, the thought of which began to appear about three to four years ago. She revealed that she did not have a strong sense of belonging in Hong Kong. Though she has tried hard in learning Chinese, she felt highly stressed and frustrated with it. She was worried about her study and prospect in Hong Kong if she failed in Chinese, which is a major subject. Moreover, she was unable to develop deep friendship with her classmates and had the feeling of being excluded as her Chinese was no good. On the other hand, with a good command of English, she expected that she would have less study stress and could make friends easier in the US. Having great interest in acting, singing, drawing, English speech and debate with the wish to become an actress or a lawyer as her second choice in future, she found the curriculum and extra-curricular activities of X High School very appealing as they were compatible with her interests and aspirations. Besides, she felt insecure with her family’s financial condition if she and her mother continued to live in Hong Kong in view of her mother’s limited savings and need to rely on support from others while her mother could not work in Hong Kong.

33. About the idea of moving to the US and studying there, S said that she had talked to Madam C once and seized the chance to mention it to her father repeatedly on her birthday, at Christmas, and during summer holiday starting from her upper primary school years, which was met with lukewarm response Though her father mentioned bringing her to the US for a look in the past, it turned out to be his empty promise. On the contrary, S said that she could openly share with her mother about her wish, and thoroughly discussed with the latter about the feasibility of the plan. While her mother was responsible for drawing up the concrete plan of relocation, she also had an active participation by contributing her ideas. She explained that she fully trusted her mother in carrying out the relocation plan as her mother was helpful and readily available in giving her advice and pacifying her emotions whenever she had difficulties throughout her upbringing. Meanwhile, she also had the psychological preparation for the worst scenarios in case her mother could not find a job readily and settle in the boundary area of the target school district, that they might need to count on the help from others for an extended period of time and she might need to find another school. Nevertheless, she expressed her confidence in facing the possible challenges with the mother in the US.

34. S clearly stated that she wanted to go to the US together with her mother in the coming summer and start schooling there right after the summer vacation so that she could catch the time to enter the first year of the high school.  As she had been so close to her mother that the latter had become a part of her life, she expressed deep worry if her mother went to the US first and left her to the care of her father and stepmother even for a few weeks, which she could hardly accept. She would like to maintain contacts with her father through phone calls and WhatsApp and welcome his visits and physical access to her after she was relocated to the US.

32.  From a financial perspective it would not be possible for S to attend an international school in Hong Kong. I accept though that it seems that she may very well benefit from a more Western education system and one where English is the medium of instruction.

33.  The father points out that S’s current school is a Band 1 school and is therefore considered to be a very good local school. All things being equal S would stay at this school until she completes her senior school education. He also points out the advantages to S if she perseveres and is able to master both English and Chinese. The difficulty, however, is that S is currently failing in Chinese and Chinese related subjects. It does not seem likely that this will change in the foreseeable future. Thus I tend to agree with the mother that moving S now, so that she is able to complete High School in the US is a good option for her from an academic perspective.

Finances and employment

34.  The mother said that she has many different employment choices in California and that she was confident that she would be able to secure a job quickly. In the short term she would also be able to rely on her family for financial support and she hoped that the father would contribute to S’s expenses as he has been ordered to do. In the final analysis, she said that she would also be entitled to certain government subsidies including Single Parent benefit, Employment benefit and other benefits related to the Covid-19 pandemic. In contrast she pointed out that she is not entitled to any form of Government support in Hong Kong and that she has no financial safety net. This is accepted.

Access

35.  The mother pointed out that prior to Covid the father had travelled to the US on a regular basis and that it should therefore not be too difficult to arrange access when he is in the United States. She said that she had no difficulty in continuing to split the school holidays going forward. She confirmed that S communicates with her father by WhatsApp and other social apps and she anticipated this continuing once they had relocated.

The Covid-19 pandemic

36.  Both the mother and S have received their vaccinations for Covid. The father is concerned about the pandemic and its changing nature. This is understandable. He is also concerned about his ability to travel to the United States at present. Again this is also understandable. However, notwithstanding that I also accept that given S’s age, it would be optimal for her to relocate over the summer so that she is able to commence High School in August 2021. I am told that the term commences on the 18 August 2021.

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

37.  As I have pointed out above, the parties have engaged in a form of litigation warfare for a considerable period of time and for little purpose. It is not clear whether or not the father’s opposition is motivated by a genuine concern for S’s welfare, or if it is simply that he is opposing it because the mother has requested it. I am also of the view that he is deeply motivated by the financial aspects of this case and his perceived sense of unfairness around some of the decisions that have been made. Having said that it is also of note that he is now nearly 70 years old and that in any event his earning capacity is likely to diminish over time. Thus, in the longer term I also tend to accept that the mother will need to work and take on the lions share of supporting S from a financial perspective. It is therefore imperative that she is in an environment that will allow her to do that going forward.

What would be the extent of the detriment to the father and his future relationship with S, were the application granted?

38.  Once the Covid travel restrictions lift I agree that it should be possible for the father to spend time with S in the US, when he is there for training or business purposes, or when he is vacationing there. Alternatively, S could fly back to spend time with him in Hong Kong. The relocation will mean that he is not able to see S as regularly as before. But I do not accept that this will mean the end of his relationship with his daughter or that the mother will use this as an opportunity to undermine their bond. Nor do I accept that the mother has engaged in alienating type behaviours.

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

39.  I accept that refusing the mother’s application would place her in a completely untenable position.

The list of factors

40.  As indicated above the list of factors can be a valuable tool when assessing what might be in a child’s best interest. In this case it seems to me that paragraphs a), b), c) and f) are of particular import. These will be discussed briefly in turn below:

(a) the ascertainable wishes and feelings of the child concerned considered in the light of his [her] age and understanding);

41.  S is now a teenager. She is nearly 14 years old. She appears bright and articulate. She has stated clearly that she wishes to relocate to the United States and she has stated her reasons for that. I do not accept that she has been coached or that there are any other reasons why her views should not be given considerable weight. 

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

42.  S is a mixed-race child who excels in English and English related subjects but continually fails in Chinese. I accept that from an educational perspective it makes sense for her to relocate to the States at this stage of her education, so that she can commence High School there. This should also place her in the best possible position for College applications in the longer term. This is also a more affordable way forward. It seems very unlikely that either parent would be able to support an overseas application by her for a US College or that she would be able to go otherwise.

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

43.  I accept that the mother has been S primary care taking parent and that S is naturally closer to her than her father. It is of note that S does not appear to have a good relationship with her step mother. Further the step mother was not called by the father to be a witness. Further, it is of note that the father has not made a formal application for a variation of care and control.  

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

44.  The father has not fully supported S from a financial perspective for a very long time and has seemingly little insight into the effect that this could have both on her and their relationship in the longer term.

The parties in the witness box

45.  I have come to know the parties well over the years. As I have said in other judgments I do not, at this late stage find either side to be wholly credible, but I do find the mother generally more credible than the father. I also agree that the father has behaved appallingly with respect to the financial aspects of this case and has on occasions placed both the mother and S in an almost impossible position. Having said that I have also found both parties to be generally likeable. They are both reasonably bright and capable. The fact that they have found themselves locked in this repetitive cycle of litigation and re litigation is of itself a terrible reflection on our system.

What is in the best interests of S overall?

Conclusion on relocation

46.  Having considered all of the above and having weighed up the pros and cons in the welfare analysis, I accept that it would be in S’s best interests to relocate to the United States over the summer. I do not accept that it would be in her best interest to live with her father and step mother, either in the short or longer term or to continue to attend school in Hong Kong, given the alternative. She also clearly needs to continue to live with her mother. They are both US citizens and it makes sense at this juncture for them to begin a new life there together.

Access

47.  For the avoidance of doubt the access arrangements for the school holidays shall generally continue as set out in the court order dated the 25 November 2013 and as confirmed in the court order dated the 6 March 2014. The mother has made sensible proposals with respect to the issue of access and how the flights should be paid. As a general indication it seems to me that the cost of flights for S to return to Hong Kong to see her father should be split equally in the event that the mother is also returning to Beijing with S to see her family. Otherwise the father should be responsible for those costs in their entirety.

Costs

48.  Finally, on the issue of costs, given that this is a child related matter I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days.

Order

49.  Consequently, an order shall be made as follows:

1) Leave be given for the child of the family namely Y, SJ, a girl born on the XX August 2007, to be removed out of the jurisdiction of Hong Kong on a permanent basis in order to relocate to California, USA, with immediate effect;

2) For the avoidance of doubt the access arrangements for S’s school holidays as set out in paragraphs 1 – 4 of the court order dated the 25 November 2013 shall remain in place. Orders 6 and 7 shall be discharged.

3) Going forward the father shall have reasonable access to S, including remote access inter alia by WhatsApp, telephone and Zoom. 

4) There shall be an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs.

IT IS FURTHER DIRECTED THAT

5) The Respondent do immediately hand over to the Petitioner, the child’s American birth certificate and her Social Security Card (SSN) prior to her relocation out of Hong Kong;

6) A penal notice be attached to order 5);

7) Upon arrival in the United States the Petitioner do inform the Respondent of her address, whether on a temporary or longer term basis, her telephone number, S’s telephone number and details pertaining to S’s new school, once registered.

8) Liberty to apply on an urgent basis.

The Petitioner and the Respondent both appeared in person

FCMC 7831/2008

[2019] HKFC 271

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 7831 OF 2008

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J U D G M E N T

(Variation of maintenance)

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Introduction

1.  This is the second application by the respondent husband for a decrease of maintenance for the child of the family S, a girl who was born on the XX August 2007, from HK$6,500 per month down to HK$5,000 per month. He does not propose a general decrease down. The summons was drafted by lawyers and he was legally represented at the time. The application is in exactly the same terms as his previous summons in 2015 and reference should be made to the judgment dated the 19 January 2016 in that respect.

2.  I also attach a copy of the last judgment in this extraordinary piece of litigation, dated the 5 October 2016, which was in relation to the wife’s 3rd, 4^th, 5^th and 6^th judgment summonses. In particular reference should be made to paragraphs 2 and 3 where I summarize the situation from the court’s perspective. It is of note that there are further judgment summonses in the wings. It is also of note that although the husband has consistently said that he is willing to pay HK$5,000 per month for S’s maintenance, that historically this has not always been the case.

Updated background

3.  S, the child of the family, who remains the central player in the ongoing war between her parents, is now 12 years old. The wife has just turned 50. She does not work and is a full time housewife. She relies on the maintenance from the husband and presumably the original lump sum that she received on the divorce and her other investments. (reference is made to the buying of stock in her Answers to the Respondent’s Questionnaire dated the 29 January 2019). The husband for his part is now 68 years old. He has remarried and his new wife is a social worker. On his case his previous work as a part time paragliding instructor has come to an end and he has no other sources of income. The wife says that she relies also on a financial contribution from her family.

4.  As indicated previously, at this stage of the process I do not find either party to be wholly credible, although the wife is rather more credible than the husband.      

The issues

5.  There is only one issue to be determined namely should the maintenance payments for S be decreased as requested by the husband?

The Law in Hong Kong

The law 

6.  The law on variation has not changed. As stated previously the husband’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ……”

7.  It is accepted that in considering a change of circumstances, I may look at the case de novo. In other words, the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). However, it is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.   

8.  The court has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

Discussion

9.  In the husband’s 51^st affirmation dated the 16 April 2018 he says that he has been paying maintenance for S from January 2017 of between HK$5,000 – HK$5,500 per month. He says that he only receives expenses from his paragliding company – the X Paragliding Organization Limited (XPO), presumably in part because this is more tax efficient. In the Answer to the Petitioner’s Questionnaire dated 29 January 2019, which postdates when the husband now says that he stopped working, (see paragraph 12 below) the husband confirms that XPO paid for his rent (HK$5,000), food (HK$2,000), household expenses (HK$1,000), car expenses (HK$3,000), transport expenses (HK$1,000) and medical expenses (HK$100) – i.e. approximately HK$12,000 per month. It is of note that audited financial statements have not been produced in relation to this company. He points out that as he gets older that it may not be possible for him to work in this capacity longer term and that in any event competition is fierce and the business is weather reliant. He offers to pay HK$5,000 per month and HK$500 per month going forward in order to settle any outstanding amounts due and owing to the wife.

10.  Unfortunately this rather more conciliatory and sensible approach had changed by the time that the parties had returned to court for the trial. On that occasion it was the husband’s case that he could no longer work at all as a paragliding instructor and he produced a letter from the Civil Aviation Authority dated the 31 July 2018 to support his case. This states as follows:

Paragliding activities in Hong Kong

The Hong Kong Paragliding Federation has been regarded as one of the main contact points for the paragliding community in Hong Kong. We are writing to seek your assistance in promulgating the information below to your member regarding paragliding activities.  

The Civil Aviation Department (CAD) has recently noted from the internet that certain individuals and organisations seemed to be offering some form of paragliding services for hire or reward in Hong Kong. According to Regulation 22 of the Air Transport (Licensing of Air Services) Regulations (Cap. 448A of the Laws of Hong Kong), a person must not use any aircraft for the provision in Hong Kong of any air service except under, and in accordance with the conditions of, a permit granted by the Director-General of Civil Aviation (DGCA.).

CAD takes these observations seriously and would like to take this opportunity to remind your members of the legal requirements under Cap. 448A, including the provision that no air service may be offered by any aircraft without a permit granted by the DGCA. The provisions of Cap. 448A shall be complied with at all times.  Anyone who contravenes the abovementioned Regulation 22 of Cap. 448A is subject to prosecution with a maximum penalty of 2-year imprisonment and a fine of $5,000,000.

11.  He said that as a result he has not worked since July 2018 and that he is now totally reliant on his new wife who supports all of the household expenses. Put simply the Petitioner does not accept what the husband says. She asks why the husband renewed his paragliding instructor’s licence in 2019 if he is not working? She says that he has been working, either in this capacity or some other and that there have been occasions since July 2018 when he has not taken S for access because of work commitments. I tend to accept what the wife says in this respect, especially given the husband’s answers to her questionnaire referred to in paragraph 9 above, which tend to contradict his position now.     

12.  The Petitioner also believes that the husband has transferred assets to his new wife, such as a company car and the shares in the XPO in order to muddy the waters and to avoid paying her maintenance for S. It is of note that the directorship and shareholding in XPO was transferred to the husband’s new wife on the XX August 2016. Oddly he says that this was because of his potential imprisonment due to the wife’s renewed efforts to enforce the existing maintenance order.

13.  The husband for his part queries once again the financial support that the Petitioner receives from her parents and the monies held for her by her father in China. As before evidence on this was somewhat limited.

14.  It is of note that the husband’s updated Form E attaches many old documents which formed part of the previous ancillary relief proceedings and are no longer relevant to the present application. The same can be said for many questions posed by the parties which simply goes over old ground.    

Conclusion

15.  I do not accept that the husband has stopped working as a part time paragliding instructor. I tend to agree with the Petitioner that it is inconceivable in those circumstances that he would have renewed his paragliding licence, continued to live near to the paragliding sites the Sai Kung and that he answered the wife’s questionnaire as set out in paragraph 11 above. I believe he has deliberately sought to mislead the court in that respect.   Similarly, I do not believe that the wife has been totally honest about the financial relationship with her parents and the basis for the continued financial support that she receives from them. In short I am of the view that they have both been somewhat economical with the truth, when updating the court on their current financial circumstances.   

16.  I do accept as a general point that the husband is unlikely to be able to carry on working as a paragliding instructor into his old age. However, as I have said before he strikes me as a bright and resourceful man and I have no doubt at all that he will that he can continue to have an earning capacity for some time yet. S is 12 years old. The parties will need to support her for at least another 6 years at minimum.  Similarly it seems to me likely that the wife is receiving some form of income from her investments. I accept that it is difficult for her to work in a regular capacity in Hong Kong because of the situation with the Immigration Department. It is not clear to me however, why she continues to remain in Hong Kong. That is though her choice.

17.  Having considered all of the above I will dismiss the husband’s summons seeking a variation dated the 16 April 2018. The husband shall pay the Petitioner the costs of and arising out of this summons on a party and party basis to be taxed if not agreed.

18.  Finally both sides have referred to the issue of outstanding costs from time to time. As indicated previously, in the event that either party wishes to pursue the issue of the non payment of court costs through the courts, then they will in the first instance need to go through the taxation process.

19.  In so far as the examination summons (originally judgment summons) dated the 27 June 2017 is concerned this will be adjourned for a callover on the 21 November 2019 at 9:30 am with 15 minutes reserved. Both parties do personally attend that hearing.        

FCMC 7831 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7831 OF 2008

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J U D G M E N T

  (Judgment Summonses)

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Introduction

1. The applications presently before me bring into sharp focus the need to have an alternative approach to dealing with maintenance payments for children and the enforcement of those maintenance payments.

2. In this case the Respondent husband has repeatedly failed to pay maintenance for his daughter either on time or indeed at all. The parties have been in and out of court on a regular basis and have litigated on every possible aspect of the divorce process. There was a defended suit, a maintenance pending suit/interim maintenance application by the Petitioner mother and a variation of the same, applications for interim orders in relation to the child of the family S, a bitterly fought custody battle followed by an equally fierce ancillary relief trial. On occasions, the parties who are representing themselves, have sought to re litigate matters that have already been determined. It would be fair to state that generally speaking neither party appears to fully accept previous determinations made by the court and indications however firmly made tend likewise to be ignored.

3. Ongoing themes that have never been fully resolved include allegations made by the mother that the father has not and does not make full and frank disclosure of his means. The father has on occasions made the same allegation against the mother and so it goes on. Repeated attempts to seek to appeal matters have been unsuccessful. 

4. With this in mind I do not intend in this judgment to refer to the background of the case in any detail. Reference can be made as necessary to the previous judgments and Rulings made, with perhaps particular reference to the judgment dated the 19 May 2011 which dealt inter alia with the issue of final ancillary relief. It was also the first time that the mother took out a judgment summons application with respect to arrears of interim maintenance for S. On the 13 September 2012 the matter returned to court and on that occasion I committed the father to prison for two weeks. He paid the outstanding sums then due to the mother immediately thereafter. Similarly the matter returned to court on the 26 April 2013 in relation to a judgment summons issued by the wife on the 9 October 2012. On that occasion I committed the husband to prison for four weeks and once again the husband paid immediately thereafter. On each occasion he maintains that he has borrowed the sums outstanding in order to pay. Since then there have been two applications to vary the maintenance payments for the daughter – one by the wife which led to the judgment dated the 12 February 2015 and one made by the husband, which was made at the 11^th hour following the wife’s further attempts to enforce the outstanding payments. That judgment was handed down on the 19 January 2016. Both applications were unsuccessful and the maintenance for S remains set at HK$6,500 per month. S has just turned 9 years of age and the parties have been involved in this litigation for all of her young life. I have no doubt at all that she must have been affected by this in some way.    

5. There are four outstanding judgment summonses that have been issued by the wife that now require determination. In addition it is the wife’s case that there was a miscalculation in relation to the 2^nd judgment summons, dealt with previously, and that the sum of HK$7,840 remains outstanding in that respect. This will be discussed in more detail below. In general the husband does not dispute that he owes the sums claimed by the wife. Rather it is his case that he does not currently have the means to pay. In addition the wife seeks interest on the sums owed – although at the time of the trial she was unable to provide me with any calculation in that respect. (I appreciate that this is not easy given that she is acting in person). She has since provided me with a calculation of sorts. She also asked for the pre payment of the maintenance ordered and for damages. I explained that it was not possible for me to make either order. Further this is not a case where it is possible to order any form of security for payment; neither is it possible for me to order damages per se. Thus the matters to be determined relate to the monies due and owing and the appropriate penalty given the circumstances of the case.

The outstanding judgment summonses  

a) The 3^rd judgment summons dated the 27 September 2013

6. This judgment summons follows my judgment dated the 26 April 2013 also for arrears of maintenance. It covers the period from October 2012 – September 2013. The wife claims arrears of HK$84,000 (plus costs of HK$630 and travelling expenses of HK$30) as follows:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Arrears By Instalment Shortage Per Month	Grand Total
$3,000.00	October 2012	$3,500.00	$3,000.00
$3,000.00	November 2012	$3,500.00	$3,000.00
$3,000.00	December 2012	$3,500.00	$3,000.00
$3,000.00	January 7th, 2013	$3,500.00	$3,000.00
$3,000.00	February 5th, 2013	$3,500.00	$3,000.00
$3,000.00	March 6th, 2013	$3,500.00	$3,000.00
$3,000.00	April 6th, 2013	$3,500.00	$3,000.00
$0.00	May, 2013	$6,500.00	$3,000.00
$3,000.00	June 10th, 2013	$3,500.00	$3,000.00
$3,000.00	July 15th, 2013	$3,500.00	$3,000.00
$3,000.00	August 8th, 2013	$3,500.00	$3,000.00
$0.00	Sept-13	$6,500.00	$3,000.00
Total shortage Oct. 2012 - Sept. 2013		$48,000.00	$36,000.00	$84,000.00

This figure is not disputed by the husband.

b) 4^th judgment summons dated the 22 May 2014

7. The wife claimed an additional HK$27,935.50 for the period from October 2013 to May 2014 (plus costs of HK$630 and travelling expenses of HK$40) as follows:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Arrears By Instalment Shortage Per Month	Grand Total
$3,000.00	10/23/2013	$3,500.00	$1,935.50	$5,435.50
$3,000.00	Nov. 25th issued check	$3,500.00	$0.00	$3,500.00
$3,000.00	12/18/2013	$3,500.00	$0.00	$3,500.00
$3,500.00	1/15/2014	$3,000.00	$0.00	$3,000.00
$3,500.00	2/19/2014	$3,000.00	$0.00	$3,000.00
$3,500.00	3/24/2014	$3,000.00	$0.00	$3,000.00
$3,000.00	4/29/2014 for April	$3,500.00	0	$3,500.00
$3,500.00	4/29/2014 for May	$3,000.00	0	$3,000.00
				$27,935.50

Again this figure is not disputed by the husband.

c) 5^th judgment summons dated the 20 July 2015

8. The wife claimed a further sum of HK$33,000 for the period from June 2014 – June 2015 (plus costs of HK$630 and travelling expenses of HK$40) as follows:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Grand Total
$3,500.00	6/18/2014	$3,000.00	$3,000.00
$3,500.00	7/14/2014	$3,000.00	$3,000.00
$1,500.00	9/5/2014(released check) on Sept. 5, 2014 for Aug.)	$5,000.00	$5,000.00
$3,500.00	9/5/2014(released check on Sept. 5,2014 for Sept)	$3,000.00	$3,000.00
$3,500.00	10/22/2014 (10/19/2014 released check for Oct.)	$3,000.00	$3,000.00
$3,500.00	11/26/2014	$3,000.00	$3,000.00
$3,500.00	12/19/2014	$3,000.00	$3,000.00
$4,500.00	1/27/2015	$2,000.00	$2,000.00
$4,500.00	2/24/2015	$2,000.00	$2,000.00
$5,000.00	3/19/2015	$1,500.00	$1,500.00
$5,000.00	4/22/2015	$1,500.00	$1,500.00
$5,000.00	5/22/2015	$1,500.00	$1,500.00
$5,000.00	6/22/2015	$1,500.00	$1,500.00
Total Shortage from June 2014 till June 2015			$33,000.00

Once again the husband does not dispute this figure.

6^th judgment summons dated the 8 June 2016

9. The wife claimed an additional sum of HK$43,000 (plus costs of HK$630 and travelling costs of HK$40) for the period from July 2015 to June 2016 as follows:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Grand Total
$0.00	July	$6,500.00	$6,500.00
$5,000.00	8/28/2015	$1,500.00	$1,500.00
$5,000.00	10/2/2015 (for September 2015)	$1,500.00	$1,500.00
$5,000.00	10/26/2015	$1,500.00	$1,500.00
$5,000.00	11/27/2015	$1,500.00	$1,500.00
$5,000.00	12/22/2015	$1,500.00	$1,500.00
$5,000.00	1/29/2016	$1,500.00	$1,500.00
$5,000.00	2/26/2016	$1,500.00	$1,500.00
$0.00	March	$6,500.00	$6,500.00
$0.00	April	$6,500.00	$6,500.00
$0.00	May	$6,500.00	$6,500.00
$0.00	June	$6,500.00	$6,500.00
Total Shortage from July 2015 till June 2016			$43,000.00

The husband does not dispute this figure.

10. Thus as at June 2016 the husband owed the wife the sum of HK$190,605.50 made up as follows:

HK$84,000 + 630 + 30 = HK$84,660

HK$27,935.50 + 630 + 40 = HK$28,605.50

HK$33,000 + 630 + 40 = HK$33,670

HK$43,000 + 630 + 40 = HK$43,670

11. There is no dispute about these sums. In addition the wife seeks a further sum of HK$7,840.

Judgment Summons

The law

12. To reiterate and as stated previously in the other judgments and Rulings the Judgment Debtor is required to show cause.  He has to explain to the court why he should not be committed to prison for contempt.  The court needs to ascertain whether he had the ability to make the payments ordered and whether he has wilfully failed to do so.  The Judgment creditor needs to prove this “beyond reasonable doubt”.  The court has the power to commit a Judgment debtor to prison for up to three months or to commit suspended upon payment of the outstanding debt either in its entirety or by installments or to adjourn sine die with liberty to restore.   

Discussion

13. This is the fourth time that the issue of the husband’s non payment has come before me and the third time that I am being invited to imprison him for contempt of court. It also follows a very late application made by the husband last year on the eve of the wife’s original hearing for enforcement. I made the point at the time and I make it again now, that it seemed to me that the husband probably made this application for strategic reasons. In the judgment dated the 19 January 2016 I concluded as follows:  

  12.  Having considered all of the above it seems to me that there is no proper basis for considering a variation of the order. Nothing has changed since my judgment of the 12 February 2015, save for some minor matters such as an increase in rent for both sides. Thus it seems to me that this was simply a tactical move made by the husband to delay the judgment summons hearing. In such circumstances the husband’s Notice of Application dated the 22 September 2015 shall be dismissed with costs to the wife on an indemnity basis. The wife has referred to other costs orders in her latest Form E and non payment of the same. As indicated by the court before, in the event that the wife wishes to pursue the issue of the non payment of court costs then she will in the first instance need to go through the taxation process. In so far as the costs of this summons are concerned it seems to me that in the circumstances an indemnity costs order is warranted – although I accept that in reality given that the parties are acting in person and the wife is not working, this is a paper deterrent only.

14. For the avoidance of doubt I repeat my findings namely that I am of the view that the husband did have the ability to pay, but that he has simply chosen not to do so. I am particularly cognizant of the fact that on the last occasion the husband said that he could pay HK$5,000 per month and he proposed incremental increases of HK$500 over time with a view to eventually paying the HK$6,500 per month ordered. Despite that the husband paid the wife nothing at all for four months from March – June 2016. The rather unfortunate impression is that the husband is both playing with the court and the wife. The result is nothing short of catastrophic for S.

15. I do not accept the husband’s case that he is presently short of funds and thus he is not in a position to pay now. The husband has chosen not to pay maintenance for S since the beginning of these proceedings. I have found previously that he had not made full and frank disclosure of his means, that he did have the ability to pay and that he could organise his financial affairs in such a way as to make S a financial priority. He has simply chosen not to do so. He is also a bright and resourceful man and I have no doubt at all that he has the ability to make money other than as declared. In other words he has a reasonably high earning capacity but one that he does not seek to exploit for his daughters benefit.   

16. Having heard from the wife I am satisfied that she has clearly shown that the sum of HK$190,605.50 is due and owing to her as set out in paragraph 10 above. I do not however accept that the sum of HK$7,840 is due and owing in addition. I know that the wife feels strongly about this notwithstanding the fact that the sum involved is relatively small. I have looked at the papers again as requested and although I can see that there may have been an oversight of one month’s worth of maintenance I cannot even now see how she comes to the figure of HK$7,840. Reference is made to her affirmation of the 8 June 2016 in that respect. In such circumstances and given that on a judgment summons application I must be very certain of the sums outstanding I have decided on balance to remit that sum.   

17. I do not accept the husband’s case that he does not have the means to pay. At this stage of the proceedings I simply do not find the husband at all credible. It seems to me that he will do almost anything to avoid payment, notwithstanding the fact that this is money for his daughter and not his former wife and S cannot live on air alone.  

Interest 

18. In so far as the interest element is concerned although I accept in theory that the wife is entitled to interest on the sum due I am concerned about the way in which this has been calculated. I have therefore decided to adjourn this aspect of the case sine die with liberty to restore. It will be necessary for the interest element to be calculated on a daily basis and for it to be rolled over on a day by day basis. I am not confident as things stand that the calculation prepared by the wife is correct.

The order

19. Consequently it is ordered that:

   Upon examination on oath of the judgment debtor in open court, this court finds that:

•   Pursuant to the original court order dated 19 May 2011 and as reiterated in the subsequent judgments dated the 12 February 2015 and the 19 January 2016 the judgment debtor was ordered to pay the judgment creditor the monthly sum of HK$6,500 per month, payable on the first day of each month, being the periodical payments for the child of the family, plus arrears of HK$85,935.50 by instalments of HK$3,000 per month until payment was made in full.

•   He has failed to make such payment, and there is due and owing under the said order and subsequent judgments the sum of HK$190,605.50 inclusive of costs and travelling expenses as set out in paragraph 10 above. 

The judgment debtor has not shown cause why he should not be committed to prison as he had the ability to make the payments ordered as aforesaid but has wilfully failed to do so and is in contempt of the court order of 19 May 2011. 

•   Thus the judgment debtor shall be committed to prison for the period of two months.  Upon payment of the whole of the judgment debt and the costs in the total sum of HK$190,605.50 the Chief Bailiff or the Commissioner of Correctional Services, as the case may be, is directed to release the judgment debtor forthwith.

FCMC 7831 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7831 OF 2008

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J U D G M E N T
(Variation of maintenance)

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Introduction

1. This is an application by the respondent husband for a decrease of maintenance for the child of the family S, a little girl who was born on the XX August 2007, from HK$6,500 per month down to HK$5,000 per month. He further proposes that there be an incremental increase of HK$500 in another six months and so on and so forth until the maintenance presumably reaches the ordered maintenance of HK$6,500. This is on the premise that he has sufficient money to pay.

2. This application was made at the 11^th hour and appears to have been a strategic move by the husband to prevent the wife from proceeding with her enforcement action. The wife has three judgment summonses that are outstanding. The judgment summonses had been set down for trial on the 22 September 2015 with half day reserved. The husband appeared in court on that day and said he was sick. Consequently the matter was adjourned until the following day, as the court diary was free. The husband did not appear in court on the 23 September. He did however send in a sick note from a doctor, However it seems that he had been well enough to issue his application to vary the maintenance down, which is dated the 22 September, returnable in the first instance on the 23 September. When I later queried this with the husband his explanation was that as I was trying to send him to prison again that his application was justified.

3. The background to this matter is long and convoluted and I do not intend to go into it in any detail in this judgment. Suffice it to say that proceedings were issued in 2008 and that the parties have been in and out of court on a regular basis since. The level of conflict remains very high notwithstanding the intervening years. The most recent round of litigation centred on the wife’s application to vary the maintenance for the daughter upwards. I handed down my judgment in that respect on the 12 February 2015. In that judgment I set out the litigation background in some detail. In particular reference should be made to paragraphs 1 – 6 in that respect. I should add that my findings in that judgment continue to hold and that nothing has been said in this hearing which has led me to change my view on any of the main issues.

4. I made the following findings in that judgment: 

17. Thus in the circumstances I remain of the view that the parties should continue to be equally responsible for S’s expenses. Serious attempts now need to be made by the mother to return to the workforce. In any event she has retained most of the lump sum payment, which will continue to provide her with a financial buffer, as had been the original intention. She has also retained her stock and share portfolio – which I note has risen in value in the more recent past. It seems that the wife has made some additional purchases – presumably from the lump sum payment.

18. According to the employment contract produced by the husband he is presently paid HK$20,000 per month. The audited financial statements for G Limited for the year ended March 2014 show that he had a turnover of just under HK1 million (HK$972,248) and a net profit of just under HK$65,000. He also runs some expenses though his company, such as his rent, water and utilities, motor vehicle expenses etc. But even putting this at its highest his operating expenses are just under HK$230,000 per annum or HK$19,166 per month. Thus on the face of it the husband does not appear to have a great deal of money either. I am though of the view, and this has been consistent throughout, that the father is able to pay HK$6,500 per month.  

5. After doing the calculations I found that there was very little difference between the newly calculated amount and the existing order of HK$6,500 per month. Consequently I dismissed the wife’s application.  I concluded as follows: 

21. In such circumstances I will dismiss the wife’s Notice of Application dated the 10 May 2013. On this occasion I will exercise my discretion and make no order as to costs. I should add that it is unfortunate that the war between the parties continues – with each attempting at times to go over old ground and to reargue issues which have already been determined. This must stop.

22. Finally there is still an outstanding matter to be dealt with namely the wife’s judgment summonses dated the 27 September 2013 and the 22 May 2014. These summonses shall be adjourned to the 17 April 2015 at 9:30 am for a call over. I would however urge the husband to now be sensible in this respect and to pay the wife what is due and owing to her, without the necessity of a further committal hearing.   

6. The hearing on the 22 September was the substantive hearing of these judgment summonses. The wife had also issued one further summons in order to bring the arrears up to date. As I understand it there had been no attempt to try to settle the matter prior to that date.

The issues

7. There is only one issue to be determined namely should the maintenance payments for S be decreased as requested by the husband?

The Law in Hong Kong

The law 

8. The husband’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ……”

9. It is accepted that in considering a change of circumstances, I may look at the case de novo. In other words the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). However, it is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.   

10. The court has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

Discussion

11. As on previous occasions both parties attempted to bring up matters that had already been adjudicated upon. The wife believes that the husband has hidden funds, that he has other financial resources and that he is playing the system to his advantage. The husband for his part queries the financial support that the wife receives from her parents and the monies held for her by her father in China. Both parties were ordered to produce other documentation after the hearing. The respondent husband was ordered to produce i) evidence in support of his overseas trips and how they were funded and ii) evidence of his loans. The petitioner wife was ordered to produce evidence concerning the monies held for her by her father in China and the withdrawal slips in relation to the same. I received the requisite bank information from the wife. The husband for his part produced information in relation to the loans. I did not receive the additional information in relation to the trips.  

12. Having considered all of the above it seems to me that there is no proper basis for considering a variation of the order. Nothing has changed since my judgment of the 12 February 2015, save for some minor matters such as an increase in rent for both sides. Thus it seems to me that this was simply a tactical move made by the husband to delay the judgment summons hearing. In such circumstances the husband’s Notice of Application dated the 22 September 2015 shall be dismissed with costs to the wife on an indemnity basis. The wife has referred to other costs orders in her latest Form E and non payment of the same. As indicated by the court before, in the event that the wife wishes to pursue the issue of the non payment of court costs then she will in the first instance need to go through the taxation process. In so far as the costs of this summons are concerned it seems to me that in the circumstances an indemnity costs order is warranted – although I accept that in reality given that the parties are acting in person and the wife is not working, this is probably a paper deterrent only.

13. In so far as the judgment summonses are concerned, these will now be set down for hearing on the 27 June 2016 at 2:30 pm with half day reserved. Both parties do personally attend that hearing. Leave is also given to the wife to file a further judgment summons in the event that she needs to bring the arrears up to date.    

FCMC 7831 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 7831 OF 2008

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----------------------------

-----------------------

J U D G M E N T
(Variation of maintenance)

-----------------------

Introduction

1. This is an application by the Petitioner wife for an increase of maintenance for the only child of the family S, a little girl who was born in August 2007, from HK$6,500 per month to HK$19,600 per month with effect from August 2013. Although the Application for Ancillary Relief to vary was dated the 10 May 2013, the trial was a long time coming. In part this was because of issues concerning disclosure, which will be discussed in more detail below.

2. In my judgment on final ancillary relief dated the 19 May 2011 I made a number of findings which are relevant to the present application. For example I made an order that the wife receive the entire net proceeds of sale of the former matrimonial home on the basis of need. In doing so I acknowledged the difficulties that the wife faced at that time as follows:

42.  … The wife has no income at present. I accept that for reasons that are set out below that the husband has made it difficult for her to obtain a full time job. The husband has refused to pay her maintenance despite being ordered to do so. This has put the wife in an extremely difficult position. She has some funds at present, which appear to have come about in part by the sale of a diamond ring. She is unable to sell the stock because to do so would lead to significant loss. Her parents help financially as and when they can. They are not wealthy people. The wife has sole custody and care and control of S. S is based with her, and she sees her father on a regular basis. This will continue. Therefore the wife will need sufficient funds to ensure that S’s basic needs are met. If they cannot come from income, then in part they will need to come from the available asset base.

3. In so far as the earning capacity of each party was concerned I said as follows:

46.  Both parties earning capacity has been in issue in these proceedings. Early on the wife’s earning capacity came under scrutiny – hence the comments made by myself at the second maintenance pending suit hearing. Since then the wife has produced many examples of applications made by her for jobs. Initially I was quite sceptical. However during the wife’s cross examination of the husband she produced a letter dated the 25 August 2008 written by the husband to the Immigration Department. In it the husband informs the authorities that the wife was granted an employment visa, but that the documents that she produced in support of her application were false. Since then the wife has been in Hong Kong on a tourist visa. Therefore in order to work in Hong Kong she needs an employment visa. She says that this has been the biggest stumbling block to her getting a job. I believe her. Thus although on the face of it the wife has a good earning capacity this has been severely compromised by her immigration status. The husband says that he was simply responding to a query from the Immigration Department. No evidence has been produced in support of this assertion. I accept that the husband informed the Immigration Department in order to make life difficult for the wife and that he has been successful in that.

47.  The wife has placed S in a Kindergarten designed to support working parents. Therefore there shouldn’t be any difficulty from the perspective of child care in the event that the wife is able to find a job. 

48.  In so far as the husband is concerned, he is nearly 60 years of age. The wife maintains that he had a greater earning capacity previously and that by walking away from the pottery business he has severely undermined his ability to generate an income going forward. The husband denies this and has pointed to the fact that the pottery business was not doing well in any event. It is difficult to be able to form any firm view in this regard as the audited accounts have not been produced in relation to the pottery business. It is also clear that the pottery business is simply the husband’s alter ego.

49.  In any event the husband is now earning a living by virtue of his paragliding business. He says that he earns approximately HK$20,000 per month. The wife is receiving HK$3,000 per month from the husband for S and she also makes a little money from trading in stock. Her parents also assist her financially where they can. It is clear that her needs in this respect are significant and are ongoing.

4. In conclusion on the asset split I said

58.  Thus overall this division amounts to approximately just over a 50:50 split in favour of the wife. It gives the wife all of the remaining net proceeds of sale from the former matrimonial home and does so also on the basis of need. It recognizes the fact that the husband has not made full and frank disclosure of his assets and that he has sold at least one family property which remains unaccounted for. It will ensure that as far as possible the wife has some kind of financial buffer going forward and that she can meet the needs of both herself and S pending her entering into remunerative employment.

I added

63.  … By virtue of the division of assets the wife now has a little bit of a financial buffer upon which she can rely. Longer term she will need to maximize her own earning capacity.

5. Thus the order was made on the premise that the wife would need a) to obtain employment and b) that the lump sum would provide her with some form of financial security going forward. The order for maintenance for S was made on the premise that each party should pay half of S’s expenses. 

Background

6. I have set out the background to this case in my previous judgments – of which there are many!! In particular reference can be made to the judgment on ancillary relief referred to above. Since my order was made the husband has consistently refused to pay the wife the HK$6,500 per month ordered, necessitating three judgment summonses to be issued by her. There is a fourth pending. The husband has been imprisoned on two occasions and he has then paid what was due and owing to the wife for S at that time. He says that he has had to borrow in order to do so. This is not necessarily accepted. The husband has continued to work primarily as a paragliding instructor. He also imports various items relating to paragliding for sale in Hong Kong. The mother is still unemployed. It seems that there may still be issues concerning her immigration status and that she has not made any further attempts to obtain a permanent HKID card. She is presently in Hong Kong on a tourist visa despite the fact that she has now been in Hong Kong for a considerable period of time. It is not clear whether she has made any serious attempts to find work in the more recent past. The husband has applied for an employment visa and eventually produced a copy of a letter from the Immigration Department dated the 25 April 2014, which was attached to his closing submission. It is not clear if he has been successful in that regard. In the witness box he confirmed that he was currently in Hong Kong on a tourist visa and that he was able to earn money but he was not able to work. I am not sure of the up to date position or whether or not the husband is correct in what he says. 

The issues

7. There is only one issue to be determined namely should the maintenance payments for S be increased from HK$6,500 per month to HK$19,600 per month?

The Law in Hong Kong

The law 

8. The wife’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ……”

9. It is accepted that in considering a change of circumstances, I may look at the case de novo. In other words the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). However, it is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.   

10. The court has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

Discussion 

11. The wife argues that notwithstanding the basis of the original order, i.e. that the parties should be equally responsible for S’s expenses, that the husband should now be responsible for 100% of S’s expenses. She also maintains that as S is now older that it is inevitably more expensive to maintain her. In her affidavit in support dated the 10 May 2013 she set out the expenses for the household as follows:

3.  Therefore our minimum monthly expenses will be as follows:-

General
Item	Amount
Rental	HK$14,000
Utilities	1,500
Food	5,000
Household expenses	1,000
Other	500
Sub-total: General cost for each person in the household: HK$21,000.00/2 persons = HK$10,500.00/person	HK$21,000.00

Reduced Personal expenses per month:
Item	Amount
Meals out of home	HK$500
Transport	500
Clothing / shoes	200
Personal grooming (including haircut and cosmetics)	500
Holidays	1,000
Medical / dental	100
Sub-total:	HK$2,800

Family child’s expenses per month:
Item	Amount
School fees	HK$4,000
Extra tuition fees	1,000
Transport to school (including school bus )	1,500
Medical / dental	100
Entertainment / presents	400
Holidays	900
Clothing / shoes	500
Other Transport	100
Uniform	100
Lunches and pocket money	500
Sub-total:	HK$9,100.00

12. In her Form E dated the 18 June 2013 her expenses are put as follows:

Part 4  Current Monthly Expenses

4.1  General
Item	Amount
Rent	11,000.00
Mortgage instalments	0.00
Utilities (electricity, gas, rates, telephone & water)	1,500.00
Management fees	0.00
Food	5,000.00
Household expenses	1,000.00
Car expenses	0.00
Insurance premia	0.00
Domestic helper(s)	0.00
Other (specify)	500.00
Total monthly household expenses Attach copies of the latest rental receipt.	HK$19,000.00

4.2  Personal
Item	Amount
Meals out of home	500.00
Transport	500.00
Clothing / shoes	200.00
Personal grooming (including haircut and cosmetics)	500.00
Holidays	800.00
Medical / dental	100.00
Tax	0.00
Insurance premia	0.00
Interim maintenance	0.00
Contribution to parents	0.00
Dependent family members	0.00
Other (specify)	0.00
Total monthly personal expenses	HK$2,600.00

4.3  Children
Item	Amount
School fees	1,760.00
Extra tuition fees (S)	150.00
School books and stationery	100.00
Transport to school (including school bus )	0.00
Medical / dental	100.00
Entertainment / presents	400.00
Holidays	900.00
Clothing / shoes	500.00
Insurance premia	0.00
Lunches and pocket money	0.00
Other Transport	100.00
Child-minding fees	0.00
Uniform	50.00
Others (specify)	200.00
Total monthly personal expenses for children	HK$4,260.00
Total Monthly Expenses (4.1 + 4.2 + 4.3)	HK$25,860.00

13. The difficulty with the wife’s position initially is that she had not made full and frank disclosure of her asset base in her updated Form E in that she had not referred to the lump sum payment. It later transpired, following the filing of two further affidavits, that she had transferred these monies to her father, who is currently holding RMB750, 000 on her behalf in Beijing. This is important because in the original judgment the intention was clear i.e. that this money was to be used in part as a financial buffer in the event that the wife was unable to find work, or there were other difficulties, as has proved to be the case. Quite rightly the husband insisted that the wife provide further information – which she did.

14. The wife also says that her family continue to provide her with some financial support – but because they are “family” a record of this has not been kept. It is not clear if they continue do so in addition to holding the lump sum on the wife’s behalf – or if these monies now come from the lump sum payment.

15. The wife also continues to allege that the husband has a greater earning capacity than that admitted to, that he continues to run his former pottery business on the side and that he receives a lot of his income in cash, which is not declared. In my original judgment dated the 19 May 2011 I said as follows:

The companies

39.  The wife suggests that the husband is continuing to run the pottery business on the side, possibly using third parties to front the business. Although this is clearly her suspicion, no hard evidence was produced in support of her assertions. Again I do not intend to take this matter any further at this time. 

16. Unfortunately that largely remains the case now. The wife refers to things that her daughter has said to her, she makes allegations against the husband, she says that the husband is clever and knows how to play the system – but there is very little in the way of hard evidence to support what she says.

17. Thus in the circumstances I remain of the view that the parties should continue to be equally responsible for S’s expenses. Serious attempts now need to be made by the mother to return to the workforce. In any event she has retained most of the lump sum payment, which will continue to provide her with a financial buffer, as had been the original intention. She has also retained her stock and share portfolio – which I note has risen in value in the more recent past. It seems that the wife has made some additional purchases – presumably from the lump sum payment.

18. According to the employment contract produced by the husband he is presently paid HK$20,000 per month. The audited financial statements for G Limited for the year ended March 2014 show that he had a turnover of just under HK1 million (HK$972,248) and a net profit of just under HK$65,000. He also runs some expenses though his company, such as his rent, water and utilities, motor vehicle expenses etc. But even putting this at its highest his operating expenses are just under HK$230,000 per annum or HK$19,166 per month. Thus on the face of it the husband does not appear to have a great deal of money either. I am though of the view, and this has been consistent throughout, that the father is able to pay HK$6,500 per month.  

How much maintenance should the husband pay going forward?

19. There is a slight discrepancy between the figures provided by the wife in her affidavit in support and those provided in her Form E, notwithstanding the fact that there is only one month between the filing of both documents. In the main this can be explained by the fact that S is now attending school and that the parties are no longer required to pay kindergarten fees. In such circumstances I intend to rely on the figures provided by the wife in her Form E. In doing so I acknowledge that the wife was paying more than 50% of the costs associated with raising S whilst she was at kindergarten. I do not however intend to make any adjustment for this.  

20. On the premise that the parties should be equally responsible for S’s expenses going forward, the husband should contribute HK$4,750 towards S’s share of the general expenses. (HK$19,000 divided by 2 = HK$9,500 each for the wife and S. HK$9,500 to be divided equally between the parties to cover S’s share of the general expenses = HK$4,750). In addition each party should pay half of S’s actual expenses in the sum of HK$2,130 each. (HK$4,260 divided by 2 = HK$2,130). Thus in total the husband should be contributing HK$6,880 (HK$4,750 plus HK$2,130 = 6,880), which is only slightly more than the HK$6,500 per month that he is supposed to be paying at present in any event.

Conclusion   

21. In such circumstances I will dismiss the wife’s Notice of application dated the 10 May 2013. On this occasion I will exercise my discretion and make no order as to costs. I should add that it is unfortunate that the war between the parties continues – with each attempting at times to go over old ground and to reargue issues which have already been determined. This must stop.

22. Finally there is still an outstanding matter to be dealt with namely the wife’s judgment summonses dated the 27 September 2013 and the 22 May 2014. These summonses shall be adjourned to the 17 April 2015 at 9:30 am for a callover. I would however urge the husband to now be sensible in this respect and to pay the wife what is due and owing to her, without the necessity of a further committal hearing.   

FCMC 7831 / 2008

   IN THE DISTRICT COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   MATRIMONIAL CAUSES

   NUMBER FCMC 7831 OF 2008

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BETWEEN

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J U D G M E N T

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Introduction

1.  There are a number of applications before me concerning the arrangements for the only child of the family – a little girl who I will call S, who was born on the XX August 2007. She is now almost 2½ years old. The father appears to be seeking either joint custody and shared care; or sole custody and care and control or in the alternative sole custody to the mother and joint care and control. To put it at its simplest he wishes to be fully involved in all areas of his daughter’s growth and development. The Petitioner mother seeks sole custody and care and control with defined access to the father. She also seeks general leave to remove S out of the jurisdiction twice a year in order to visit Beijing for one month on each occasion.

Background

2.  On the 4 July 2008 the mother issued a divorce petition based on the father’s unreasonable behaviour. The parties have been in and out of court on a regular basis since, seemingly finding it impossible to agree on almost anything. The mother is originally from Beijing and the father is an American national. On the 17 November 2008 the father issued a summons for interim custody/care and control and/or reasonable access. On the 22 November 2008 I handed down my first ruling in relation to maintenance pending suit/interim maintenance for the mother and S. The father was ordered to pay the mother HK$3,000 per month for S. The mother had recently resumed working at that stage. On the same day I made an order for interim defined access as follows:

2.  The Respondent do have interim defined access to the child of the family S, (i) on each and every Saturday from 9:00 a.m. to 1:p.m. commencing on 22^nd November 2008 and (ii) on each and every Tuesday and Thursday from 8:00 a.m. to 12:p.m.;

3.  Pick up and drop off of the child to be at Kowloon Bay MTR Station. Other access to be by agreement between the parties;

4.  There shall be a Supervision Order in relations to these arrangements until final determination of the matter.

3.  This order has largely governed arrangements for S since. Unfortunately however, that has not lessened the level of conflict between the parties – which has, at times, been intense. The mother accuses the father of being violent, of being a sex addict and of being controlling. The father accuses the mother, amongst other things of being manipulative and of being unsupportive of him in his role as a father. The police were called to the matrimonial home on a number of occasions prior to the mother seeking refuge in a centre for abused women. She now lives in rented accommodation. She is not working. She previously assisted the father in his pottery business. It seems that he is now concentrating on working as a paragliding instructor. He also imports paragliding material into Hong Kong.

4.  On the 20 February 2009 the matter came before me again. On that occasion the wife sought an increase of maintenance on the basis that she had recently been made unemployed. I made an order that the husband pay the wife maintenance pending suit for herself in the sum of HK$15,000 per month and that he continue to pay HK$3,000 per month for S. Further applications have been made to vary maintenance and the wife has also issued a judgment summons.

5.  On the 12 March 2009 the wife sought leave to remove S temporarily out of Hong Kong in order to visit her parents and other relatives in Beijing. She wished to leave for a month. The husband vigorously opposed the wife’s application. On the 27 March 2009 the husband issued an affirmation in which he complained inter alia of “abuse of parental visitation rights”, “rejection of petitioner request to remove daughter from HK” and “Request of extension of parent access time”. Another affirmation was filed on the 31 March 2009 seeking to be heard on “education” and asking to change the start time of the access. On the 15 April I gave leave for the wife to take S to Beijing from the 9 May to the 6 June 2009. I also varied the original order on access as follows:

2.  Paragraph 3 of the Court order dated the 22^nd November 2008 be varied to the extent that the Respondent do have interim defined access on each and every Saturday from 9:00 a.m. to 5:00 p.m. commencing on the 18^th April 2009 and on each and every Tuesday and Thursday from 8:30 a.m. – 1:00 p.m., other than during the holiday in Beijing.

3.  The Respondent shall have telephone access / skype access to S whilst she is in Beijing everyday between 8:00 a.m. and 9:00 a.m.

6.  On the 8 May 2009 the husband seemingly in support of an injunction in relation to that order filed a further affirmation. That application was adjourned to be heard with the parties respective applications for custody.

7.  On the 16 December 2009 the wife issued a further application to remove S out of the jurisdiction in order to visit her relatives in Beijing over Chinese New Year. I will deal with this application also in this judgment.

8.  In addition to the ongoing dispute over S and money, the parties were also unable to agree on the divorce itself. Although some attempt was made to settle the issue of the divorce in a constructive and sensible way, ultimately these attempts fell apart and the matter came before me again for adjudication in July. On the 31 July 2009 I handed down a judgment in which I granted the wife a decree nisi of divorce based on the husband’s unreasonable behaviour. The husband’s cross petition was dismissed. This is then where the matter stood at the time of the trial.

The issues

9.  It seems to me that the following issues now fall to be determined by this court:

Should custody and care and control of S vest in the sole name of the mother or in the sole name of the father? Or should the parties have joint custody of S?

Once the above has been determined, what orders should be made for access? How should those arrangements be defined if at all?

Each parties case

The wife’s case

10.  The wife seeks sole custody and care and control of S. She complains that she cannot communicate with the husband in any shape or form. She relies on her affirmations as evidence of what has happened in the past. She complains of violent behaviour – especially once she discovered that the husband was being unfaithful. At present she is assisted by her parents, who take it in turns to come to Hong Kong to help her look after S. She is not working at present. She intends to send S to Kindergarten probably after CNY. She will then be 2 ½ years old. She wishes her to go to all day school. When asked for her practical proposals going forward she said in her closing as follows:

1.  As S will be in school shortly, she will need to have her home work done, go thru different tests, sign up some classes besides the school hours to build up her own hobby / interest therefore we will need to work our schedule around based on hers.

2.  Considering the Respondent doesn’t have a proved record of raising our child alone, his careless has caused our dear Pilot died in vain [the family dog]; his careless has made S suffering on her body; emotionally he could let S crying for almost an hour just because she wanted to get to her mother, I would like to propose the access as follows:

-  No staying access.

-  One full day access either Saturday or Sunday can be flexible.

-  S is a human being, it’s hard to divide a little girl into 2 parts especially she will have her own schedule of doing things.  Therefore I suggest to leave the public holiday open depending on S’s schedule.  Will try to make room for her father during western holidays, such as Easter & X’mas.

-  School holiday: Will make full day access available to her father during the weekday, depends on her activity schedule & travel plans.  I prefer leave it flexible.

In view of the above, I pray to Your Honor that,

-  I shall be granted the sole custody of the family child S.

-  I shall be allowed take S out of Hong Kong twice a year, about 30 days each trip without asking for permission again & again.

-  The Respondent shall be ordered return back S’s American Birth Certificate as well as her American Social Security Card to the mother / Petitioner.

The husband’s case

11.  The husband maintains that he is equally capable of caring for S on a fulltime basis. He has made a number of allegations about the wife’s ability to look after S and her approach to childcare. When asked for his practical proposals going forward he said as follows:

Custody proposal

Custody: Joint physical with shared legal custody & equal shared time.

Sole – father, respondent, as above without shared legal custody.

Sole – mother, petitioner, as above with shared legal custody to father.

Objective – to be involved in all areas of growth, development of daughter provide a good, suitable, clean home w/care, understanding & love.

to provide & maintain good education.

Phase 1 of education, daughter should only be enrolled in to kindergarten, morning session

to establish and maintain good health care program.

to foster & insure child maintains a good relationship with mother.

to insure daughter is never left alone or unattended to.

to be flexible w/mother in all areas related to the best interest of child.

Conditions: each and every aspect related to child must be shared unless one parent shows to be unwilling to resolve issues.

The Law in Hong Kong

12.  The law governing applications concerning children in Hong Kong can be found at s. 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 where it is stated that the court has the power to make such order as it thinks fit for the education and custody of children under the age of 18 years.

13.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which refers to the welfare of the child as being the first and paramount consideration of the court.

14.  In addition there is a checklist recommended by the Law Reform Commission, which many Judges, myself included, have found useful when determining issues relating to children. For ease of reference I have reproduced that checklist below. I will not refer to this checklist in its entirety when considering the issues, but I will refer to those sections which seem to me to be of particular relevance when considering the matter overall.

Checklist

15.  

(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.”

Joint Custody v Sole Custody

The Law in Hong Kong

16.  Given that the parties are litigants in person, I have reproduced an excerpt below from the recent case SEB v ZX(Custody) [2007] HKFLR 165 where I referred to the current law in Hong Kong at that time on joint versus sole custody:

Joint custody means that the parents should be able to make the major decisions concerning their children’s life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively. The report [Law Reform Commission report] describes it thus

“2.32  Joint custody is where the court grants custody to both parents, although physical care and control is usually granted to only one of them.  L explains the rationale behind the joint custody order: that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parties are given that right.  ‘Such order symbolizes divorced or separated parents playing a joint role in the upbringing of the child and neither is excluded’”.

15.  Sometimes orders for joint custody are aspirational.  They are made in the hope that the parties’ will be able to work towards co-operating with each other in the future.

17.  In that case sole custody was awarded to the Father with shared care to both parents. I picked up this theme again in MJP v JWP FCMC 9154 of 2008 dated 16 December 2009. In that case I referred to a recent Court of Appeal decision in Hong Kong where an order for joint custody was replaced with an order for sole custody.

18.  Rogers VP made the following points:

24.  The important point, nevertheless, is whether given the existence of the lack of co-operation between the parties it would be right to order there be joint custody.  The basis upon which the judge so ordered appears to have been what has been referred to as aspirational.  In other words it was an order made so as to encourage the parties to co-operate.  In my view that is more a matter of wishful thinking than a matter of practical reality.  …

26.  Given the current relationship between the parties it appears to me that the only order which could be made as to custody is that one or other of the parents should have sole custody.  In this case, clearly it is the petitioner who should have custody of E.  As Mr Recorder Yuen pointed out, that does not mean that all major decisions would be made by the petitioner.  If no agreement could be reached about a major decision in respect of E then, no doubt, resort can be had to the court.  In respect of other matters, which would not be regarded as major matters, those decisions would no doubt be made by the parent having custody.  In so far as the respondent would not have control in respect of such lesser, day-to-day, matters, that is an inevitable consequence of a sole custody order with care and control.

19.  I should also add that in MJP v JWP FCMC 9154 of 2008 reference was also made to recent research on joint parenting which for ease of reference I also reproduce again here, given the father’s request for shared time.

Research evidence now provides some very clear indicators of what parents can do that will best support positive outcomes for children after separation or divorce. The overwhelming message from studies around the world is that relationships with both parents do matter but it is the quality of relationships that parent maintain with children and with each other that are important, not the quantity or frequency of contact (P Amato and J Gilbreth, ‘Non resident fathers and children’s well being: a mela analysis’ [1999] Journal of Marriage and the Family 557). Put simply, it is what parents do with children, and their ability to focus on the child’s needs that counts, not how much time parents have with children. Expressed in psychological terms, Whiteside and Becker underscore the importance of relationship quality not the clock, noting that:

‘Neither the shape of the care-giving network nor the time-sharing schedule has the most potent effects on children’s development.  Rather, the quality of the parental alliance and the parents’ warmth, sensitively, good adjustment, and discipline style make the difference between a well-adjusted child and one who is angry, scared, or limited in cognitive and social skills.’  (M Whiteside and B Becker, ‘Parental factors and the young child’s post divorce adjustment: a meta-analysis’ [2000] Journal of Family Psychology 23.

There is now a small but growing body of research specifically on the outcomes of shared care or 50/50 arrangements.  Perhaps not surprisingly, if appears again to be the quality of relationships – between parents and between parents and children – that influences whether the arrangements work for children or not.  Two studies have reported that substantially shared or 50/50 arrangements can work well for children but where relationships are already good.  In Australia one major study found that the key ingredients of successful shared care were flexible and child-centred parents who were able to co-operate and, critically, where both parents had opted for shared care rather than having it imposed by a court (B Smyth: http://www.aifs.gov.au/institute/pubs/resreport9/main.html, 2004 last accessed 3 August, 2009).  A similar message emerges from a study based on interviews with British children (C Smart, B Neale and A Wade, The Changing Experience of Childhood (Polity Press, 2001).  This research found that children were positive about shared care again where arrangements were flexible and child-centred and where children’s views were heard.

Shared care, therefore, is one form of arrangement which can work for children.  The great challenge, however, is that parental cooperation – are typically absent in litigated or high conflict cases.  Indeed, studies of 50/50 shared care report poorer outcomes for children in such cases (J McIntosh and R Chisholm ‘Shared care and children’s best interests in conflicted separation’ [2008] Australian Family Lawyer 1).  In two recent Australian studies, McIntosh found a link between high levels of emotional distress in children, substantially shared care and ongoing parental conflict and acrimony.  In a follow up study McIntosh found that sharing care in this population did not help to reduce parental conflict (J McIntosh, Legislating for Shared Parenting’ [2009] Family Court Review 389).  Instead continuously shared care parents remained locked in conflict 4 years after the initial intervention when conflict had reduced in other arrangements.  McIntosh also found that while fathers were satisfied with arrangements nearly half of children wanted to change from shared care.  This is similar to the British children in Smart’s study cited above who were unhappy in inflexible arrangements where parents were hostile to each and where children had no influence about how their time was ‘parcelled out’.

The evidence base on shared care is small but the findings of these studies are consistent both with one other and with the wider literature on the importance of relationship quality not quantity.  The message is that good relationships with both parents can help children thrive where arrangements are child-centred, flexible and co-operative.  However, the story is different where parents are locked in conflict.  There are no robust research studies that find that children benefit or litigating precisely the opposite, with research finding poorer outcomes for these children.  There is also some evidence that shared care arrangements are much less durable than other arrangements in high conflict families (J McIntosh, ‘Legislating for Shared Parenting’ [2009] Family Court Review 389).

[September 2009 issue of Family Law, vol. 39 p. 831 entitled Shared Parenting: The Law, The Evidence and Guidance From Families Need fathers by Joan Hunt, Judith Masson and Liz Trinder]

Discussion

20.  I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing. In addition I heard from the mother’s parents. Two social workers also attended court to give evidence, Mr L and Mrs M.

Should custody and care and control of S vest in the sole name of the mother or in the sole name of the father? Or should the parties have joint custody of S?

The child’s physical, emotional and educational needs

21.  Both parties made complaints against the other in relation each side’s ability to take care of S. On occasion the conflicts between the parties have led to Police intervention. Although S is young, she has been present during some of these conflicts and has been witness to them. Clearly this cannot be in S’s best interests.

22.  Having seen the parties in the witness box I am satisfied that in the words of the Mrs M’s Social Investigation report of the 9 November 2009:

In this case, the parents are unable to relate rationally during the divorcing period though both of them are caring parents. Despite complaints between the couple over their respective behaviour over child care issues and access arrangement, I do not think this separated couple will deliberately do anything harmful to the nourishing development of their dearest daughter. While it is difficult to comment on their views on child care approach which is one of the conflicts between the couple, it is also evident that the core of the present access problem lies in their lack of faith and trust towards each other for their respective unresolved painful feelings arising from their past unhappy experiences.

23.  I accept that the child’s physical, emotional and educational needs are generally provided by each of the parents, when she is with each of them. I am also of the view that she may have been affected by the intense level of conflict between the parents and that this may be more of a risk going forward unless the parents are able to manage their conflict in a more appropriate way.

Childcare plan/Status Quo

24.  The Father proposes that S spend 50% of her time with him. Although there is some confusion over the terminology used, he seems to be seeking either joint or sole custody. He is presently working from home and says that he would be able to care for S, notwithstanding the fact that he is required to work. He presently has a part time domestic helper. He says that he has proved that he is a capable parent and that he wishes to continue to parent her. He has on occasion said that he would hire a domestic helper to assist. He wishes S to attend an International Kindergarten such as G Preschool and Playgroup in Clear Water Bay and to attend half day school.

25.  The Mother proposes that the present situation continue – i.e. that S continue to live with her. Her parents presently assist her to care for S. She says that S is happy and settled and that there is no reason to alter the status quo. She wishes S to attend a local kindergarten and to start whole day school. In that event the present access arrangements with the Father would need to be altered.

26.  Although both childcare plans have been well thought out I tend to agree with the social welfare officer, Ms M when she recommends that

The present enquiry revealed that both the Petitioner and Respondent are keen on having the child’s custody. For the child of this age, S is in need of security, routine and structure in her everyday life. Having undergone considerable changes and readjustment following the parents’ separation, she needs a secured and stable living environment for a healthy development. Madam B has been providing proper care to the child since the spousal conflict on 1.11.2008. She has also demonstrated her ability in taking up the childcare responsibilities with strong social support and constant assistance from her parents. On the other hand, Mr Y is sincere in keeping an intimate relationship with his daughter and shouldering parental responsibilities through the pursuit of custody. During the past year, Mr Y is trying his best to build up the relationship with the child by paying regular visitations, which can maintain bondage and is considered to be beneficial to the child’s development. There is no doubt about his love toward the child as a father. However, it appears that any change of the caring hand at this stage will require the child’s immediate adjustment which will likely tilt the balance, not to mention that the father’s caring ability has yet to be tested. There being the situation, the chance that Madam B and her daughter maintaining a normal and stable life should be high if the custody of the child is granted to the mother who will receive full support from her parents as well.

I agree with that analysis of the situation. I should add that although the social welfare reports are not binding on the court, reasons do have to be given in the event that the court decides to depart from the recommendations made. In this instance I have in the main accepted the recommendations proposed. In the first report the SWO recommended that a further report be compiled as the mother had just moved out of the matrimonial home. He recommended reasonable access to the father. He later recommended custody to the mother and reasonable access to the father. He suggested that a supervision order be put in place. In the witness box he said that he was of the view that a supervision order was no longer necessary. The second social welfare officer recommended custody to the mother and all day access to the father on either Saturday or Sunday.

The nature of the relationship of the child with each of the child’s parents and other persons

27.  I accept that S has a close relationship with her mother and her maternal grandparents who are helping to raise her. She also has a close relationship with her father and it is important that that continue to be nurtured.

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

28.  This is a high conflict case. It is imperative going forward that S is shielded, as far as possible from any conflict between her parents. Much of the conflict appears to occur during handover times. Thus it seems to me that the parties should consider ways of minimizing their conflict by arranging, for example, for a third party to hand the child over to the other parent.

Conclusion

29.  Given the findings made above it seems to me appropriate in all the circumstances of this case for sole custody of S to vest in the mother. In making this order I am mindful of the final recommendation made by Ms M

In view of the above, I would like to recommend for the Court’s consideration, that the custody of the child, namely S be granted to the Petitioner, Madam B, with the present defined visiting access to be granted to the Respondent, Mr Y and the visiting access to be changed to a whole day session from 9:00 a.m. to 5:00 p.m. on either Saturday or Sunday if and when Sabrina receives education.

Once the above has been determined, what order should be made for access? How should those arrangements be defined?

30.  Although I accept Ms M’s recommendation on custody I have some concerns about her recommendation on access. S has had regular and frequent access with the Father, with whom she appears to have bonded. At present she sees him three times per week. It seems to me that it is imperative that she continues to see her father regularly. I can see no reason why she should not continue to see him at least twice per week, notwithstanding kindergarten and for the father to begin to have staying access with her. In time I would expect S to spend half of all of the school holidays with her father. I will not make that order now. Staying access will be introduced. S will continue to see her father frequently. Given the high level of animosity between the parties it seems to me to be imperative that access is clearly defined, so that each party is aware of their obligations and their need to clearly abide by them. I will not, for the time being, give either party general leave to remove S from the jurisdiction of Hong Kong.

Costs

31.  Given the nature of this dispute there shall be no order as to costs.

32.  Consequently I will make an order as follows:

1) Sole custody and care and control of the child of the family namely YSJ, a girl born on the XX August 2007 be to the mother with defined access to the father as follows:

a. Staying access on the first weekend of every month from 9:00 am on Saturday until 5:00 pm on Sunday.

b. Otherwise access every weekend all day on Saturday from 9:00 am – 5:00 pm.

c. Access shall continue from 8:30 am – 1:00 pm on Tuesday and Thursday’s until S starts kindergarten. Thereafter access shall be on Wednesday afternoons after school until 7:00 pm.

d. Access on single public holidays to be alternated commencing on the 21 May 2010 when the Father shall have access from 9:00 am – 5:00 pm.

2) Leave is given to the Mother to remove S from the jurisdiction of Hong Kong for the Chinese Lunar New Year holiday from the 24 January – 22 February 2010 inclusive subject to her undertaking dated the 16 December 2009 to return S to the jurisdiction of Hong Kong when called upon to do so. Access set out above shall be suspended whilst the mother and S are in Beijing.

3) The Father shall have telephone access/skype access to S every day whilst she is in Beijing between 8:00 am – 9:00 am.

4) The Father shall have staying access to S over the Easter holidays from 9:00 am on the 2 April to 5:00 pm on the 6 April 2010.

5) Other access by agreement between the parties.

6) A progress report to be called for in 9 months time.

7) There shall be no order as to costs.