BWBP v. T KP nee DP

FCMC 2128 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2128 OF 2009

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

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Introduction

1.  This is an application by a Petitioner father originally dated the 8 March 2016 and amended on the 9 September 2016 as follows:

Upon the Undertaking of the Petitioner to pay the incidental expenses including toiletries, haircuts and sundry expenses incurred by the children T a boy born XX September 1999 and C a boy born XX January 2003 at A whilst they are enrolled as International Boarding Students by maintaining an appropriate cash balance in their respective bank accounts;

1. Undertaking K paragraph (i,ii) (page 8) of the Order dated 26 February 2010 be amended to state the following : The Petitioner pay for boarding and school fees only.Undertaking K (ii) be amended to state the following: From the date of this Order and until each child attains the age of 18 years, the Petitioner shall reimburse the Respondent for all medical and dental expenses and reasonable clothes and shoes for each child within 14 days of production of receipts by the Respondent and such original receipts to be produced by the Respondent to the Petitioner within 28 days of such expense being incurred AND FURTHER the Petitioner undertakes to pay for these reasonable expenses during the children’s tertiary education with such amount to be provided directly to the children where appropriate.

2. Paragraph 2 (Page 9) of the Order dated 26 February 2010 is removedbe discharged from the date of this summons.

3. The reimbursement of HK$157,500.00 by the Respondent for outstanding payments as per written agreement made August 2014 on commencement of T attending boarding at A in Australia be made and the written agreement be added in the Order dated 26 February 2010.

4. The reimbursement of HK$168,000.00 (HK$7,000.00 per month) due to loss of rental income from the Golf Cart for a 2 year period commencing December 2012 until January 2015 according to undertaking J paragraph (ii) (page 7) of the Order dated 28 February 2010 be made.

4. Paragraph 3 of the Order dated 26 February 2010 be formally discharged as at date of Respondent’s remarriage.

5. Costs.

2.  In summary the father seeks to discharge the original order for maintenance for the two children of the family in the sum of HK$21,000 per month or HK$10,500 per month per child and to amend other undertakings under Recital K as set out above.  In part this is because he is now responsible for higher school fees than before as the boys are at boarding school, although on his case he is in effect also seeking reimbursement from the mother for this expense in any event. There are also other issues from the father’s perspective including that of the mother’s earning capacity. The father is of the view that the mother should be earning more than she does and this is also something that he asks the court to take into account. The mother for her part asks that the original order of HK$21,000 per month remain in place. She has not issued any summons of her own, but makes the point that Recital K in the original court order does not work and has not done so for some time. She says that she is willing to pay for 50% of the boys’ general expenses. She also says that she is now responsible for the vast majority of their incidental expenses as she is living close to the school and is in her words “the hands on parent”. There are also other issues concerning a so called “side agreement” entered into by the parties in August 2014. This was not endorsed by the court. The father asks that this agreement be upheld. The mother for her part says that it should not be.

Background

3.  The background to the marriage is set out in my judgment of the 1 February 2012 on Relocation – see in particular paragraphs 3 – 22. Reference can be made to those paragraphs as necessary. In summary this is a highly conflicted situation which started off with all of the best intentions in that originally the parties were able to come to terms with respect to both their finances and the arrangements for the two children of the family. Both parties were assisted by lawyers at the time and the children’s order was granted by consent on the 26 May 2009 followed by the financial order on the 26 February 2010. Subsequently, the mother sought to relocate to South Africa, which was resisted by the father and led to a full contested hearing on the issue. Ultimately that application was denied. The mother did not then seek to further vary the arrangements for the two children, although that was an option that had been open to her, and for a while their care continued to be shared by the parents as before. In essence, as I understand it, the father would care for the boys when he was not flying and the mother would care for them otherwise. The father is a pilot with a well-known airline in Hong Kong and therefore has a significant amount of free time. The mother for her part is a qualified speech therapist with a niche area. She worked part time in Hong Kong and also took up a position as an Educational Assistant at the school that the boys both then attended in Discovery Bay.

4.  In 2014 the eldest child T expressed an interest in attending boarding school. It seems that there was a lot of discussion and negotiation surrounding this and that the mother eventually agreed to pay the father HK$10,500 per month because at the time the father had said that he could not afford to pay the boarding school fees. It is the mother’s case that the father would not agree to T attending boarding school otherwise. Reference is subsequently made to this agreement in a number of e-mails after August 2014. It then followed that the mother would seek to offset monies that she said were owed to her by the father under Recital K from the HK$10,500 per month. Confusion ensued with the father agreeing to pay for some items but not for others. The mother later reneged on this agreement, as she says that the father had not been honest about his claim that he could not afford to pay the fees. She also points out, inter alia, that there had not been any updated disclosure, she had not been legally advised and that she had felt coerced into making the said agreement. (i.e. the “side agreement”)

5.  T went to boarding school in Australia in October 2014. He is said to be a good student and wishes at present to study medicine. T will be 18 years old on the XX September 2017 and he will complete school at the end of this academic year in Australia. University is likely to start in February/March 2018. Consequently, there is also an issue concerning the funding of T’s tertiary education and how that should be structured. The father wishes to fund T directly whereas the mother asks that the father continue to make a financial contribution to her for T.

6.  C is 14 years old. After T left Hong Kong, C remained and continued initially to split his time between two households. The mother for her part spent a lot of time in both Hong Kong and Australia as she tried to support both children. She also remarried on the XX April 2015. Her husband is originally from New Zealand but the parties reside in Australia. It is the mother’s case that C became very unhappy with this arrangement and that he also expressed a wish to go to boarding school in Australia. This was resisted by the father. There were also other issues and the relationship between father and son became strained. It is the mother’s case that C does not like the father’s new partner. She also alleged during the trial that this application was ill meant and that there is a plan by the father and his partner to, in her words, “break her”.  In any event since August 2015 C has been resistant to staying at the father’s home and access has generally only taken place when T was also present. Consequently, C began to spend the majority of his time with the mother.

7.   On the 29 February 2016 the matter returned to court again for a Children’s Dispute Resolution hearing. The mother sought leave for C to join his brother at boarding school in Australia. Agreement was eventually reached and the father consented to both children being removed from Hong Kong on a temporary basis in order to go to Australia for study purposes. Agreement was also reached with respect to the school holidays with the father having the care of the children for the school holidays in April and October and the mother for June/July. It was further agreed that the long school holiday over the Christmas/New Year period would be split between the parties. Notwithstanding that it seems that C still refused to come to Hong Kong in 2016 for the father’s share of the long summer break (i.e. Christmas/New Year). At the time of the hearing the father relied on a report prepared by the psychologist Dr B dated the 18 February 2016. In that report Dr B recommended inter alia that:

43.   Given that the issue of C attending boarding school is – as noted by the Social Welfare Officer – a matter of ‘when’ and not ‘if’, it may be most practical to permit him to attend boarding school immediately.  There are a number of reasons for this:

43a.   Boarding school may effectively remove C from a high conflict environment and remove the burden of being the subject of that conflict from his shoulders;

43b.   C will benefit from the structured consistency of boarding school rather than moving between two households that have very different parenting styles;

43c.   The relationship between C and his father is extremely important for both of them, and both individuals are experiencing a great deal of pain due to the current situation.  Enrolling in boarding school may provide enough of an emotional distance to allow both parties to begin the healing process, and render C more receptive to resuming communication with Mr. P;

43d.   C is close to T and the siblings will have the chance to be together if C is in boarding school.  This is particularly relevant for C as he is somewhat isolated in Hong Kong and has limited emotional support at the moment;

44.   Mr. P raised a number of anxieties regarding his relationship with C should he relocate.  It is important that every effort be made to ensure an agreement or outcome that can effectively alleviate his concerns and provide safeguards to ensure that he is, indeed, given full opportunity to heal his relationship with C.  Some of these safeguards include:

44a.   C should be required to attend boarding school (as opposed to day school).  He needs a structured and neutral environment with routine and boundaries. Residing with his mother as a day student will result in further enmeshment and difficulties for Ms. G to enforce the necessary boundaries C will require as a teenager, and may serve to further strain the relationship between Mr. P and the children.

44b.   C should be scheduled to return to Hong Kong for the next three lengthy holidays (more than 7 – 10 days) to stay with Mr. P and allow their relationship to heal.  This should not be presented to C as an option as he may feel some loyalty conflict in being responsible for making the choice himself.

44c.   It is recommended that future travel dates to Hong Kong for C to see Mr. P be arranged as far in advance as possible and incorporated into a Court Order.

44d.   If the Court Orders that C remain in Hong Kong – either until June or longer – it is important that it be explained to C in a way that does not place blame on Mr. P.

44e.   Regardless of whether C is in Hong Kong or Australia, right of first refusal for his care when Ms. G is traveling should be Mr. P’s.  If this is impractical due to travel constraints, then both parents can then decide who will care for him during the time Ms. G will be away.

44f.   C should remain in therapy with Ms. L for as long as he is in Hong Kong.  There may be scope for some family sessions to take place once an agreement has been reached as C will likely be more receptive to input at that point.

44g.   It is also recommended that Mr. P work with Ms. L to develop strategies for regaining trust and how to most effectively listen to and communicate with C.

44h.   Ms. L can also work with Ms. G for as long as C remains in Hong Kong to help develop better strategies for setting and enforcing limits with him.

44i.   It may be helpful for C to receive an explanation of the sequence of events leading to the current situation from a neutral third party (possibly Ms. L or the undersigned, etc.) so that his blame of Mr. P can begin to be addressed.

44j.   To promote feelings of security for both parents, it may be worth considering obtaining a mirror order in Australia.

8.   Unfortunately, the relationship between C and his father has not improved. It is also not clear if the recommendations made by Dr B were acted upon. It is the mother’s case that C is unhappy boarding and that he would like to be a day pupil. Given the recommendations made by Dr B this is vigorously resisted by the father. In any event, as I pointed out to the parties during the hearing, there is currently no application before me in that respect. I accept that if the mother were to make such an application, that there would need to be updated reports. For the purposes of this application I accept that the mother is living near to the school with her new husband and that C comes to her home most weekends from Friday evening until Monday morning. In addition, he sometimes comes out mid-week. It seems that C is a very bright but sensitive child and that there have been issues inter alia with bullying. T also comes back to the mother’s home most weekends and in addition he will sometime choose to base himself at the mother’s home during study leave. This can sometimes be for up to blocks of two weeks at a time. The father for his part has only been able to go down to Australia three times since T started school. Consequently, he is not as involved in the day to day parenting of the boys as the mother is. The father says that this is because his work commitments have precluded him from making frequent trips down. He hopes that this will not be the situation going forward and that he will be able to go down to Australia more frequently to see the boys. He has allowed for five trips per annum in his financial statement.

The litigation

9.   The original consent order on finances dated the 26 February 2010 stated inter alia as follows:

Recital K

K.   AND UPON the Petitioner agreeing and undertaking to the Respondent and to the Court that he will make or cause to be made the following payments as they arise:

(i)   The children’s school fees, tertiary education fees, school uniforms, additional educational extra-curricular expenses and any other major expenses for the children directly to the relevant educational establishment or institution until the children cease full time tertiary education.

(ii)   Reimbursement to the Respondent, upon production of receipts, for all medical and dental expenses for the children and all reasonable clothes and shoes purchased by the Respondent for the children.

Order 2

2.   The Petitioner do pay to the Respondent on the 1^st day of every month commencing on 1^st February 2010 periodical payments for the maintenance of each of child of the family namely T, boy born on XX September 1999 and C, a boy born on XX January 2003 and each month thereafter the sum of HKD$10,500 making a total of HK$21,000.00 until each of the children respectively attain the age of 18 years or finish their full time education whichever is the later.

Order 3.

3.   The Petitioner do pay to the Respondent on the 1^st day of every month commencing on 1^st February 2010 and each month thereafter periodical payments for her maintenance in the sum of HKD$14,000 per month until the Respondent remarries, cohabits with another man for a continuous period of 6 months or until further order, whichever is the earlier.

10.   It is of note that there has been no variation to this order, notwithstanding the fact that it was made over 7 years ago. The mother’s maintenance for herself came to an end upon her remarriage. Currently then the father is bound by order 2 and Recital K.

Issues to be determined

Should the “side agreement” of August 2014 be upheld?

If not what weight should be attached to it, if anything at all?

What financial ramifications arise out of that determination?

How should Recital K be interpreted?

In terms of the historical items claimed by the mother under recital K, what should be allowed and what should be disallowed?

Should Recital K be discharged, amended or upheld?

In the event that it is discharged in part, how will that impact on the financial arrangements for the boys going forward?

Is it accepted in principle that the father should no longer be obliged to contribute towards the children’s maintenance because he pays more for the boarding school fees?

Should the maintenance order of HK$10,500 per month be upheld, reduced or discharged?

Should this arrangement change once T starts university?

How much maintenance should the father pay to the mother as maintenance for the two children of the family and over what period of time?

How should the Singapore property be regarded?

The law

Variation of maintenance   

11.   The father’s application 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 ……”

12.   As I explained to the parties during the hearing 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 bound by the existence of the previous consent order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Jackson’s Matrimonial Finance and Taxation, 8^th edition Chapter 3.147 - 3.157):

The modern approach is that the Court has to consider all the circumstances of the case, and the Court is not hide-bound by the existence of a previous Order; the Court must look at the case de novo and make an Order that is reasonable in the current circumstances.  The usual basis on which a variation of an Order for periodical payments is founded is that there has been a material change in the circumstances of one or both the parties.  On application for revision, the Court, as it was put in one case, has ‘regard to all the circumstances of the case’ in the same manner as if those circumstances had existed at the date of the original Order.

13.   It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. In this case the father says that the trigger is the children going to boarding school in Australia. He does not dispute that he can afford to pay and indeed says that this is not the reason for the application.

14.   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).

The enforceability of agreements

15.   There is also another issue here concerning the enforceability of the so called side agreement. The issue of the weight to be attached to agreements reached between parties has been looked at recently in the context of ancillary relief as whole, with an emphasis on pre-nuptial and post nuptial settlements. However, in this instance we are concerned with an agreement allegedly reached between the parties after the issue of final ancillary relief had been resolved. Arguably, what is said about the enforceability of agreements in that scenario will also have some bearing on the situation here.

16.   In determining whether there is a valid agreement and the weight to be attached to it, paragraphs 34 and 35 of SPH v SA are relevant and bear some repetition. These also cite with approval paragraphs 68 – 73 of England’s landmark decision Radmacher v Granatino:    

34.   The particular matters which were stressed by the Supreme Court were these.  The court when considering the grant of ancillary relief was not obliged to give effect to nuptial agreements―whether they were ante-nuptial or post-nuptial. The parties could not, by agreement, oust the jurisdiction of the court.  The court must, however, give appropriate weight to such an agreement.  But it was the court, and not any prior agreement between the parties, that would determine the appropriate ancillary relief when a marriage came to an end, for that principle was embodied in the legislation. [2], [7].

35.   The Supreme Court said:

“68 If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, both the husband and wife must enter into it of their own free will, without undue influence or pressure, and informed of its implications. …

69 … the Court of Appeal was correct in principle to ask whether there was any material lack of disclosure, information or advice. Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.

…

71 … The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.

72 The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way.

73   If the terms of the agreement are unfair from the start, this will reduce its weight, although this question will be subsumed in practice in the question of whether the agreement operates unfairly having regard to the circumstances prevailing at the time of the breakdown of the marriage.”

17.   The Court of Final Appeal added at paragraphs 39 and 40:

The application of Radmacher v Granatino in Hong Kong

39.   There have been signs of approval of Radmacher v Granatino in this court in LKW v DD [2010] HKEC 1727, (2010) 13 HKCFAR 537 (per Ribero PJ at [53], [105], obiter since the appeal did not concern an ante-nuptial agreement).  In the view of this court, the principles enunciated in Radmacher v Granatino should also be regarded as the law in Hong Kong.  In common with the UK Supreme Court, we see no reason for distinguishing between ante-nuptial agreements and separation agreements.

40.   As we have said, the Hong Kong Court of Appeal has already accepted in L v C [2007] 3 HKLRD 819 that the old rule that agreements providing for future separation are contrary to public policy is obsolete, and we endorse its judgment.  We agree with the UK Supreme Court that this should not be restricted to separation agreements.  None of the supposed distinctions between them can any longer be supported, although we accept that there may be circumstances where it is appropriate to distinguish between an ante-nuptial and a separation agreement.  As the UK Supreme Court said (at [61]) the circumstances surrounding the agreement may be very different dependent on the stage of the couple’s life together at which it is concluded, but it is not right to proceed on the premise that there will always be a significant difference between an ante-nuptial agreement and a separation agreement.

Discussion

Should the “side agreement” of August 2014 be upheld?

If not what weight should be attached to it, if anything at all?

What financial ramifications arise out of that determination?

18.   The father argues that the “side agreement” should be upheld. He says that this was an agreement entered into by two consenting adults who, had by that stage, had a lot of experience in litigation, notwithstanding the fact that they were not legally represented at the time. In any event he says that it was acted upon by both sides and he refers to a number of e-mails after August 2014 where reference is made to it.

19.   The mother for her part says this of the side agreement in her 7th affirmation dated the 2 August 2016:

19.   In August 2014, my naïve and coerced “agreement” to pay HK$10 500 per month back to the Petitioner for T’s schooling was made under duress, and my longing to bring some peace to T who desperately wanted to go to Australia, as he had already gone through much emotional and psychological abuse to gain his father’s consent to start attending boarding school.  After the Petitioner told T he could go to A (A), it became clear that he would change his mind if I did not “agree” to pay back HK$10 500, so at the time I had no choice but to put the emotional and psychological needs of T first (Please refer to Respondent’s 6^th Affirmation, Paragraph 26 for more details).

20.   At this time in August 2014, the Petitioner never disclosed evidence of his financial status, but merely stated “he could not afford” to let T go if I did not help.  This evidently is not true since all fees have been paid up to date and no information to the contrary has ever been disclosed (EXHIBIT 7-6 for email revealing my naïve and pressured efforts to prioritise the needs of T and the details of our “agreement”.)

21.   The Petitioner frequently makes threats (including of police), changes his mind and reneges on promises to the boys, which leaves me under pressure to compensate and protect the children’s well being, which explains why I was coerced to “agree” to pay the above mentioned amount even though I did not have time to consider the ramifications on my own financial commitments to the boys as there was significant time pressure to get T enrolled at the time.  For these reasons and those mentioned below, I am not paying the Petitioner HK$10500 per month.  (Refer to Respondents 6^th Affirmation, Paragraph 26 and 76 (vii) for more details).

She reiterated this in her oral evidence in the third day of trial as follows:

A.   And I acknowledge that under duress and misleading information where you told me that you do not have enough money and that you told me that T could not go to A unless I made that contribution, I did agree but it was under misleading, misguided information and under me as a mum trying to give my son the best chance at something that he really wanted to do.  So I’m not disputing that in that time I agreed to pay you the 10,500 but it was not a fair and open and fully disclosed arrangement.  You told me you couldn’t afford it and you told me that T couldn’t go and, your Honour, if you go to pleadings bundle 2…

A.   P2, page 281, paragraph 19.  He even says in his own words “I reached a written agreement because really this is his agreement that he forced on me.  It is always” …

A.   So the last three lines, you can read the whole sentence if you want but “I reiterate that I reached”, I reached, “written agreement she would reimburse me 10,500 if I provided my consent to T attending A boarding school”.  It was like if he didn’t give it to me, if I didn’t agree, then T couldn’t go.  He even writes that in his own words.

20.   For the avoidance of doubt I accept what the mother says in this respect. It also seems to me that the agreement was inherently unfair given the financial circumstances of the parties at the time. As I pointed out during the hearing it is also of note that the parties never filed a consent summons giving legal effect to the “side agreement” in any event. In such circumstances the side agreement shall not be upheld and no weight shall be attached to it. It follows that the focus must then turn in the first instance to Recital K and which expenses should be reimbursed and which expenses should not be.  

How should Recital K be interpreted?

21.   At the time of the order the father was working as a pilot in Hong Kong and the mother was a part time speech therapist. The mother was to receive maintenance of HK$21,000 per month for the boys and in addition she received HK$14,000 per month for her own maintenance i.e. HK$35,000 per month in total. Recital K was meant to cover additional and specific items. It seems to me that in accordance with normal interpretation guidelines this clause should be given its natural and normal meaning. I repeat therefore that under Recital K the father agreed to pay for the children’s school fees, their tertiary education fees, school uniform, additional educational extra-curricular expenses and any other major expenses for the children and such expenses were to be paid to the relevant educational establishment or institution direct. In addition, he agreed to pay upon the production of receipts and on a reimbursement basis only, for all of the children’s medical and dental expenses and for all reasonable clothes and shoes purchased by the mother for the children. Some of the dispute lies with the fact that the mother has paid for some out of pocket expenses herself – because she was the parent on hand and the father has consequently refused to pay for them because they were not payable directly to an institution. He has since softened his position on this and he has agreed to pay for some items that according to the mother he had simply refused to pay for previously.  

22.   The other difficulty is that the document produced with respect to the reimbursement claimed seems to have had several different versions. In any event and for the avoidance of doubt, in so far as this trial is concerned I will be making reference to the final document produced in court namely R-4 and the most updated document attached to an e-mail dated the 20 February 2017 in Correspondence 2 (page 315 onwards). It is the mother’s case that the father is only conceding certain points now, at trial, when infact he has refused to pay for some items going back to 2010. In any event she says that Recital K simply does not work, especially given the fact that the current arrangements for the boys are now significantly different from before. For example, she says that when the care of the boys was genuinely shared, the boys would each ask both parents for certain things and each parent would agree – or not, on a more or less ad hoc basis. That is not the case now and the whole burden financially for the boy’s day to day living costs rest on her shoulders save for the boarding school fees and related expenses.

Reimbursable expenses under Recital K

In terms of the historical items claimed by the mother under recital K, what should be allowed and what should be disallowed?

2010

23.   The outstanding expenses claimed by the mother and the father’s comments at trial are reproduced below:

Medical and Dental Nathelia Gomid $585.00 Clothes/Shoes School Uniform - T $790.00 School Uniform – C $50.00 Clothes – both boys $2,197.00 China Visa – T $680.00 Sub total per year $4,302.00

Not an expense per Recital K for medical for Boys Also worked for Respondent when boys with her YES 790 YES 50 YES 2197 YES 680 HKD3,717.00

I accept what is said by the mother here with respect to the HK$585 for medical and thus HK$4,302 is reimbursable to the mother.

2011

24.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
Arm Sling - T	$100.00	YES	100
Matilda Hospital - T	$4,792.00	NO	Claimed by [husband’s employer] medical and Respondent Refunded
Matilda Hospital - T	$1,500.00	NO	Claimed by [husband’s employer] medical and Respondent Refunded
Clothes/Shoes
School Uniform - T	$1,455.00	YES	1455
School Uniform – C	$595.00	YES	595
Clothes – both boys	$239.00	YES	239
Swimming costume	$350.00	YES	350
School shoes and casual shoes - C	$853.00	YES	853
Sportwear	$920.00	YES	920
New Zealand Ski Holiday – Clothing T and C
Boarding School Setup - T
Miscellaneous
China Visa – T	$310.00	YES	310
School Deposit for D to keep space for T in High School	$21,000.00	NO	Respondent paid 2 other deposits in 2007 and 2011 For P International School and C College Not as per Recital K
Sport Equipment	$244.00	YES	244
Sub total per year	$32,523.00
Balance owed per year	$23,604.50	HKD 5,066.00

25.   I accept what the father says with respect to the refunding of medical expenses to the mother and note that he has now agreed to pay for a number of clothes and shoes. The mother asks for reimbursement of HK$21,000 for a school deposit for D. During the trial it was said that this was the school that T eventually attended, although I note from the Social Welfare Report that he actually went to X School for High School. In any event this seems like a reasonable major expense for T and one that should and could have been paid to the institution direct had the father agreed. In such circumstances the sum of HK$21,000 shall be reimbursed to the mother plus the other items agreed to by the father. I accept that the others are not reimbursable expenses. Thus HK$26,066 shall be reimbursed to the mother for 2011.

2012  

26.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
IMI – Medication / Supplements	$855.00	NO	Receipt for Adult homeopathic medicine
School Books, Stationary and School related
Cafeteria Food – Chartwells School Lunch	$501.00	NO	Not as per Recital K
Clothes/Shoes
School Uniform - T	$2,110.00	YES	2110
School Uniform - C	$90.00	YES	90
School shoes and casual shoes – C	$380.00	YES	380
Sub total per year	$3,936.00		HKD 2,580.00

27.   I accept that under the terms of recital K the school lunch is not a refundable expense. However, it seems to me that arguably the homeopathic medicine should have been reimbursed to the mother. Thus HK$3,435 is reimbursable to the mother for 2012.

2013

28.   No claim is made by the mother for 2013 as she says that all receipts have been lost. Notwithstanding that I accept that she must have had expenses that year which would, in the normal course of events, have been reimbursable to her. I will allow an additional HK$5,000 in that respect, which is roughly the maximum allowed for incidental expenses in years 2010 – 2012, once the school deposit is taken out of the equation. During this period all parties were still based in Hong Kong.

2014

29.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

School Books, Stationary and School related
Stationary - Officeworks	$824.49.00	YES	824.49
Clothes/Shoes
School Uniform - C	$1,620.00	YES	1620
Clothes – both boys	$4,181.00	YES	4181
Boarding School Setup - T	$3,837.57	YES	3837.57
Miscellaneous
Sport Equipment	$1,303.23	YES	1303.23
Boarding School Setup – Toiletries and Towels	$1,024.13	YES	1024.13
			HKD 12,790.42

30.   There is no dispute and the father now agrees to reimburse the mother the HK$12,790 claimed (rounded down). T started boarding school in 2014.

2015

31.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
Orthodontist	$3,000.00	YES	3000
Dentist – T	$495.00	YES	495
Doctor Consultation	$1,075.20	YES	1075.20
School Books, Stationary and School related
Pen n Paper	$558.00	YES	558
Compulsory Camp – T	$2,693.60	YES	2693.60
Melbourne Chinese school trip	$694.00	NO	T offered to pay
Dance Lessons – T (for all Year 10’s)	$868.00	YES	868
Clothes/Shoes
Clothes – both boys	$2,770.00	YES	2770
Miscellaneous
Sport Equipment / Clothes – football boots, haviannas and spray water bott	$833.74	YES	833.74
Toiletries - T	$1,042.00	NO	Not as per Recital K
Visa – C	$450.00	NO	Not as per Recital K – No info on visa
Sub total per year	$14,479.54		HKD12,293.54

32.   There were a number of disputes this year. The first related to a Melbourne Chinese school trip. The mother wished C to go. The father disagreed and refused to pay. The mother arranged for C to go and paid the requisite fee. Again I tend to agree with the mother that this is a trip that C would have benefited from, not so much because it was a trip to China Town, but because it was an out of town trip with his peers. Again this is an expense that could and should have been paid by the father to the institution direct. I will allow it. I accept that the other items i.e. toiletries for T and a visa for C are not reimbursable expenses under Recital K. Consequently, HK$12,988 (rounded up) shall be reimbursed to the mother for 2015.

2016

33.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
Cranio sacral therapist and remedial massage – C	$1,764.00	NO		Not agreed and no discussion, not a medical doctor
Doctor – T – Skin condition and general well being	$1,960.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Doctor – C – Weight/Nutrition and general well being	$1,120.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Orthodontist – consultation for underbite T	$600.00	YES	600	However was not advised T had this appointment nor was it discussed
Blood test	$162.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Optometrist + Glasses	$4,508.00	PARTIAL	2254	Unnecessary designer frames selected nor was it discussed
Special – Dermatologist	$1,260.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Medication	$459.65	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Supplements	$2,512.89	NO		No discussion or agreement of vitamins used as per parenting agreement-paragraph A(iv) – No Doctors prescription seen
Miscellaneous	$1,830.70	NO		Nothing under miscellaneous in financial order para K(i)(ii)
School Books, Stationary and School related
Club Soccer – T	$2,100.00	NO		Not agreed as A provides excellent sport training
Strength Camp – C and T	$2,352.00	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Speed Camp – C	$907.20	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Football Camp – C	$4,900.00	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Pride Physic therapy Kettlebell Training $AUD300/10	$840.00	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Football Fitness Tests – T + C	$336.00	NO
Chinese Tutor	$8,960.00	NO
Staionary - Officeworks	$6,652.91	PARTIAL	1680	Submitted receipts include 10 X storage containers, 2 X office chairs – and is obvious most of equipment and stationary for T and P’s home office supply. I am willing to pay 300 AUD per year for school supplies- even though not as per para K(i)
Clothes/Shoes
Clothes – both boys	$11,401.60	PARITAL	5700.8	I’m prepared to pay half as don’t feel designer clothing such as versace shirts at 199 AUD are reasonable and appropriate for the boys as per para K(ii) –reasonable. I also purchase clothing for the boys
New Zealand Ski Holiday – Clothing T and C	$1,065.68	YES	1065.68
Miscellaneous
T Iphone	$6,720.00	NO		Not necessary as per para K(i) and T advised it was a gift for birthday
C Iphone	$6,720.00	NO		Not necessary as per para K(i) and was a gift for C
T laptop	$15,080.80	NO
T Learners Licence Test x 2	$257.60	YES	257.6
Learners Licence Book	$112.00	YES	112
T’s Driver’s Licencse card	$898.80	YES	898.8
Visa Medicals not claimed	$1,290.00	YES	1290
Alterations/Dry Cleaning of uniforms / Labels	$2,240.00	PARTIAL	590	Will pay for dry cleaning only as no receipts for labels or alterations
Monthly subscription per child AUD$90	$12,096.00	NO		No receipts received, if they are for mobile phones not my responsibility as per para K(i)
Pocket money	$896.00	NO		I pay boys pocket money as set out in my form E
Sub total per year	$102,479.82		$14,448.88	AMOUNT OWED TO T FOR 2016 EXPENSES- PLEASE NOTE MOST OF EXPENSES OCCURRED DURING LAST 3 MONTHS

34.   It would be fair to say that by this time, relations between the parties were at a very low ebb. I accept that discussion on any topic is likely to have been difficult. The father is willing to pay for orthodontic treatment for C but he queries other medical expenses and suggests that the mother should be reimbursed by the medical insurer in any event. It is not clear, even if her claim is successful, whether she is likely to get all of these expenses back. However, I also accept that these are genuine expenses for the boys. I accept therefore that they should be reimbursable to the mother under the second half of Recital K either in whole, or in part, once the amount allowed by the insurers is known. I will allow the cost for cranio sacral therapist and for the full cost of the optometrist and glasses. I will also allow the request for supplements. Where the parties are waiting for confirmation of payment from the insurer I will put that payment to one side. The balance should be reimbursable to the mother by the father in the normal course of events. I will not allow the miscellaneous expense.

35.   The father refused to pay for a number of expenses under the school related column including some that could properly be classed as extra-curricular activities, as he is of the view that all such activities should be covered by the school. I tend to agree with the mother on this and accept that there are likely to be some expenses which the parents will be required to cover on top of the boarding school fees, for example see the reference to the Speed and Football camp. Again these are expenses that could and perhaps should have been paid to the provider direct, had the father agreed. I will allow all of these expenses, including those for the Chinese tutor. (i.e. club soccer, strength camp, speed camp, football camp, Pride Physic training, Football fitness tests). The amount for stationery does seem to be a bit on the high side and I accept that the mother may have made a genuine mistake in this respect. The sum of HK$1,680 offered by the father is accepted. I also accept the father’s proposal to pay for half of the cost of clothing. There was also a dispute concerning the provision of IPhones and laptops, with the father insisting that these should be gifted. In today’s world these items tend to be regarded as essential, although I tend to agree with the father that if possible it might be preferable for them to be gifted. In any event I will allow them on this occasion. Going forward this issue will not arise. The pocket money that the mother provides is also not a reimbursable expense, nor are the monthly subscriptions. I will accept the partial payment for alterations dry cleaning etc. Thus HK$69,530 is reimbursable (rounded up).

36.   In total then the sum of HK$134,111 is reimbursable to the mother. It is therefore directed that this sum be paid by the father to the mother within the next 28 days.  

Should Recital K be discharged, amended or upheld?

In the event that it is discharged in part, how will that impact on the financial arrangements for the boys going forward?

37.   It is possible for the court to discharge an undertaking or to amend it with the consent of the party giving the undertaking. In this instance the mother maintains that Recital K should be discharged and that in truth it has never really worked – but in any event it works less well now than it did in 2010 when the parties entered into the original consent summons. The father for his part wants Recital K amended as set out in paragraph 1 above.

38.   The difficulty, it seems to me, is that Recital K was an entirely appropriate undertaking when the parties were living in close proximity to each other and sharing the care of the children. This undertaking ensured that the father would continue to be responsible for the children’s major expenses such as their school fees and other extra-curricular costs, over and above the cost of maintaining them on a day to day basis. The mother was responsible for maintaining the children during the time that they were with her – for approximately 50% of the time from the maintenance that she received from the father of HK$21,000 per month. In addition, she received HK$14,000 as maintenance for herself. She also received a small income from working as a part time speech therapist and from working, for a time, as an Educational Assistant. Further she received a passive income from renting out the property that she had received in Discovery Bay as part of her settlement. In total she probably had an income of approximately HK$50,000 per month at that time. In contrast the father was earning in the region of HK$200,000 per month inclusive of benefits. It was therefore entirely appropriate that the father should also be responsible for these additional expenses under Recital K. The father says, and this is accepted by the mother, that it was always understood that his contribution would not cover all of the children’s costs. It is the father’s case that the mother should have maximized her earning capacity by now in order to pay for any shortfall. Whereas the mother is of the view that it is a matter for her how she pays for any deficit. As indicated during the trial I agree with the mother on this. She says, and I accept this to be the case, that she has always put the welfare of the boys first.   

39.   It seems to me that Recital K works in so far as the school fees are concerned. It should also work going forward with respect to tertiary education fees. As I indicated to the father during the hearing I will expect him to pay for T’s university costs from the start of the next academic year, plus the cost of accommodation – whether T is living in halls or in separate accommodation plus provision for a separate living allowance. This would constitute “other major expenses”. I also have no difficulty in extending Recital K as suggested by the father, in that once T starts university any medical/dental costs should also be payable by the father direct to T on a reimbursable basis. But it seems to me that asking the child to seek reimbursement from him direct for clothes and shoes is likely to impose an unreasonable burden on both sides and could lead to further and unnecessary conflict. Provision for this should be included in his living allowance.  

40.   In so far as C is concerned and for T’s final two terms at school, the father has suggested that he provide for incidental expenses by retaining a balance in their bank accounts. He has not indicated what that balance might be – or how that might work in practice. Again it seems to me that this is likely to lead to further conflict. However, I accept that the arrangement for school uniforms and other related items is now working well in that such items can be purchased from the school shop direct and the shop has the father’s credit card details. The mother also confirmed that this was now working reasonably well. There is though continued difficulty with respect to extra-curricular activities and the reimbursement of clothes and shoes. I will therefore release the father from this part of the undertaking. Other than for school uniform I will also release the father from his undertaking to reimburse the mother on production of receipts for all reasonable clothes and shoes purchased by her for the children.  

41.   I will therefore amend Recital K so it reads as follows:

AND UPON the Petitioner agreeing and undertaking to the Respondent and the court that he will continue to make or cause to be made the following payments as and when they arise:

(i)   The children’s school fees, tertiary education fees, school uniforms and any other major expenses for the children directly to the relevant educational establishment or institution until the children cease full time tertiary education. For the avoidance of doubt it is further directed that the father pays a living allowance to each child direct during the course of their tertiary education such sum being regarded as a “major expense”.

(ii)   From the date of this Order and until each child attains the age of 18 years or ceases High School, the Petitioner shall reimburse the Respondent for all medical and dental expenses for each child within 14 days of production of receipts by the Respondent and such original receipts to be produced by the Respondent to the Petitioner within 28 days of such expense being incurred AND FURTHER the Petitioner undertakes to pay for these reasonable expenses during the children’s tertiary education with such amount to be provided directly to the children where appropriate.

42.   Going forward therefore the cost of the extra-curricular activities whilst both children are at school (which in reality will effect C more than T) and the cost of clothes and shoes, apart from school uniform will be included as part of the mother’s ongoing expenses for the boys and will therefore be included as part of her maintenance claim.  

Is it accepted in principle that the father should no longer be obliged to contribute towards the children’s maintenance because he is paying more for their school fees?

43.   This is not accepted in principle. The father does not dispute that he can afford to pay a reasonable amount for the children’s maintenance. He is currently earning over HK$300,000 per month inclusive of benefits, which is a significant increase from his original salary in 2010. His case is that as he now has to pay more for the children’s school fees (there was some dispute during the trial about the actual figure, but for arguments sake I will accept that he now has to pay HK$21,752 per month on top of his educational allowance as opposed to a top up of HK921 per month when both children were studying in Hong Kong – a difference of slightly less than HK$21,000 per month). He says that given that the children are at a full time boarding school that he should not be required to pay anything to the mother in addition. He is further of the view that any excess should be paid either from the mother’s contribution under the “side agreement” or from her own income. He also maintains that the mother’s expenses are excessive and that she has not substantiated many of them with receipts. He also argues that each parent should be responsible for the children’s general expenses whilst they are in each party’s respective care, although he acknowledged that in reality the children are not currently in his care for very much of the time.  

44.   The mother for her part now agrees to pay for 50% of the children’s actual expenses whilst they are in her care. Although not expressly stated I understand that to mean that she will cover half of the boys general living costs outside the costs of their education etc. It seems to me that this is quite generous given the disparity in the party’s actual income. This in turn undermines any argument advanced by the father with respect to her earning capacity etc. It matters not, if she is prepared to pay for 50% of their costs in any event.

45.   Further I do not accept the suggestion made by the father that given that he is paying for the boarding school fees, that each parent should simply be responsible for the boy’s expenses when they are in each sides respective care. That only works if infact the children are roughly splitting their holiday time between both parents and they are in boarding school otherwise. Rightly or wrongly that is not the reality here and the maintenance order should reflect that.  

Should the maintenance order of HK$10,500 per month be upheld, reduced or discharged?

46.   I should say at the outset that I intend to uphold the order. The mother said that she was not asking for more but that she did not expect to receive less. Although I am upholding the order, she will be expected nevertheless to pay for all clothes and shoes and for extracurricular activities from that sum.

47.   Originally the mother asked for 43% of the total claim for general expenses. This seemed incorrect mathematically and I gave an indication to that effect during the hearing. However, given the practical reality here it is quite difficult to do justice to the situation simply by relying on the math.  

48.   As a starting point I accept that the parties should each be responsible for 50% of the children’s general living costs. Given that the children are with the mother for 3 or 4 nights per week, this calculation is necessarily difficult. But as a starting point I accept that when the children are with the mother and her husband and there are four people in the house that approximately ¼ of the consumption for general household expenses shall in the first instance apply to each person more or less equally. Given that the children are not there all of the time, it then seems reasonable to suppose that of their ¼ each, say 70% of that is attributable to them whilst they are at home. (I accept that they probably eat a great deal, use a lot of electricity etc etc). 

49.   In exhibit R-4, which is based on the mother’s Form E figures, she set out her general living expenses for a nine-month period from April – December 2016 as follows:

UPDATED – CHILDREN’S MONTHLY EXPENSES FROM APRIL 2016 – DECEMBER 2016 IN AUSTRALIA
			AUD$	HK$ (5.6)
GENERAL	FIGURES BASED ON RESPONDENT’S FORM E (P3/711-713)
Mortgage – TBC so estimate	TOTAL for Household - % allocation to children to be determined		$7,641.00	$42,789.60
Food	TOTAL for Household - % allocation to children to be determined		$3,000.00	$16,800.00
Utilities	TOTAL for Household - % allocation to children to be determined		$2,500.00	$14,000.00
Household	TOTAL for Household - % allocation to children to be determined		$1,200.00	$6,720.00
Car and Fuel	TOTAL for Household - % allocation to children to be determined		$1,400.00	$7,840.00	Bought new car for T to use so additional 1200 per month
	% to be allocated to children as Court sees fit.  Based on income the respondent asks to Petitioner to contribute 70% and possibility of C becoming a day scholar if he continues to struggle being in boarding – especially once T leaves at the end of 2017.		$15,741.00	$88,149.60

50.   I accept that these figures provide a good indication of the general living expenses for the household during this period. In so far as the mortgage is concerned and as indicated during the hearing, this expense will be taken out of the equation, as it does not seem reasonable to expect the father to contribute to the acquisition of an asset by the mother and her new husband. This leaves a figure of HK$45,360 per month. The father complains bitterly about this figure. He says that there is no documentary evidence in support and that it is far in excess of the mother’s previous list of expenses whilst she was living in Hong Kong. He also points out that his own general expenses are quite low. He believes that the figure is inflated, something that is vehemently denied by the mother.

51.   It is of note that when the mother lived in Hong Kong that her expenses were of necessity quite low. She lived in small units and the overhead would not have been high. It is reasonable to suppose that those overheads will now be significantly higher given that she is living in a house. Children also generally get more expensive as they get older. Thus food and other household expenses would normally be expected to increase. Further the mother has included the provision of a car for T in her list of general expenses. In such circumstances I will accept the estimates provided by the mother.

52.   Thus the HK$43,360 shall be divided by 4 = HK$11,340 per month each. Given that the boys are not there all of the time and as suggested by the mother, I will attribute 70% of that figure as their expenses or HK$8,000 per month each. (i.e. 70% x 11,340 = 7,938 rounded up to HK$8,000). Of that sum each parent shall notionally be responsible for 50% of the cost or HK$4,000 per month per child.

53.   In addition, the parents shall each be notionally responsible for 50% of the children’s actual costs, other than for those costs under the amended Recital K. This is a more difficult calculation, especially given the fact that there is some overlap between the figures provided by the mother in the schedule and the figures that she sought to reclaim by way of reimbursement in paragraph 33 – 35 above. I accept though that the figure amounts to approximately HK$6,500 per month each. In the mother’s schedule she said that the expenses for the boys including medical and dental and the IPhones and Laptop, (which are not recurrent expenses) amounted to just over HK$24,000 per month or HK$12,000 per month per child. I accept however that there will be other adhoc expenses not allowed for in the schedule going forward. Thus an allowance of HK$6,500 per month per child seems reasonable in the circumstances. As such the maintenance order for the boys of HK$10,500 per month each shall not be discharged (HK$4,000 per month as a contribution towards the general expenses and HK$6,500 per month for their actual expenses).

Should this arrangement change once T starts university?

54.   In the normal course of events, and if T is at university away from home, then one would expect the father not to pay the HK$10,500 per month to the mother direct once he starts his tertiary education, but for this sum to be utilized as a contribution towards T’s costs. Given that this is an unknown at present I will direct that in the event that T goes away for university, then the father’s contribution of HK$10,500 per month shall cease from that time onwards. Further it is directed that a living allowance shall be paid directly to T until such time as he ceases his full time tertiary education.

55.   The father indicated during the hearing that he would expect T to work in some capacity whilst he was studying at university. The mother for her part pointed out that the course that he was likely to study would most probably be very demanding, in which case it may not be possible for him to work as well. As an indication it seems to me that it is more likely that T will be able to work, either in a paid or unpaid capacity during the university vacations. To what extent he is able to work in a paid capacity might be dictated to by his study visa in any event. It is also very common for students to take unpaid or lowly paid internships during the holidays in order to gain some much needed work experience. Consequently, it is likely that T will need to rely on his parents for significant financial support going forward.  

How should the Singapore property be regarded?

56.   There is a difference of opinion with respect to a Singaporean property retained by the father as part of the financial settlement. Recital F states as follows:

F.   AND UPON the Petitioner and the Respondent acknowledging, agreeing and undertaking that in relation to the property situated at and known as No. 8 Y Street #XX-XX, Singapore, ABCDE, that :

(v)   The Petitioner is to be solely entitled to the rental income as against the Respondent and the Petitioner undertakes to apply this to the reduction of the mortgage secured over the Singapore property or re-invest it for the purpose of the children’s future education in consultation and agreement with the Respondent.

…

(vi)   The Respondent acknowledges that the Petitioner wishes to retain his interest in the property as a capital investment for the children’s future education expenses as he is to be solely responsible for these expenses as against the Respondent as set out in Recital K(i) herein and the Petitioner undertakes that in the event he intends to sell his interest in the property that he will do the following :

(a)   provide 14 days written notice to the Respondent prior to selling his interest;

(b)   re-invest the whole of the net proceeds for the ongoing purpose of meeting the children’s future tertiary education expenses and consult and agree with the Respondent as to the next investment;

(c)   in the event the Petitioner intends to remarry he will discuss and agree with the Respondent prior to remarriage as to the way in which these funds are held so as to preserve the monies for the stated purpose.

57.   The father said during the trial that his interpretation of this was that in the event that he was unable to meet his obligations to the boys under Recital K for their tertiary education that the Singaporean property could be relied upon. The mother for her part was of the view that these were funds that can and should be made available in any event to meet the children’s tertiary education needs going forward. It is of note that if T decides to pursue a career in medicine that he will need to do two degrees. This is not a matter that was before the court for adjudication at this time, but again as an indication the court will expect the father to fully support both children during their tertiary education and if need be to rely on the net equity in the Singaporean property in order to ensure that that is done appropriately. I accept that given the circumstances this may mean that T is supported during two degrees.   

Costs

58.   Both parties are representing themselves, although I understand that they may also have had the benefit of legal advice from time to time. In this case the mother has been more successful than the father, in that I have not accepted the father’s request that his undertaking be extended to cover sundry expenses, I have not accepted his argument on the “side agreement” and the maintenance order for the boys has not been discharged. I did though accept some of his arguments with respect to the second part of Recital K and the funding of the boy’s tertiary education costs. In such circumstances the father shall pay 75% of the mother’s costs on a party and party basis to be taxed if not agreed.

Conclusion

59.   Consequently an order shall be made as follows:  

1.    Recital K shall be amended as follows:
AND UPON the Petitioner agreeing and undertaking to the Respondent and the court that he will continue to make or cause to be made the following payments as and when they arise:

(i)   The children’s school fees, tertiary education fees, school uniforms and any other major expenses for the children directly to the relevant educational establishment or institution until the children cease full time tertiary education. For the avoidance of doubt it is further directed that the father pay a living allowance to each child direct during the course of their tertiary education such sum being regarded as a “major expense”.

(ii)   From the date of this Order and until each child attains the age of 18 years or ceases High School, the Petitioner shall reimburse the Respondent for all medical and dental expenses for each child within 14 days of production of receipts by the Respondent and such original receipts to be produced by the Respondent to the Petitioner within 28 days of such expense being incurred AND FURTHER the Petitioner undertakes to pay for these reasonable expenses during the children’s tertiary education with such amount to be provided directly to the children where appropriate.

2.   The father shall pay the mother the sum of HK$134,111 within the next 28 days.

3.   The father do pay 75% of the mother’s costs on a party and party basis to be taxed if not agreed.

FCMC 2128 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2128 OF 2009

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BETWEEN

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J U D G M E N T
( Relocation )

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Introduction

1.  This is an application by a Respondent Mother for leave to permanently remove the two children of the family out of the jurisdiction of Hong Kong in order to relocate with them to South Africa. The children, T and C, are aged 12 and 9 years old respectively.  The Father opposes the Mother’s application.  He wishes the children, who are both boys, to remain in Hong Kong and for their care to be shared between the parties on a more or less equal basis as they do at present. The father has also issued a summons to reduce his maintenance obligations in the event that the mother’s application is successful.

2.  This case once again brings into sharp focus the difficulties faced by international parents living overseas where one of them wishes to relocate. The mother has presented her case as a classic relocation application. She says that she wishes to return to the home of her birth after 15 years away, where she has family, friends and emotional support following the breakdown of her marriage. In other words she wishes to return “home”. However the facts of this case are a little different from the norm. In this instance there was clearly an intention that the boys would split their time between their mother’s and father’s homes on a more or less equal basis. Much of the evidence and the time taken up in trial were therefore concerned with such issues as what is meant by the term “primary carer” and what is meant by “shared care”. The case was further complicated by the fact that during the adjournment the Court of Appeal in England considered these very issues in the landmark decision MK v CK [2011] EWCA Civ 793 which was handed down on the 7 July 2011. I also intend to consider the ramifications of this case here.

What are the main issues to be considered?

a)   Could either parent be described as the primary carer of the children in the classic sense of that term?

b)   Should permission be given for the children to leave Hong Kong in order to relocate to South Africa with their Mother?

c)   How should the children’s time be allocated between their parents once the relocation issue has been determined?

Background to the marriage

3.  The parties are both originally from Africa. The respondent mother was born in Johannesburg. Her family are all based in South Africa. She also has close friends there. She holds a South African passport.

4.  The Petitioner father was born in Ndola, Zambia. Like many of his generation, he and his family eventually left Zambia and relocated to South Africa. They also spent time in the United Kingdom. The paternal Grandmother still resides in South Africa, close to where the mother now hopes to relocate. The father’s brothers however have moved on and one now lives in Chicago, USA and the other in Dublin, Ireland. The father gave evidence that he and his brother’s were hoping that the paternal Grandmother would also leave South Africa in due course, given her advancing age. They hope that she will move to Ireland to be close to the brother who lives there. The father holds both a South African and a British passport. He has no other family in South Africa. Both parties are permanent Hong Kong ID holders.

5.  The parties met in 1995 and began cohabiting shortly thereafter. The father is a pilot and later that year he accepted a position to work with A in Hong Kong. In February 1996, after a period of training he relocated to Hong Kong and began working for the airline. The father is now 42 years of age.  He is a Captain with A. The mother is a speech therapist and audiologist by training and background. She also holds a Masters degree from the University of Pretoria in Alternative and Augmentative Communication. The mother is now 40 years old. In April 1996 the mother joined the father in Hong Kong and in January 1997 the parties married in South Africa. They returned to Hong Kong shortly thereafter and have been based in Hong Kong ever since i.e. for the last 15 years.

6.  The eldest child T, a boy, was born in September 1999 and is, as I have said, 12 years of age. C, a second boy followed. He was born in January 2003. He has just turned 9 years of age. They were both born in South Africa.

7.  Both during the marriage and since it seems that the mother has pursued a number of interests for personal growth reasons. These have been identified as “the Journey”, “Biodanza” and “Awakening the Dreamer”. The mother is now a practitioner with “the Journey” and she produced a leaflet during the hearing which described it as follows:

About The Journey

The Journey is cutting-edge transformation and healing work pioneered by internationally acclaimed, best-selling author, speaker and mind-body-healing expert Brandon Bays.  It is recognised worldwide as a uniquely potent tool for awakening and liberating the infinite human potential.  The work has helped thousands of people worldwide free themselves from issues like fear, anxiety, stress, depression, low self-esteem, chronic anger and rage, physical illnesses and disease, and those relating to addictions and unhealthy behaviours, sexual abuse, relationship problems and career performance.

8.  The mother herself is referred to in the leaflet as (See R-1)

T-K [the respondent] has played an active part in spreading journeywork throughout Asia for the last 5 years.  Her warm and compassionate nature has held the embrace for hundreds of children and adults alike to experience the transformational tools of The Journey.  She presents with a depth of clarity, love and down-to-earth wisdom.

9.  In order to qualify as a Journey Practitioner the mother attended a number of retreat style courses, which were all conducted outside of Hong Kong. Likewise with Biodanza. The mother has not completed the Biodanza course and hopes to do so once she has relocated to South Africa. The mother has described all of these courses as lifestyle commitments which she intends to pursue going forward. She says that she has developed emotionally, psychologically and spiritually as a result. She is passionate about the

... Awakening the Dreamer Changing the Dream initiative which is ‘to bring forth a socially just, environmentally friendly and spiritually fulfilled human presence on the planet’

10.  She says that she is responsible for introducing this to South Africa and for training 30 facilitators in the field. This is a voluntary project.

11.  The mother presently also works part time as a speech therapist and as an educational assistant at the boy’s school in Discovery Bay.

12.  The father also has a number of interests. In particular he trains for and takes part in “iron man” and triathlon competitions. He also runs two sports shops in Hong Kong, which seem to be an extension of his interest in fitness and healthy living. On occasion he travels outside of Hong Kong in order to take part in competitions.

13.  Unfortunately unhappy differences arose between the couple and according to the mother they separated in September 2007 but continued to live under the same roof. In February 2008 the mother moved out of the former matrimonial home. The boys remained there initially and the parties sorted out a rota for caring for them. In the initial separation agreement, the parties agreed joint custody and joint parental control. It was anticipated that the boys would spend one week (7 days) with each parent on a rolling basis. Later it seems that this evolved into an agreement that the mother would care for the boys when the father was flying for work and not in Hong Kong. Even now the underlying principle is that the boys will be based with their father when he is not flying and he is based in Hong Kong. Otherwise they are based with the mother. On the 26 February 2009 the father issued a petition based on one year separation with consent. The parties entered into mediation and eventually entered into comprehensive agreements with respect to all matters. On the 26 May 2009 the court made an order by consent with respect to the boys. This included an order for joint custody. In addition it was agreed by the parties as follows:

They [the parties] will consult on matters concerning the long term care, welfare and development of the children and specifically including but not limited to the following:

(i) In the event that one or both of the children fall ill whilst in one of the parent’s care then any decision in relation to treatment, medication and whether or not the child needs to stay home from school shall be made by the parent caring for the child or children at that time and such parent shall make all reasonable attempts to inform the other parent as soon as possible thereafter.

(ii) That the parties are to take the children to the same doctor from time to time as required and the Respondent is responsible for selecting the Dr and advising the Petitioner of the details of that doctor.

(iii) The parties will treat the children with homeopathic medications as required but if other medication is needed then each party can decide to use such medication preferably with the assistance of medical and/or pharmacist’s advice.

(iv) The parties are to consult and agree on which vitamins they are to give the children including which brand of vitamins.

(v) The parties will consult with each other as to the children’s psychological issues, if any, and will do all things to ensure that the children have appropriate recourse to a professional if needed.

(vi) The parties are to consult with each other as to which vaccinations if any that the children need from time to time.

(vii) The parties are to consult as to the children’s diet and are to do all things to ensure that it remains consistent in each home.

(viii) The parties shall consult with each other and agree on which school the children are to attend from time to time and both parties are to participate in enrolling the children in secondary school or any other school they may attend from time to time.

(ix) The parties are to both receive any school notices and newsletters as issued by the school and each party is to facilitate that arrangement with the school including providing the appropriate and irrevocable notice to the school.

(x) The parties are to consult with each other to ensure that they both attend parent and teacher meetings at the children’s school together where possible.

(xi) The parties are to consult with each other and agree about the children taking any time out of school.

(xii) The parties are to consult with each other and agree upon the extracurricular and sporting activities the children are to participate in.

(xiii) The parties agree to encourage and facilitate the children participating in approximately two or three extracurricular and sporting activities at a time and those activities are to be in accordance with the children’s wishes and the parties acknowledge that any more than this might be excessive and the parties will do all things to ensure the children are not overloaded in this regard.

(xiv) The parties will facilitate the children’s activities when they are in their respective care including take the children to various sports training and sporting matches.

(xv) The parties will inform each other on the various play arrangements each of them makes for the children and it is agreed that each party can make various play dates when the children are in their care.

(xvi) The parties will consult with each other as to the holidays they intend to take the children on and the Petitioner will let the Respondent know as soon as possible when he applies for leave.

14.  From this it is clear that the intention was that both parents would continue to be actively involved in every facet of the boy’s lives.

15.  Further it was agreed that as far as possible the boys were to split their time between both homes and that in order to do this that

(i) Immediately following receipt of the Petitioner’s Pilot roster, the Petitioner will forward a copy of it to the Respondent so she can allocate the days for the children to live with each of the parties with the Petitioner’s days to be no less than 15 days each month save for February when the Petitioner is to have no less than 14 days each month and the Petitioner’s time to be allocated in accordance with the nights when he is in Hong Kong except for the reserve days, as allocated on his Pilot’s roster.

(ii) The Respondent is to use her best endeavours to ensure the Petitioner has as much block time with the children each month taking into account her own commitments each month.

(iii) Each party will inform the children of the monthly arrangements as soon as the parties settle same.

(iv) In the event that the Respondent does not allocate the roster days as set out in Recital B(i) at least 1 week before the 1^st day of each month then the Petitioner is to allocate the days and he will use his best endeavours to give consideration to the Respondent’s commitments that month.

16.  It was ordered that the father was to have defined access of no less than 15 days per month save for February when he was to have 14 days. There were also further agreements with respect to holidays and other important dates such as Christmas.

17.  On this premise the mother was granted care and control and the father defined access. The mother also agreed and undertook as follows:

AND UPON the Respondent agreeing and undertaking to the Petitioner and to the Court to remain living in Hong Kong until T completes his primary schooling and the Respondent acknowledges that there is no agreement at present with the Petitioner to relocate the children’s habitual residence thereafter.

18.  The mother says that this agreement was a significant compromise on her part. She says that it was understood that she wanted to return to South Africa and that she had agreed to remain in Hong Kong until T had completed primary school somewhat reluctantly but did so in order that everyone had sufficient time to “heal”. She says that there was an agreement or at least an understanding that she would be returning to South Africa in due course. The father denies this.

19.  The father also says that he had been reluctant to concede sole care and control as

I did not want to forgo the ability to parent the children on a day to day basis as I have been doing this since the children’s birth and I was opposed to relinquishing this upon divorce.

20.  However the father acknowledged that notwithstanding this that he considered that this was an acceptable agreement.

21.  In addition the parties entered into a consent summons with respect to their finances which was made an order of the court on the 26 February 2010. The decree absolute was pronounced on the 12 March 2010.

22.  On the 10 November 2010 the mother issued a summons seeking to permanently remove the boys from Hong Kong in order to relocate back to South Africa with them. T completed his primary school education in the summer of 2010.   

The Law

23.  Both parties initially referred me to the same principles on relocation namely the line of authorities which began with the English case Poel v Poel [1970] 1 WLR and continued with Payne v Payne [2001] EWCA Civ 166. It is true to say that this line of authority has been consistently upheld in the Hong Kong courts, most recently by the Court of Appeal in SMM v TWM (Child Relocation) [2010] HKLRD 37. Both parties have referred to all three cases in their submissions. It is useful to note the comments made by Cheung JA at paragraph 25 - 28 of the judgment, SMM v TWM (Child Relocation) [2010] HKLRD 37, where he states as follows:

Post-1997 use of precedents

25. After 1997, the English authorities are no longer binding in Hong Kong but they remain persuasive authorities.  It has been said that it is of the greatest importance that the courts in Hong Kong should continue to derive assistance from overseas jurisprudence: per Li CJ in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117.

26. The Children Act 1989 abolished “custody” and “access” orders and replaced them with “residence” and “contact” orders.  The Act stated that notwithstanding separation or divorce each parent continues to have parental responsibility even if a residence order has been made in favour of one of them.

27. Hong Kong has continued to use the terms of “custody” and “access” under s.10 of the Guardianship of Minors Ordinance (Cap.13) (GMO) and the term “custody” in s.19 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO).  It is clear, however, that the family courts in Hong Kong have in line with the modern approach granted joint custodial orders which emphasised the continuation of parental responsibilities and judges in Hong Kong have also adopted the welfare checklist in s.1(3) of the Children’s Act: see, for example, Judge Bruno Chan in P v P (Children: Custody) [2006] 2 HKFLR 305.

28. In my view since our matrimonial jurisdiction has followed that of England because of the historical connection, Hong Kong can and should draw from the wealth of experience of the English family courts to nurture and supplement the development of our own family jurisdiction on matters concerning principles which are not dependent exclusively on legislation.  The Payne v Payne principles should be applied and adopted in Hong Kong as well.      

24.  The issue of relocation continues to engender fierce debate. I referred to this recently in a case concerning the relocation of a mother and her children to Beijing. (Please see YY v CHOA (Removal), FCMC 7598 of 2010 unreported).

25.  Ms Rattigan, for the father, has also made mention of the rising tide of criticism levelled against Payne in her skeleton argument and in particular to what is perceived as an unwarranted emphasis on the impact of an order refusing relocation on the parent wishing to relocate. In other words, in the circumstances of this case, an emphasis on the effect that a refusal will have on the mother, without any consideration of the effect that it would also have on the father and his relationship with the boys. Referring to an article entitled Mounting Support for a Review of Poel and Payne, 25 June 2010 which quoted from Wall LJ in Re D (BD and AID, [2010] EWCA Civ 50 she says:

“There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent”

26.  Reference is also made to the continuing research undertaken in this area.

27.  It is against this background that the Court of Appeal in England handed down its decision in MK v CK [2011] EWCA Civ 793 in July 2011.

28.  In this case it was found that the parties had a genuine shared care arrangement, in that the father cared for the children without assistance for five nights out of every fourteen and the mother for the remaining 9 nights. The mother had the assistance of a Nanny. Both parents worked, but it was found that they both worked less than full time in order to accommodate the children, who were quite young (5 and 2 years old at the time of the judgement). The mother was initially given leave to relocate home to Canada, which was subsequently overturned on appeal.

29.  In his judgment Thorpe LJ highlights the fact that the judgement in Payne

... is posited on the premise that the applicant is the primary carer.

30.  He goes on to state at paragraph 46  

46. Thus the survival of the authority of Poel into this century, in my judgment depends crucially upon the primacy of the applicant’s care.  As Ms Eaton put it, if she is supplying so much she must be supported in her task precisely because the children are so dependent on her stability and wellbeing.  Once the care is shared there is not the same dependency and the role of each parent may be equally important.  The judgments in Poel consider only the position of the primary carer and an earlier position where there is a pending contest as to who should be the primary carer.  Payne does not anywhere consider what should be the court’s approach to an application where there is no primary carer.

…

And further at paragraph 56 – 59

56. Finally I must deal with the authority which I consider the judge should have applied namely Re Y.  Having cited Payne and the President’s guidance at paragraph 85, Hedley J continued:

“[14] Now, the court clearly contemplates two different states of affairs. The one, the more and common and in some ways the more obvious, is where the child is clearly living with one parent, and it is that parent that wishes to leave the jurisdiction, for whatever reason. The other, and much less common state of affairs, is where that does not exist and either there is a real issue about where the child should live, or there is in place an arrangement which demonstrates that the child’s home is equally with both parents. In those circumstances, which are the ones that apply in this case, many of the factors to which the court drew attention in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052 whilst relevant may carry less weight than otherwise they commonly do.

[15] The father does not have an application for a residence order in this case, but it was raised only in response to the mother’s application for permission to remove, and the father’s actual proposal is for a continuation of the present position.

[16] This case accordingly falls outside the main run of cases that one encounters where this problem is raised, and certainly within my own experience is unique.  What it seems to me I must do is to remind myself of the opening provisions of the Children Act 1989.  Section 1(1) says that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration, and in considering these issues I have to take a number of matters into account as required by s 1(3).  It seems to me that of those matters, the ones that are important in this case are the educational and emotional needs of Y, the likely effect on him of any change in his circumstances, and his age and background so far as his life is presently concerned.  It seems to me that I need to remind myself that the welfare of this child is the lodestar by which the court at the end of the day is guided.”

57. I fully concur with the reasoning and conclusion of Hedley J.  What is significant is not the label “shared residence” because we see cases in which for a particular reason the label is attached to what is no more than a conventional contact order.  What is significant is the practical arrangements for sharing the burden of care between two equally committed carers.  Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v. Payne should not be utilised.  The judge should rather exercise his discretion to grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989.

31.  Lady Justice Black took a slightly different approach in her analysis. She said inter alia as follows referring as she did to Dame Elizabeth Butler Sloss's guidance in Payne (please see paragraph 34    below)

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

142. Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else – the valuable guidance – can be ignored.  It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.

143.     Furthermore, the effect of the guidance must not be overstated.  Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.  Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 (“Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children”) for re-elevation to a status akin to that of a determinative presumption.  It is doubly inappropriate when one bears in mind that the judgments in Payne must be read as a whole, with proper weight given to what the then President said.  She said that she wished to reformulate the principles since they may have been expressed from time to time in too rigid terms with the word ‘presumption’ over-emphasising one element of the approach (paragraph 82) whereas the criteria in s 1 Children Act govern the application (paragraph 83) and there is no presumption in favour of the applicant (paragraph 84).  Dame Elizabeth referred, of course, to the effect on the parent with residence (paragraphs 83 and 84) but she also stressed that the relationship with the other parent is highly relevant and that there are many other factors which may arise in an individual case (paragraph 84).  I detect in her discussion of the factors and in her summary at paragraph 85 no weighting in favour of any particular factor.  She said that the reasonable proposals of the parent with a residence order wishing to live abroad carry “great weight” whereas the effect on the child of denying contact with the other parent is “very important” but I do not infer from that phraseology any loading in favour of the reasonable proposals as opposed to the effect of the loss of contact.

144. Payne therefore 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.  I do not see Hedley J’s decision in Re Y as representative of a different line of authority from Payne, applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part.  It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.

32.  Thus it seems that the approach taken by Thorpe LJ is rather different from that adopted by Black LJ. Lord Justice Thorpe seems to have identified Re: Y as being the first in a different line of authority to Payne, whereas Black LJ sees Re Y as being only one case in a whole range of different cases dealing with relocation. She sees Re Y as simply representing one end of the relocation spectrum.

33.  In either event it seems clear that both of the Court Appeal Judges acknowledge that in the event that there is not one primary carer and the day to day care of the children is genuinely shared between two committed parents, that there should be a difference of emphasis or approach when considering the case. I agree. I am nevertheless assisted in this, as was Hedley J in Re: Y, by the guidance provided by Dame Butler-Sloss in Payne. Dame Butler-Sloss said as follows:    

In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases.   They are not and could not be exclusive of the other important matters which arise in the individual case to be decided.   All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance.   The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

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

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

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

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

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

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

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

All the above observations have been made on the premise that the question of residence is not a live issue.  If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant.  If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence.  The mother in this case already had a residence order and the judge’s decision on residence was not an issue before this court.

34.  Although Hong Kong does not have the benefit of a Children Act, it seems to me that this approach is eminently sensible and in keeping with the provisions of our own Guardianship of Minors Ordinance, Cap 13 which states that the welfare of the child is the court’s paramount consideration.

Discussion

35.  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 also heard evidence from Mr M, the social welfare officer who filed two reports dated the 8 March 2011 and the 13 June 2011 respectively. I have also been referred to the two reports received from South Africa dated the 22 March 2011 and the 22 June 2011 respectively.

Character of the parties

36.  In all cases concerning children it is important for the judge hearing the case to see the parties in the witness box in order that the judge may form some view of them for him or herself. In this case it should also be noted that the mother began by being represented but ended up conducting the trial herself. The father had counsel.

37.  The mother came across as being a very intelligent and articulate woman. Although representing herself she was extremely well prepared and conducted the case better than many lawyers would have done. She was impressive in her research, preparation, delivery and presentation. She seems very determined to leave Hong Kong. Her interests could perhaps be best described as being “alternative” and she came across as someone who was searching for a better way to live and was passionate about the things she believed in. I have no doubt that being a “mother” is extremely important to her and that she is a very good Mom to her boys.

38.  The father came across as being more main stream He seemed very focussed – someone who liked to make a plan and to stick to it. He was equally determined that the boys should remain in Hong Kong. He seemed very conscious, quite rightly, of the increasing importance of his role as the boys approach puberty. He emphasised his interest in the boys sporting endeavours. I have no doubt at all that he is also a very good Dad and that together the parties have made a very good parenting team.

39.  Both describe difficulties in their relationship of late. I think that is hardly surprising given the stresses and strains of this litigation and possibly other difficulties caused by the formation of new relationships outside their own.

Could either parent be described as the primary carer of the children in the classic sense of that term?

40.  It is true, as Thorpe JA has said, that in most cases that come before the courts, whether in Hong Kong or England and Wales, there is normally one clearly defined primary carer of the children. The children are normally based with one parent who has care and control. That parent will probably have the children with them for more of the time and that parent will be responsible for most of the day to day decision making.

41.  As I have said much of this case was spent trying to determine if either parent could be described as the “primary carer”. The mother felt strongly that she was that person. She said that she was the parent who was consistently available for the boys. She said that she did not work full time because she wanted to be fully available for them. She said that she was responsible for all facets of their lives including making medical appointments and dealing with any psychological or emotional issues that they might have. She said that her life revolved around them. She maintains that this is why she is also the parent with care and control. She said that even if the boys were not in her care that she would generally attend their sporting and other events, whereas the same could not be said of the father.

42.  In summary she put it thus in her third affidavit of the 9 May 2011

22. I do not merely hold the “title” of care and control as it is a daily responsibility.  It does not merely involve the list of matters in Recital A items (i) – (xvi) of the order.  I hold the well being of the boys in me every single moment of every single day whether they are sleeping in my house or not.  These include, but are not limited to seeing them and checking in with them every morning before school starts and every afternoon when school ends and checking them at break or lunchtime; dealing with playground incidents with C and his friends on several occasions; ensuring they have all the school uniform and sport items needed, taking warm clothes, snacks and drinks to practices; monitoring their health and energy through diet and supplements especially C who does not eat fruit or vegetables, dealing with lice and worms; dealing with friendship difficulties and anxiety; organising activities and watching activities; doing homework, establishing routines; keep stretching their reading skills; checking with them emotionally, listening and creating space for them to share emotional issues; keeping teachers informed of emotional challenges happening with boys; checking in with teacher regularly to see how the boys are doing; attending parenting courses and talks to keep aware of new ideas of how to manage challenges; limiting influence of technology and television in daily lives; nurturing spiritual practices and beliefs, model and talk about values; using skills to support emotional processing in challenging times; physical care, bathing, haircuts and the like; choosing products that are not harmful to the boys; enrolling for new sports; filling in their forms; taking boys to dentist for checkups and following up on referrals from dentist and doctors; participating in and preparing for school functions and birthdays at school and the list could go on.  Basically my role in the boys’ lives did not change following the custody order.

As I have said there is no doubt that she is a good Mom.

43.  The difficulty I have however is that, even on the mother’s own case, the father has had the care of the children for significant periods of time. On the father’s case he says that in 2008 he had the care of the children for 53% of the time, 45% of the time in 2009 and 48% of the time in 2010.

44.  During the trial both sides went to great lengths to show how much time each spent with the boys. What soon became clear as a result of that process was that each parent did indeed spent a considerable amount of time with them on a day to day basis. The father is able to do this as he is able to dedicate time to the boys when he is at home for several days at a time inbetween flights.     

45.  The mother says that in any event this is only sustainable because she makes it work. In particular she arranges the monthly schedule once she receives the father’s roster each month. She also points to the fact that the father relies on the assistance of N – the parties’ domestic helper who has been with the family since shortly after T’s birth. However I have also noted that N comes to the mother’s home for three hours every afternoon when the children are with her and that she also assists both parties in the smooth transition between the two homes. In that sense both parties rely on her help.

46.  The father maintains that he is a fully involved parent. He describes his time with the boys as follows:

35. On the 15 days per month the boys are with me my weekly schedule is a fairly set routine.  I start my day with exercise at 5am in the morning before the boys wake.  I am back at home for the boys waking up and I get the boys ready for school each morning and we have breakfast together.  I then take the boys to school by 8:25am.  I then go to [the shop] at Discovery Bay, which is a 10 minutes walk from the boys’ school.  I employee 3 staff to work in the Discovery Bay store and I spend an hour working at that store.  I then take the 10:10am ferry from Discovery Bay to Central and arrive at [the shop] at Wyndham Street at 11am.  I have 2 staff working in this store.  I then spend a few hours working at the store with them and then take the 2pm ferry from Central to Discovery Bay to collect the boys from school at 3pm.  Every Wednesday I will work a full day in the Discovery Bay store whilst the boys are at school.

36. There are the odd occasions where something comes up at the last minute which means I am unable to pick the boys up of an afternoon after school but in the last 3 years I estimate that this is probably been only about 7 occasions.  If something does come up on those occasions then I have arranged for N to collect the boys from school.  It is usually a business related meeting that prevents me from being at school.  Overall, I structure my working hours in the stores around the boys’ school schedule which has proved to work very well.  My employees at the stores are also family orientated and they understand my working schedule revolves around T and C.

37. In T’s [the respondent’s] affidavit at paragraph 9 she makes comment on my flying schedule, my sport commitments and the time I spend at the sport store suggesting that this is consuming my time and that I do not spend my allocated time or sufficient time with the boys.  This is not correct and I am able to answer to each of the comments T makes.

47.  All in all it seems to me that the boys are extremely lucky to have two such dedicated parents. I accept that neither parent is a primary carer of the children in the classic sense of that term given that the boys have the benefit of spending significant periods of time with both of them.

48.  Given this, it seems to me that this is a case of genuine shared care if not absolutely equal care and one which the boys have clearly benefited from greatly. They are both doing well at school and excel academically and in the sporting arena. They are a credit to both of their parents.

49.  Although the mother makes much of being the primary carer I have also taken on board the fact that she has been able to develop other interests and have other relationships of her own away from the boys, which the father has supported and which have also necessitated regular travel away from Hong Kong. She has been able to do this because the boys are with their father for significant periods of time. Likewise the father has also developed his own interests which sometimes take him out of Hong Kong. The boys are with their mother during those times. The father lives with his partner, who is also South African and the mother is also in a relationship. She says that this does not influence her decision to return to South Africa. The mother has also had other relationships following the breakdown of the marriage, one of which was a long distance relationship.  

Given that should permission be given for the boys to leave Hong Kong in order to relocate to South Africa with their Mother?

What are the mother’s proposals? Are these reasonable in all of the circumstances of this case?

Plettenberg Bay, South Africa

50.  The mother wishes to relocate to Plettenberg Bay in South Africa. This is a town popular with tourists and is situated on the Garden route on the Western Cape.

Access proposals

51.  Much of the trial was taken up with issues pertaining to access. The mother proposed that the father come to South Africa at least once a month, when he had a block of five days or more available from work, in order to see the boys. She suggested that he could stay with her – something that the father said was not feasible. The mother sets out a number of proposals in her documentation. In essence she suggests that the father come to South Africa as often as possible and at least once per month. She also suggests regular skype and telephone access. In addition to the monthly access she proposes regular access to the boys over their school holidays – either in Hong Kong or South Africa or elsewhere. She suggests that the father have access for the three weeks over the Easter holidays, (end of March/April), for three and a half weeks over the summer (end of June/July) and for half of their Christmas holidays which would be a further three weeks. This is 9 ½ weeks in all.         

52.  The father says that it would simply not be possible for him to do as the mother suggests. Although, as a pilot he has blocks of time off between flights, these would normally be after a long haul flight. The mother’s proposal would mean that he would have to leave Hong Kong immediately after he has returned from a long haul flight for work. The flight to Johannesburg is also long haul – approximately 13 hours. He would then have to make a connecting flight to George from Johannesburg. There was some debate about the length of time this would take – but suffice it to say that it could take up to a couple of hours for him to make that connection. The flight George would take a further 2 – 3 hours. He would then need to drive down the Garden Route to Plettenberg Bay. The whole journey would take a long time to complete. The father would be jet lagged. The boys may very well be at school once he arrived. He has no where to stay. He would then only have a very short amount of time before he would be obliged to return to Hong Kong for work. He would likely to be jet lagged and exhausted once he got back, when he would then be obliged to captain a long haul flight for his employer. He put it thus during the trial      

“I would not be able to make it monthly to South Africa as T proposes as the journey is impossible to do in 5 days. I would have 1 full day in Plettenburg Bay after a 20 hour journey and a minimum time zone change of 6 hours. The boys could be at school this day with sporting activities so in fact it could possible be around 2 hours one-on-one time with them.

It is more likely that I could make it to South Africa 2 to 3 times a year.  This to me is insufficient time to have the same relationship as I have with the boys being a hands on involved parent in their lives.” [P2/19/640]

53.  The impression given by the mother during cross examination was that she thought that the father was just being difficult and that he would be able to make this work if he really wanted to. She pointed out that if the father was able to travel to participate in iron man competitions then he should be able to travel to see his children. I do not agree. I think it will be virtually impossible for the father to have access to the boys on the regular basis envisaged by the mother. Given the fact that he plays such a significant role in their lives at present it seems to me that this would not be in their best interest for him to be removed from their day to day experience in this way. The father fears that it would have a negative effect on the bond that he has with the boys and could fracture a future relationship. Whilst I accept, as the mother points out, that parents are able to maintain meaningful relationships with children notwithstanding the fact that they live long distances away from each other, in the circumstances of this particular case it seems to me that that at best the distance could alter the relationship very significantly.

54.  I also accept that there might be difficulties with respect to the boy’s school holidays in that the father would not be able to guarantee that he could have that time off. Consequently even if the boys came to Hong Kong for those periods of time the chances are that he would only be able to spend a limited amount of time with them. It was not clear to me how this would actually work in practice. The father also complained that he had had difficulties contacting the boys in the past when they have been in South Africa and that skype contact in particular could be problematic. I accept this has been a problem in the past and could be a problem in the future.   

Accommodation

55.  The mother intends in the first instance to stay with her closest friend who lives in the area. She then hopes to buy a small holding, with a main house and other chalets, which she then intends to rent out in order to provide an additional income and where she says the father can stay when he visits the boys. She has provided details of properties that she considers suitable in her affidavits. In her third affidavit she says that her mother and stepfather intend to join her on the small holding and the impression is that they will live as a three generational unit. In her closing submission she says that the grandparents will definitely join her. The father is doubtful about this and says that he does not believe that they could afford to do so. In any event the mother says that she hopes to live off the land as much as possible. Originally she wanted to develop an eco village – but was later told by the local authority that this was not possible in this part of South Africa. 

56.  The father has significant concerns with respect to the mother’s plans. I believe that he is justified in this. The mother has never been involved in a project like this before and certainly does not have a background which would support it. Certainly on looking at the properties themselves one is struck by how isolated some of them seem. He does not believe that this is a well thought out proposal. In particular he says that the mother has a track record of forming passions for certain things in an attempt to find fulfilment or happiness. He believes that this is simply the latest one. The father is also concerned, and again with some justification it seems to me about the family’s safety. He said that he would not rest easy knowing that the mother, as a single white woman was living on a small holding, with the boys, in a country which has a very significant security problem. The mother says that she would never consciously put herself and the boys in danger. I accept that this is her intention. However she has not lived in South Africa on a permanent basis for a long time. I accept in the circumstances that the father’s concerns are valid. Indeed I share his concerns.    

School and sporting opportunities

57.  The mother wishes the boys to attend H school in Knysa. According to the prospectus about 65 pupils come in to this school each day from Plettenberg Bay by bus. This is about a 40 minute ride. The school itself is relatively new with approximately 400 pupils ranging in age from 4 – 18 years. It seems quite progressive in its outlook.

58.  In comparison if the boys remained in Hong Kong they would either continue to be educated on Discovery Bay or they could alternatively move to an ESF school for their senior years.

59.  Both options have something to recommend them. Both seem to be acceptable alternatives. If the boys moved they would have to adapt to a new curriculum which would include Afrikaans. Mandarin would no longer be an option.

60.  The mother has suggested that the boys would have more sporting opportunities if they went to South Africa. I do not necessarily accept this. H is quite small making competitive sport somewhat difficult within the school itself. There are many sporting opportunities for children in Hong Kong – especially in some of the areas that the boys have shown an aptitude – e.g. rugby, soccer, hockey and cricket. These opportunities exist both within the school system and also at club and national level. Although I have no doubt that the boys would benefit from the sporting opportunities in South Africa, I do not think it can be said that very similar opportunities would not also exist for them in Hong Kong.          

Work and lifestyle choices

61.  The mother’s choice not to become more financially independent is a source of some friction between the parties. If she is allowed to relocate she says that

The potential for me to work is available but work and being available as a mother need to be balanced.  There are many possibilities for me, which include but are not limited to:- Private speech therapy for children in schools and with children under 5 during school hours; start a Journey for Schools program in the Garden Route that has already been piloted in Cape Town and is income generating called Conscious Classroom; Generation Wake Up presentations in schools; awakening the Dreamer symposiums/trainings in institutions and organizations; workshops for children and parents related to emotional and spiritual well being; and expanding my mother’s business in the Garden Route area earning a basic plus commission.  I already have a letter of appointment for the latter and can start with that.

62.  It seems then that if the mother moves to South Africa that she would work part time and continue to pursue her other passions. She intends to continue to rely, certainly in part, on the father for financial support for both herself and the boys. This would remain the case if she remained in Hong Kong.

Other areas of concern:

Crime

63.  The father has expressed very real concern about the level of violence in South Africa. He has referred in his affidavits to a number of newspaper articles and to statistics produced by the United Nations Office on Drugs and Crime. The mother has tried to play down the level of violence in this part of South Africa and says that it is mainly confined to the townships. While that may or may not be the case there can be no doubt at all that South Africa is a much more dangerous place to live than Hong Kong and that there would be some risks associated with any intended move. The father says that this is not an acceptable risk to take. I tend to agree.

Pollution and air quality

64.  The mother says that this has to be looked at in the round and that conversely Hong Kong is much more polluted that South Africa and that this is an ongoing threat to the children’s health and general well being. Although I accept that air quality and other environmental issues are a continuing problem in Hong Kong, it seems that this is really an attempt to compare apples with oranges. They are two different problems. The fact that there is an air quality problem in Hong Kong does not detract from the magnitude of the security crises in South Africa and the threat that that poses.

Lack of opportunity and displacement

65.  The father is concerned about the lack of opportunity longer term for the boys in South Africa and has referred to the number of White South Africans leaving the country. The mother has countered this by highlighting the need for them to identify more strongly with their roots and national heritage. She has also suggested that they may move again away from South Africa for their tertiary education. Interestingly in the first social welfare report the mother is also reported as saying that the boys should be allowed to relocate to South Africa and that the parties could then reconsider their options once the boys turned 14 years of age. If the boys wanted to return to Hong Kong then they could do so then. Although I appreciate the mother’s wish for the boys to identify more strongly with their roots, I accept the father’s concerns about the opportunities presently available for them if they decided to remain in South Africa longer term.

Other options  

66.  The mother says repeatedly that she had always intended to return to South Africa and that it was never her wish to remain in Hong Kong for so long. Although I accept that up to a point the fact remains that the mother has lived here for over 15 years and that the boys have been raised here.

67.  The father does not accept that the mother has always wanted to return to South Africa and has pointed out that they also considered moving to New Zealand or Australia. The mother says herself that had the parties remained married that they would probably have based themselves in Phuket with the father commuting between Hong Kong and Thailand.

68.  The father says, and I believe him, that for him Hong Kong is now home. He has no plans to move. He is happy here. His life is here. This is not a case of an ex patriate living in Hong Kong for a short period of time, for whom Hong Kong can never be home.

Are the proposals genuine or are they made with the intent of bringing contact between father and sons to an end?

69.  Although I accept that the mother’s proposals are genuine, it is also clear that the mother is not happy with the current care arrangement and that she feels that it is not in the boys best interests to move between two homes. She complains that the boys are stressed and that the father is hostile towards her. Ms Rattigan summarizes the mother’s position as follows:

The Mother has complained in her evidence that this arrangement suits no-one except the Father.  She says she does not like it all and she also attempts to allege that the boys have not been coping well with this arrangement.  This is clearly in an attempt to bolster her case, Mr. M’s independent evidence showed that this was not the case as the boys were in fact very happy with the present arrangement.  When questioned as to whether or not he got any impression that the present arrangement was upsetting the boys his response was “From talking with them, from the talking between them and me I did not have such observation.  From the talking between them and me and from the observation, I did not have that observation” [T/20/J-L].

70.  Whilst I accept that the mother’s proposals are not made with the intention of bringing contact between father and the boys to an end, it seems to me that at best the father’s time with the boys will be very limited if the relocation is permitted. I also accept the point made by Ms Rattigan for the father that the mother seems unhappy with the present arrangement. She complains about not seeing the boys every day. I believe that she would welcome the possibility of becoming the boy’s primary carer. Whilst acknowledging the importance of the boys having an ongoing relationship with their father she clearly does not believe that this should be to the detriment of her own relationship with the boys or of the time that she is able to spend with them.        

Impact on the mother if the relocation is refused

71.  Although the Mother has filed no psychiatric or psychological evidence I accept that she would be devastated if her application was ultimately refused. She says that she is unhappy and that she feels trapped in Hong Kong. I accept that she genuinely feels these things.  

Impact on the father if the relocation is granted

72.  Likewise I also accept that if the relocation is granted that the father would be equally devastated. Again he has not filed any psychiatric or psychological evidence in support of what he says.  

The opportunity for continuing contact between the children and the left behind parent

73.  It is this aspect of the case that causes me the most concern in that I am not convinced that the boys would be able to see their father on a regular basis if the application were granted. Given the present circumstances I do not believe that this would be in their best interests. It has been suggested that this might be counterbalanced by the boys having regular contact with their extended family. In reality it seems that this would mean them having regular contact with the maternal Grandmother and stepfather and the mother’s brother and his family. I accept that there is a possibility that they may also be able to see a bit more of their paternal Grandmother in the short term. I accept that she may move in due course. They would not see the father’s other family any more regularly. I do not believe that this would sufficiently provide a counterbalance to the loss of the Father’s involvement in the day to day life of the boys. 

Social Welfare Reports

74.  Recommendations made to the court in social welfare reports, although not binding are persuasive.

75.  Mr M filed two reports. In the first report dated the 8 March 2011 he did not make any recommendation pending receipt of the International Social Investigation Report from South Africa. However he did report on the boys views on the matter.

76.  With respect to T, he reported that

On this permanent removal matter, he expresses to have been facing a very big struggle in his heart and being torn on his loyalty between his father and his mother.  He understands that if he goes to South Africa, both he and his father will be very sad and heartbroken for not being able to be together as often as they can have now.  On the other hand, if he stays in Hong Kong, his mother will not leave Hong Kong because she loves him so much but she will be very sad.  He expresses that the worst thing about divorce is not seeing the parents together, and he feels sad when the parents fight.  He wants the whole family together and does not want his parents to separate.  Also, if he moves to South Africa, he will not be able to see his good friends.

77.  C said as follows:

C says that he likes to go to South Africa as he can see his maternal grandmother and cousins. However, he does not like to go to the school there because it is too small and he knows nobody there.  He expresses that he will feel sad if he goes there because he will lose his good friends in Hong Kong; his father will not be happy because his father will not go there, and C cannot see his father as often as he has been.  He also feels sad if he stays in Hong Kong because his mother will not go to South Africa and she will not be happy.  He wants the whole family together that he can see each other and he wishes that his parents did not divorce.

78.  Mr M observed that

The children have developed very strong bonding and solid relationship with both parents.

79.  In the second report dated the 13 June 2011 he reported T’s views as follows:

He maintains that both parents are loving, caring and supportive, and have treated the children fairly.  He loves his parents equally.  He expresses that he has no preference to live in Hong Kong or to live in South Africa but he tends to lean on the side to live in Hong Kong.  It is because if he remains living in Hong Kong, his mother will not leave him and she will not go to South Africa by herself alone.  Therefore, all the family members will be together and he will be able to see and to be with both his father and mother members will be together and he will be able to see and to be with both his father and mother all the time he wants.  On the other hand, moving to South Africa will mean, only his mother, C and him are together as his father will be in Hong Kong.  Therefore, he will not be able to see and to be with his father as often as he has been.

80.  With respect to C he said

He maintains that his parents are both very kind to him.  He expresses that he has no preference whether to live in Hong Kong or South Africa.  However, he said “if we don’t go to South Africa, my mom will stay, because mom won’t leave without us”.  In this connection, he tends to prefer to live in Hong Kong because he can see both his father and mother together all the time.  If he is to move to South Africa, he will not be able to see his father as often as he has been.

81.  He concluded that weight should be given to the children’s own views as expressed above – i.e. that the removal application should not be granted. I clarified this with him in the witness box and he confirmed that although quite evenly balanced that the children would prefer to stay in Hong Kong so that they could continue to see a lot of both parents and that he was inclined to support them in this.

82.  Commenting on the boy’s relationship with their father he made the following comment in the witness box: 

Language wise, the boys expressed that if they could not see their father at any time just like what is happening now, they would be very, very sad.  But from extra language observations, non-verbal observations, it could be observed that the boys and the father had had close contact.  From their body language, from the feelings showed by their eyes, from non-verbal things, I could also see that actually the boys also had great trust in their father.

It took place in February 2011.  I have had a deep impression of this when at that time the boys were playing bowling with the father.  The boys very often hugged their father, and the father also held the boys – also hugged the boys.  There were two occasions for the elder boy and the younger boy.  They stood on the – the two boys stood on chairs respectively.  At separate times, the two boys stood on chairs.  They jumped toward the father without prior discussion.  You could see from the feelings shown by their eyes – they have eye contact.  Then the boy jumped toward the father.  The father spontaneously hugged – held the boy tight.  In this situation, had there not been any trust, the boy would not jump toward the father, and the father would not have held the child tight immediately.  At that time they were playing together.

The boys believed that the father would definitely go to South Africa to visit them, but the boys were very much worried that if they went there, they might not be able to see their father always, all the time, just like they are doing now, because now I could see the present relationship between the father and the child, and I could see that if they relocated, their relationship would be changed and would be affected.  The children were also very much worried about that.

83.  Social Welfare Officers are often called the eyes and ears of the court. In this instance Mr M’s observations were extremely helpful. It confirmed that the boys do indeed have a very close relationship with their father.

84.  I have also had the benefit of reading the two reports received from a social worker attached to Child Welfare, South Africa for Plettenberg Bay. The first report was available for the first tranche of the trial. The second was forwarded to the court on the 26 July. Both reports provide useful background information. Not surprisingly the comments made by the people interviewed in those reports are largely self serving and depend on whether they are supporting the mother or father. None of them were called as witnesses and I do not intend to attach very much weight to what these parties have said.

85.  In commenting on the second report Mr M said:

Having considered the content of this Supplementary Report, the undersigned, i.e. the Investigating Social Work Officer of the above case, is inclined to maintain his recommendation as mentioned in paragraph 23 of his Further Social Investigation Report dated 13-06-2011, i.e. “it is in the best interest of the children for the Court to give weight to the views and wishes the children have expressed.”

86.  I accept the recommendation made by Mr M in this respect.

Conclusion on relocation

87.  Given all of the competing factors set out above it seems to me that it will not be in the boy’s best interests for this application to be allowed. I appreciate that this will be a significant blow to the mother. But I am also painfully aware that at the end of the day my one abiding concern must be for the welfare of the boys. It seems to me that in all of the circumstances of this particular case that their welfare would be better served by them remaining in Hong Kong.

How should the children’s time be allocated between their parents once the relocation issue has been determined?

88.  The father wishes the status quo to be maintained. The mother has indicated that as far as she is concerned the present situation is not in any event working as well as it might. I will therefore give liberty to both parties to apply to vary the present care arrangements if agreement on these issues does not prove possible. Notwithstanding the rather difficult nature of this type of litigation I would also strongly recommend that the parties consider returning to mediation to discuss these points prior to embarking on another round of litigation.

89.  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. There shall be certificate for counsel.

Ms M Rattigan instructed by Messrs Withers for the Petitioner

The Respondent acted in person