PJM V. NPGP formerly known as GPN
HTML content
FCMC 4999/2014
[2023] HKFC 172
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 4999 OF 2014
----------------------------
BETWEEN
| PJM | Petitioner | |
and | ||
| NPGP formerly known as GPN | Respondent | |
------------------------
| Coram: | Her Honour Judge Thelma Kwan in Chambers (not open to public) |
| Dates of Hearing: | 3-5 July 2023 |
| Opening Submissions from Petitioner and Respondent: | 28 June 2023 |
| Closing Submissions from Petitioner and Respondent: | 20 July 2023 |
| Date of Judgment: | 23 August 2023 |
----------------------------------------------
J U D G M E N T
( Relocation )
----------------------------------------------
This Application
1. On 21 June 2021, Petitioner Husband (“H”) applied to permanently remove two children of the family to Australia (“Relocation Application”).
2. Respondent Mother (“M”) opposes the application.
3. Due to the urgency for one of the children’s medical needs, I have decided to come to this decision expeditiously, and to grant H’s Relocation Application.
4. Both parties appeared in person.
Parties background
5. Parties met in 2006 and were married in November 2007 in Hong Kong. There are two children, both born in Hong Kong, namely a son T born in March 2007 (“T”), and a daughter C born in October 2010 (“C”), (together the “Children”); they are 16 and 12 respectively.
6. H is now aged 47 and comes from New Zealand. He works as a Business Analyst and Planning Manager for a local law firm. He says he needs to work normal work hours, but has permission from his employer to work remotely.
7. W is age 46 and a Filipino, she is employed as an IT trainer by a local law firm. She says she has worked there for 8 years and has no intention to change employment. She also states in oral evidence that she has flexible working hours so long as she completes her 7.5 hours a day, and can work from home on informing her employer.
8. T’s situation shall be elaborated at length below, and is an important factor in the consideration of this Relocation Application. Both T and C study at an international school.
9. F filed his petition on 22 April 2014, Decree Nisi was pronounced on 12 September 2014.
10. By a Consent Order dated 4 December 2014, the parties have joint custody and joint care and control of the Children.
11. From August 2015, the Children spent alternate week with the parties, with change over on Friday afterschool. Both are hands-on parents.
12. H has remarried to his new wife (“D”). They met in 2019. She lived with H in Hong Kong from 2019-2021 but has since moved back to Australia for work and to be with her two children from her previous marriage. They registered their marriage in October 2021 in Hong Kong. D’s two children are respectively 17 and 9 years of age.
About T
13. T was diagnosed with developmental delay with autistic features when assessed at age 3 in 2010.
14. W has complained that H did not acknowledge T’s special needs in the past. However, even if she is right, it is clear from the Social Investigation Report (“SIR”) in 2017, that F has acknowledged and accepted T’s condition by then. Two earlier SIRs (2017 and 2018) cited T as polite and compliant, his then principal said that T was quiet and his emotions calm at school.
15. T was referred to have a psychoeducational evaluation, a report was produced in November 2021. According to this Education Psychology Report, he was identified as experiencing ADHD, combined presentation, severe and Social (Pragmatic) Communication Disorder in 2014. He was on medication but this continued for only two years whereupon he stopped as he did not like the side effects of the medication. In 2016 in an updated assessment, T was reported as having “weaknesses in his social thinking skills, his pragmatic language skills, and his ability to regulate his emotions in a timely and expected manner”.
16. In the said 2021 Report, he was diagnosed to suffer from ASD (Level 1, without accompanying intellectual or language impairment), also known as Asperger’s Syndrome; ADHD; Generalized Anxiety Disorder; specific learning disorder with impairments in written expression; and neurodevelopmental disorder associated with graphomotor weaknesses. Follow up recommendations include monitoring by psychiatrist and psychologist, therapy; and to consider medication to support his areas of difficulty.
17. In January 2022, T suddenly decided not to stay with W on the week on-week off arrangement. H said that this was in part due to W not observing some boundary issues which affected T.
18. Since then, T sees psychiatrist Dr H for his diagnosis of Autism and ADHD, and psychologist Dr N for his “anxiety issues”.
Incident in August 2022
19. By agreement of the parties, T and C went to Australia to spend summer holidays with H and his new wife D in July 2022, this was unexpectedly extended when H contracted covid.
20. H’s version of what happened was that in around 8 August, a series of events which took place at his Sydney home prompted H to contact T’s psychiatrist Dr H in Hong Kong, and in turn resulting in him taking T to a local hospital for assessment of his condition. On this occasion, M says that she was not aware of the “long list” of issues that T was experiencing, and only knew when she joined the call with Dr H and H on 8 August 2022.
21. T was found to experience an acute mental health crisis, diagnosed as a “first episode psychosis” and was admitted to B Child & Adolescent Mental Health Inpatient Unit in Sydney (“B Unit”) on 11 August 2022.
22. Thereafter, T was placed at B Unit under a court issued “Involuntary Patient Order”, for the purpose of his treatment.
23. C returned to Hong Kong to attend school in October 2022 and stayed with W.
24. H has per Court Order dated 2 November 2022, requested B Unit to issue a report of T’s condition. B Unit’s “Discharge Report” dated 23 February 2023 and amended 27 April 2023, was put into evidence. The Discharge Report reveals that H has reported the following symptoms T exhibited in the week preceding his admission, which include the following:
“- Spitting on things, along with abusive and repetitive speech
- Physically aggressive towards younger sister, using objects such as a tennis racquet to hit her
- Sexualized comments towards younger sister, indicating that he wanted to touch her and be intimate with her
- Verbally abusive towards father, stating he hates him, telling him to “fxxx off”
- Compulsive behaviour such as eating grass, sticks, leaves and eating the end of pens
- Standing in the middle of the room and staring at the wall, unresponsive to father
- Religious comments: speaking about God and devil being in control of his life
- Observed to be muttering to himself”
25. The following is an excerpt from the B Unit Discharge Report:
“Initial Observations
T was observed to show signs of ongoing disinhibited behaviours on the psychiatric ward. T was spitting and urinating in common areas. T was also sexually disinhibited …. During review he was difficult to engage and often non-verbal to questioning. T reported hearing voices telling him to take off his clothes, do frequent push ups and refuse medications. T reported believing that food in the hospital was poisoned.”
26. Doctors treating him at B Unit also opined that “Prior to this deterioration in mental state, there had been a 6-12 months history of possible prodromal symptoms.”
27. T ended up staying in B Unit and was only discharged on 23 February 2023, he returned to Hong Kong escorted by H. Thereafter, the parties returned to the week on-week off arrangement with the Children.
Incident in April 2023
28. After T’s return to Hong Kong, H says that there have been a number of incidents which finally led to him to contacting Dr H again in April 2023, and resulted in T’s admission to the Adolescent Psychiatric ward at QMH.
29. Incidents from 23 February 2023 to 7 April 2023 include the following, coupled with the W’s response from her cross examination.
Incidents W’s responses in cross examination by H Intended suicide before a bus in Causeway Bay But he did not jump, he told me after that he got scared Wet his pants at home and in public
In the reception area of Dr LHe wet his pants three times las week,
but less than before … he did it in public toilet
YesThreaten to poke out his eye On palm Sunday with the palm, I took it away Threaten to climb out the window from W’s home Intended to add grille, but not yet done, I make sure he is watched all the time after that Throw things out of bathroom window I found out when he told me, but he did not hit anyone Crash his bicycle But he didn’t, he mentioned he would do it, so I stopped the biking Climb out of moving taxi He reached out to the lever to open taxi door, I put him in the middle and hold his hands Expose himself to W Yes
30. H’s concern over these issues was that these behaviour indicated regression of which the parties were warned when T left B Unit; but W’s reaction to this was to say that they should not expect T to return to his baseline, and that certain types of these behaviours are expected to be exhibited. H says that W did not feel that these were “bad enough” to warrant admission to a hospital, but he felt that it was the prudent thing to do to get T assessed to determine if admission is needed.
31. During H’s cross examination of W, he reminded her the B Unit has stressed how important it is to ensure that the parties must seek hospital help right away if T shows signs of regression, as psychosis if left untreated in young patients will have a long-term negative impact.
32. W eventually conceded (she said she had no choice) to take T for assessment at QMH in April 2023. T was admitted, H’s evidence is that T’s anti-psychotic medication was increased as a result.
T current status
33. In his oral evidence, H says that T is now stable as he is monitored by hospital staff and taking regular medications. However, there were occasion when T was restrained to his bed. As at the date of this decision, T should still be under admission at QMH.
34. When the SWO met with him at QMH, she reports the following in the updated SIR:
“… he disclosed his irrational belief that he felt safe living in the hospital because he would not be harmed. He indicated an ideation of self-harm behaviours that he had been considering to “poke his eye” repeatedly throughout the interview. When he was asked about C’s recent visit to the hospital, he replied that his sins could only be forgiven by “poking his eyes.”
35. The SWO also spoke to T’s treating doctor Dr H at QMH, who told her that the ward staff has been monitoring his suicidal risk: “Dr was of the opinion that the family members or the carer(s) have to closely monitor the suicidal risk whenever he mentions it because it is hard to tell whether his frequent reports of suicidal ideation is genuine or not.”
About C
36. C was diagnosed with a genetic condition of acromicric dysplasia which is short stature syndrome, she needs regular check-up. Her schoolwork is on track, she is cited to be a popular and engaging student who gets along with her peers and has a lot of friends.
37. However, C she was traumatised during T’s incident last summer, while in Australia, H arranged for her to see a psychologist. On her return to Hong Kong, W reported that she has mood swings and has exhibited suicidal ideation. After following up with external psychologist support, her condition is now of low risk.
38. She is reported as having a close bond with T, and has now settled back to the Hong Kong routine.
H’s case
39. H’s Relocation Application in 2021 seeks to remove the Children to Sydney, Australia in or around November 2022 so he can reunite with his new wife, settle down with all the children and integrating them into one family. He wishes to offer the Children better living environment and condition, and more options in schooling and career opportunities.
40. As part of his relocation plan, he found schools for the Children, and enrolled them. C still has a place now in the school that he chose.
41. H has made plans with his company to work remotely from Australia. He also relied on D’s guidance in his plans, as she grew up in Sydney.
42. After T’s incident last August, H has conducted more research and put forward more details on the care plans, special schools, and medical support available to T in Australia.
W’s Case
43. W opposes H’s application.
44. She said that it was her who first noticed T’s condition, and insists that H did not accept T’s diagnosis in the beginning.
45. She wants to keep T in Hong Kong so she can take care of him and she says her extended family members can also give him emotional support. She does not feel that H can take care of T with his new family and settling down in a new country.
46. She does not believe that H would keep her informed of T’s condition. She says that the past year’s experiences gave testament to that.
47. However, W says that she will give consent to C leaving as this is what C wants. She also told the SWO that she does not think her relationship with C has been affected by the child’s wish for relocation. She ask that H guarantees C’s safety and give her generous access.
48. W also says that should relocation be granted, she asks for H to pay for the children’s flights to Hong Kong, and for him to pay maintenance at US$500 per child per week when they are with her.
Reports
49. There are three SIRs after the Relocation Application, and one International Social Investigation Report.
50. The first relevant SIR (“1st SIR”) was prepared by one Ms L on 31 January 2022. The other two SIRs were prepared by Ms C dated 26 October 2022 and 19 June 2023 respectively (“2nd SIR” and “3rd SIR”). Both Ms L and Ms C attended court and were cross examined by the parties.
Social Welfare Reports
1st SIR
51. It was recorded in the 1st SIR, that T indicated his wish to go study in Australia. Preferring to have choices on jobs and universities and also as he will not need to speak Cantonese. He believes schools in Australia are better, and he can decide to go to boarding school or live by himself. He believes he will be able to get a job with good salary.
52. C also said she wanted to go to Australia, because she has an elder stepsister (D’s daughter). She believes there will be better education, a bigger home, better living environment and also closer to H’s relatives in Australia and NZ. Both Children seem to have a preference in being with H.
53. The 1st SIR failed to draw a conclusion as H’s plan back then was fluid and was unable to provide an address for the ISIR to be conducted. Parties were urged to enter into mediation to work out the details of the relocation plan, timing and access arrangements.
54. At this trial, W asks whether Ms L recall W telling her about T’s suicidal plan, but Ms L has no recollection of such a conversation.
2nd and 3rd SIR
55. The 2nd SIR was conducted when T was hospitalized in Australia and both parents were dealing with the crisis.
56. The SWO admitted that she could not comment on the relocation in full as she could not ascertain T’s views after his mental health crisis. Although she did refer to the ISIR wherein was reported T’s wish to study at the school that H has enrolled him into.
57. This 2nd SIR is helpful in reporting about C, and how she has gotten closer to D and her children the previous summer. It also speaks of her feelings about T. I find the follow excerpt from this report to be helpful with regard to C:
“25. The children had indicated their eagerness to relocate to Australia explicitly in the investigations of the SIR dated 22.3.2022, the ISIR dated 2.9.2022 and C in the recent interview on 8.10.2022 with the Investigating Officer had restated her wish for relocation. For a child of nearly 12 years old with mature, expressive, caring and candid in character, C's views carried significant weight in the investigations. She was reluctant to live apart from her elder brother and the strong siblings support had become. an essential protective factor for their healthy development over the years. Based on C's feedback on her positive experiences in Australia, the relocation proposals from [H] including schooling, daily living arrangement, family finance and healthcare support were well grounded and feasible for C. It was clear that C's wish to relocate to Australia basing on her preference of social, environmental and educational condition, instead of being influenced by either parent.”
58. However the 2nd SIR ends with this:
“26. However, the Investigation Officer could hardly comment on the relocation in full without studying the medical and psychological information of T from the medical team of [B Unit] at the present stage. In addition, it could be piecemeal to comment on the permanent relocation proposal on C only when the siblings had close bonding all along and that they had indicated identical preference for relocation to Australia in the past.”
59. The 3rd SIR was very detailed and was helpful to the court. The SWO is supportive of the relocation:
“58. The Investigating Officer opined that both the mental health professionals in Australia and Hong Kong had worked with dedication for T, alongside he had established rapport with the service providers at both facilities. Thus, an apples-to-oranges comparison on the healthcare facilities of the two places would not be necessary, it was the capability of the parents to formulate a practicable and pragmatic rehabilitation plan that worth the examination. Weight should also be added on the reliability of the parent to perceive the mental health and functioning status of T, and accurately match him to appropriate services.”
60. And she found that H has achieved this. Her findings at paragraph 68 of the 3rd SIR are extensive and repeated herein as follows:
“a. The relocation was not designed to thwart the legitimate relationship between the children and the mother. The father's return to Australia was necessitated by the fact that his wife, [D] was currently staying in Australia with her children in their home country.
b. The mother's good intentions in her opposition were considered, such as her concern for the child's adjustment to the changes or the reduction of her involvement in the child's life. Therefore, the relocation plan must ensure that the children will continue to maintain a relationship with her through a sensible and generous access plan.
c. Both parents were considered primary care givers for the children, since they were granted joint custody and shared care and control arrangements in 2014. All along, the children were close to both parents and lived in their homes on alternate weeks. The history of the child care arrangement revealed that the father had been a hands-on, involved parent. The relationship between the father and the children was harmonious all along.
d. The father reported a stable employment history, and that his current employer allowed him to work from home in Australia.
e. The father had confirmed with the Investigating Officer on 1.6.2023 interview that he would give full financial support to his children after their relocation to Australia.
f. The information in the ISIR dated 2.9.2022 supported that the quality of life of the children in Australia would be sustained at a comfortable level, considering the cost of living in Sydney.
g. The father and [D] decided to let their respective children at least complete high school in Sydney, thereby avoiding the children's state-to-state moves in Australia, which brought about the permanence of the relocation and the children's stability to live in one location.
h. In addition, the child would be entitled to a strong schooling, health care and welfare support in Australia. The father had supplemented Medicare coverage, schooling and welfare provisions by the government in Australia in his affirmations.
i. Schools options both for T and C had been identified, location and suitability for the children's academic level were studied and considered appropriate.
j. Considerations pertaining to the children's desires, as discussed in this USIR and previous reports: C consistently chose Australia, and T informed SIR and ISIR evaluators that he desired to study there. Feeling confused in a distressed mind, he has now asked the court to decide for him.
k. Timing and opportunity as a determining factor: the father had diligently formulated a judicious plan for a stable and thriving environment for the children; C had been waiting for two years for her relocation wishes to be fulfilled; T's mental health condition and his treatment needs were imminent, so it was timely and critical for him to kick start receiving the rehabilitation program in Australia. Considering that a 16-year-old in NSW, Australia, can apply for a provisional driver's license, the children would soon assume greater autonomy to move on with their life desires. Their learning and adaptation to the new environment at home and in school during their formative years were essential for their future in Australia.
l. Sydney, a major city in Australia, provides transportation convenience for the mother to stay connected with the children or for the children to return to Hong Kong to visit their friends and also their maternal family members for social and family reunions.
m. According to the father, he was willing to co-parent with the mother. He would promote the children's connection and relationship with the mother.
n. Considering the investigations of the ISIR, the previous USIR, and this USIR, which revealed the children's upbringing, cultural backgrounds, languages, psychosocial development, educational needs, medical needs and T's factors, the children's wishes, the impact of the move, and the opportunities for the mother to continue contact with the children in Australia, the father's relocation plan is considered comprehensive, reasonable and feasible.”
61. She also says that language is a factor that is important in her consideration. Neither T nor C are not strong in Chinese, as the majority of the patients and healthcare workers at QMH speak Cantonese, T could barely communicate with his caregivers in Hong Kong; however, he is able to communicate more effectively with the medical team at B Unit in his native tongue.
62. The SWO says she “believed that T’s care plan in the mental health institutions of Australia was predicted to be promising.” She is also convinced that “The father had done extensive liaisons with medical experts and the coordinators of the rehabilitative facilities and schools, as well as online research in both Hong Kong and Australia. He had a clear presentation on the reasons he chose Australia for A.”
63. Ms C also said that when she spoke to T’s doctor at QMH, Dr H says that that there is no immediate plan for T to be released from hospital and awaits result of this Hearing as one of the considerations to determine what is next for T.
ISIR
64. The ISIR dated 24 August 2022 supports the relocation.
“ISS Australia is of the view that [H]’s relocation plan is suitable and well considered and will serve the children’s best interests while still promoting T and C’s connection and relation with [W].”
65. It also comments that D’s current home environment is suitable accommodation for the Children, that H has the financial capacity to support the children if they were living in Australia, and that H’s good physical and mental health would ensure he is able to meet the needs of the Children’s daily care.
66. The ISIR also observes that further professional advice needs to be sought in relation to school options for T which would support his needs; and comments that the proposed choice for school for C is well resourced and will provide her well for her development and growth.
67. The ISIR shows in depth conversation between the assessor and the Children, and the assessor is of the view that the Children will thrive in Australia.
68. The following is a useful observation from the ISIR:
“The recent events with T and way that [H] and [D] have managed is indicative of a strong and united co-parenting relationship. [H] and [D] have been highly supportive of each other through a period of high stress, and effectively sought appropriate support to ensure T has the medical help he needs to recover. ISS Australia recognises that [H] and [D] have shown help seeking behaviours, which is positive, as there are likely to be future challenges when the family integrates. This recent event shows that [H] and [D] can effectively manage challenges relating to their children and will approach these from a child-centred approach.”
Stepmother
69. D is Australian who works as the Asia Pacific Regional Manager of a real estate company. She gave evidence is Court and was cross examined by W. She is conscious of the challenges which the new family unit will face with regard to various adjustments.
70. When challenged on the care for the children, she said that she is conscious to remind the Children that W is to have an important and continuous role in their lives. When cross examined by W as to why she only visited T twice at B Unit, she said that at the time of T’s psychotic episode in Australia, she has stayed at home to look after C when H made his daily trip to see T. She said she has also kept W in the loop on how T was progressing at B Unit.
71. W also cross examined her on how to balance care of T and D’s own daughter who has been reported to have some mood issues and history of self-harm. D said her daughter no longer has any issue since she is in her full-time care; and trust that between H and herself, they can “divide and conquer” and provide support to each other to tackle the challenges together.
72. The ISIR shows that there have been some historical issues with D’s ex-husband who has posed some alleged threats to her, the ISIR was thorough in investigating into these issues.
“ISS Australia view any perceived or real threat to children’s safety as incredibly serious. Through our discussions, [D] demonstrated insight into ensuring the safety of T and C would not be compromised as evidenced by her strong protective factor towards her own children and her proactive approach to limiting [ex-husband]’s knowledge of their whereabouts.”
73. On cross examination by W, D reassured her that her ex-husband is unaware of her residence, and that the handover of the son’s access is at a neutral location away from her home.
Legal Principles
74. My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13). It states that the best interest of the minor is the first and paramount consideration by the Court.
75. The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:
“1) …
2) …
3) The application should be approached as follows:
(1) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.
(2) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(3) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(4) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)
4) In short, the relevant factors are:
(1) The welfare of the child is always paramount.
(2) There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.
(3) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(4) Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(5) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(6) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(7) The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)”
76. In the recent case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases:
“4.12 This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore-Bick and Black LJJ were of the same view on this point.
4.13 …
4.14 … Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.
...”
77. I also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:
“141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.”
78. HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:
“53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (Internal Relocation) at [82] and [83],
82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.
83. ...
54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise. The “welfare checklist’ is only an aide-memoire. A judge is not required to mechanically list every factor to demonstrate that he has considered the same.
55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].”
79. The consideration of guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”). These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:
a. the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;
b. the child’s physical, emotional and educational needs;
c. the nature of the relationship of the child with each of the child’s parents and with other persons;
d. The likely effect on the child of any change in the child’s circumstances;
e. The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;
f. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
g. Any harm which the child has suffered or is at risk of suffering;
h. Any family violence involving the child or a member of the child’s family;
i. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
j. (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
k. The range of powers available to the court under this Ordinance in the proceedings in question.
l. Any other fact or circumstance that the court thinks is relevant.
80. With these principles in mind, I shall proceed to apply them to the case at hand.
Discussion
My impression of the parties
81. I am convinced that both H and W are loving parents to their Children. It is also apparent that T’s condition has increased the challenges to their on-going co-parenting after the divorce, especially when there were disagreement on T’s care and treatment.
82. What is also clear to me that in consideration of the parties’ submissions in this Relocation Application, that I must look into each’s capacity and ability to provide for the Children’s needs and on a longer-term basis, in particular for T.
Issues
83. I will follow the list of issues guided by the above caselaw.
Is the application genuine and not motivated by W’s desire to exclude H from the Children’s life
84. H’s motivation for better environment and opportunities for the Children to grow up is one of his reasons for this Relocation Application. He also wishes to move to Sydney Australia as this is where his new wife now lives. H’s intention is well documented in his supporting affidavits, and also recapped in the SIRs and the ISIR.
85. I remind myself this Application was made about the time D left to return to Australia, and before T’s incident in August 2022. But T’s condition has given this Court more factors to consider in this application.
86. The parties’ current access arrangement has been on-going for a long time on a week on-week off arrangement. The only break to that arrangement was when T refused to stay with his mother from February 2022 until his departure for the trip to Australia in July 2022. This break arose from the relationship between T and W, and not so much to do with any obstructions on H’s part. During these months, C continued with the pre-existing access arrangement with both parents.
87. Looking at the H’s access proposals in the event relocation is granted, he has offered W to see the Children over their holidays four times a year, to the effect that she has 2/3 of the Children’s school holidays. He has also filed an undertaking with the Court dated 7 July 2023 that he will pay for the Children’s return trip to Hong Kong to see their mother 4 times a year. Should T be unable to travel, he has also proposed to pay for W return tickets to visit T in Australia 4 times a year.
88. W complains that she won’t be able to see the Children, I disagree. When asked in court as to her working hours, she said that she is able to work with flexibility and there is no need to be attending office so long as she works 7.5 hours a day. She also said that during the week on-week off access arrangement, she could work around the Children’s schedule and work from home e.g. when C was at school, or after the Children go to bed.
89. Given H’s proposal for W’s access which takes away some financial concern, and her ability to work remotely, I am of the view that her access to the children will not be obstructed. There is no evidence before me that it is the H’s intention to oust W from the Children’s life.
Is the application realistic and found on proposals well researched and investigated
Accommodation
90. H’s current wife D has purchased a 4-bedroom home in Sydney and this is where H and the Children will reside initially. It is the couple’s plan to rent a 5-bedroom at such time when the 4 bedrooms are found to be insufficient.
Schools
91. H has researched into schools for the Children.
92. Understandably, options for T have changed. H has since looked for schools for T which cater to his special needs. He says he especially seek out schools to ensure that T would not be put in a situation where he might be bullied, both private schools and public schools have been explored.
93. In the School Choices Report filed by H dated 8 May 2023. The two private schools in Australia were recommended by Dr H, T’s psychiatrist in Hong Kong; both these schools cater to various special needs for students. Should T recover well enough to join mainstream schools, the public / government schools available to T are also documented in the H’s affidavit and in the ISIR report, and provide for children with special needs.
94. H has also submitted that Technical and Further Education (TAFE) NSW in Australia provides education and training to school leavers including those with special needs, and is also an available resource to T.
95. When asked about the admission situation to the two private schools, H explains that T has gone through the first level of assessment but both schools require the Wechsler assessment which have not yet been done due to T’s relapse in Hong Kong and his admission to QMH.
96. Given T’s condition, his education plans is being put on hold pending stabilization of or recovery from his condition.
97. As for C, she has been accepted into P Ladies College, and a place is held for her at this moment. The ISIR assessor opines this school to be a good choice for C:
“The College offers a world-class learning environment that provides opportunities for excellence in academic studies, sports and the arts, a comprehensive curriculum with outstanding facilities and a nurturing pastoral care program that recognises and develops each girl’s unique strengths and qualities.”
Medical and Health Care Support
98. Given T’s condition, this is an important topic to cover.
99. H says that both D and he will be able to work from home to take care of the Children in Sydney.
100. ISIR reveals that the Children living in Australia will have access to a universal health system which provides free hospital treatment and free access to general practitioners. H will also have access to support groups for T’s condition.
101. H covered this topic quite extensively in his evidence:
a. T had access to “rapid and quality” care at the B Unit once he was assessed with a psychotic episode. He had a team of specialists, teachers, private room and outdoor space, and provision of regular updates with the personnel there on his progress. Should T have another regression episode, he will have quick access back to B Unit which has his medical history.
b. If and when T recovers from acute treatment, he can be managed by the Early Psychosis Intervention Service (“EPIS”) team in Sydney. According to the latest SIR, this service is a general care for adolescents up to the age of 25, and is a “specialised psychosis service, served with a multidisciplinary team such as psychiatrists, psychologists, social workers and occupational therapists.”
c. B Unit has also introduced the Walker Adolescent Unit Concord Centre, which is a long stay unit for young people aged 12-18 years of age who have complex mental illness problems. The Walker Centre has a school operating within to provide school learning support to adolescents.
102. H also submits that healthcare would be substantially more affordable in Australia than in Hong Kong. As T is a NZ citizen and an Australian Medicare Card holder, his treatment at B Unit, EPIS or Walker will be free. H plans to integrate public resources and private services to ensure T has the best of care.
103. Furthermore, H submits that the medical care in Australia is more affordable; this is important because there is a limit to what his medical insurance covers; and evidence shows that the W’s health care plan has a cap for mental health condition for herself and her two dependents at USD10,000.
Stepmother Support
104. H submits that D has confirmed her ability to provide support for the Children, that she has the experience in connecting with therapists who has previously assisted her in her own daughter’s situation. She is mindful of the Children’s needs to maintain their relationship with W, and spoke to how she had helped both T and C when they approached her when they were unhappy.
105. D came across as sensible and down to earth. I am of the view that she handled the cross examination well. She is grounded in accepting the upcoming challenges of supporting H, helping the Children through the transition of moving to Australia, and integrating them with her own children. She also said that the Children are known to her as they had lived together, and C had turned to her for emotional support at times.
106. The ISIR also speaks positively to the partnership between H and D, quoted at paragraph 68 above. I accept her evidence and am confident that she will provide the requisite care to the Children, keep them safe, and will provide W with information of the Children’s development.
Is the W’s opposition motivated by genuine concern for the future of the Children’s welfare or is it driven by some ulterior motive
107. I am of the view that W genuinely believes that T will fare better in her care. This is more apparent to me when she says that she is ready to consent to C moving to Australia with H. This also indicates that she does not query H’s (and D’s) ability to care for the Children in general.
108. I am of the view that there is no ulterior motive on W’s part in her opposition to the Relocation Application.
Will the granting of the Relocation Application be detrimental to the W and her future relationship with the Children
109. H has offered very generous access to W. On my request, he filed an undertaking to the Court after the Hearing which reflects his proposals with regard to financing return flights for W and the Children.
110. He offers the to pay for the Children’s visits to Hong Kong, 4 times a year. And should T not be able to visit Hong Kong, H will pay for W to fly in Australia to visit T in Australia.
111. H welcomes W to pay the Children ad hoc visits, and generous remote access with no restrictions. After all, at their age, there should not be any issue in W contacting them directly as and when she wants.
112. The offer on share of holidays is 2/3 of the holiday time to her, which is generous and clearly proposed with a view to allowing her more time with the Children, as they are not with her during term time.
113. In her oral evidence, she says she can work remotely for her work, which will give her a lot of flexibility to visit the Children.
114. There is no complaint nor evidence of obstruction of access before me.
115. I am therefore of the view that the relocation will not be detrimental to the relationship between them.
To what extent would that detriment be offset by extension of the child’s relationship with the paternal family
116. H’s family is in Sydney and New Zealand. Living in Australia will give the Children close proximity to them. The Children are keenly aware of and happy with this.
117. Furthermore, as the Children will be travelling to Hong Kong regularly, their contact with the maternal side of the family should not be compromised either.
What would be the impact on H on the refusal of his realistic proposal?
118. This is always an important issue to consider as the well-being of the carer is of great importance to his ability to take good care of the children. H has said that should relocation not be approved, he will remain in Hong Kong, which will negatively impact his relationship with D.
119. I feel that for H to remain here without D will give him a lot of stress and burden, as he will be without the support of someone who has stood by him in the past year of challenges. He will also have to face upcoming times by himself, while needing to maintain the on-going communication with W despite their divergence of views. The SWO makes the following observation in her last report:
“… the parents inevitably experience ongoing communication difficulties and soon held disputes regarding T’s care.”
120. I am therefore of the view that a refusal to the H’s Relocation Application with have a negative knock-on effect on the Children.
Other factors to consider
121. Having the Welfare Checklist in mind, there are several additional factors to be weighed in this decision, I will begin with the scenario in which the Relocation Application is denied.
Care and Control
122. H says he will stay in Hong Kong, so the shared care and control arrangement will be as status quo.
Schooling in Hong Kong
123. However, by the Schooling Report prepared by Dr H and filed by F, T cannot return to his existing school. With his condition, he cannot return to mainstream schooling. Neither is the JCSR School feasible, which is a special school that provides an English curriculum. There are also no other schools which can take T in with his condition. In short, there is just no schooling option in the horizon for T if he stays in Hong Kong.
124. W put forward some choices of schools in Hong Kong, which is the Aspire Program from the Autistic Partners in Hong Kong. According to the SIR, this is an “international agency that provides progressive Applied Behaviours Analysis services for young people suffering from Autism Spectrum Disorders”. I see nothing in evidence that Aspire Program has anything to do with people suffering from psychosis.
125. Further H has contended that he cannot afford for T to attend Aspire Program as this will cost $27,000 per month. W argues that this is a mere few thousand dollars compared to what H has been paying for. At the Hearing, W produces her breakdown of the amount she thought H pays for T’s school fees. According to her, this comes up to around $18,000 plus an estimate of $5,000 for ECAs. This was successfully challenged by H in her cross examination, she eventually accepts that the amount H pays for T is only $15,011 per month, which is much less than Aspire’s school fees at $27,000. I accept that H’s submission that the Aspire Program’s costs is much more expensive than what he used to pay. And more importantly, there is no clarity on how long T could be in the Aspire program, therefore H says the costs at Aspire Program will keep running indefinitely.
126. W then went on to say that after the Aspire program, T can be enrolled into ITS Tutorial School. The SIR says that “The ITS provides private tutor services in English for a comprehensive range of tertiary, secondary and primary school subjects for Hong Kong Students. ITS also specializes in individual or small group tuition for students.” W says this is customized and suitable for T. It came to light at cross examination that ITS is but a tutorial institution and not a school; and no evidence that it caters for special needs students.
127. When asked about post-secondary school plans, W mentioned a vocational centre in Sai Wan. This is new information and was never put forward by W as to what this is and how this is suitable for T.
Medical Care in Hong Kong
128. When asked about T’s treatment plans in Hong Kong, H’s affidavit states that T will either be institutionalized; or in the alternative, just released back to the community.
129. During cross examination, W did acknowledge that waiting time for T’s treatment in the Hong Kong public system will be long. When asked about what in-patient care will be available, W said that T would for sure be released. This came as a surprise, as this is the first time that this news came out at the Hearing, and certainly no evidence has been produced on this possible development. When asked what are the long-term care plans for T in Hong Kong, W says she would defer to the Dr H at QMH, and she quotes from her that Tai Lam Hospital (she probably means Siu Lam Hospital) and Castle Peak Hospital are options. Again, all new information and not heard of at all in these proceedings.
130. Recalling what the SWO says in her contact with Dr H, the doctor told the SWO that she has no concrete plans for T, but only that she is waiting for this court’s decision on relocation.
Issues raised by H in his Cross Examination of W
131. It is H’s case that W seems to have missed a number of “cues” from T’s behaviour after his return from Australia in February 2023 during the three alternating weeks when T was in her care, which should have caused her alarm. These are listed out in paragraphs 29 above.
132. H reiterates in his closing submission that the parties have been told that there will be potential long-term impact if T’s condition is not quickly dealt with. They have also been well advised by B Unit of the critical importance of immediate care and treatment, he says M displays a reluctance in acknowledging T’s regression and the need for urgent medical attention. I agree that this came across in her cross examination.
133. Furthermore, when H asked W about the medication that T is taking, she appears confused as to which medication deals with what condition. I find this alarming.
134. H also takes issue in his cross examination of W’s position in allowing C to go with her father to Australia without T. This means that the siblings will be split up in two countries. H questioned how that could possibly be in the interest of the Children. I have to agree, as it can be seen from the reports that the siblings are close and it is important that C is around to visit T and to keep his spirits up and he likes the attention.
Points raised by W in her Closing Submission
135. I disagree with W in that when T expressed his wishes for the Court to decide on relocation for him that it is a “tacit way of showing his change of preference without upsetting the parties.” In this regard, I have accepted abovementioned SWO’s observations and Dr H’s comment on T’s condition.
136. W has commented on D’s suitability as a carer. She places emphasis on the way D reacted during the August 2022 incident. She interpreted D’s query to T about his wish to return to Hong Kong then as “the irresistible inference” that D agreed T would be better cared for in Hong Kong by W. I do not agree with this interpretation. T’s behaviour in August 2022 is so out of character that it must have taken H and D by surprise. How they responded to it then was probably reactive as they were not aware that T was suffering from a psychotic episode. I do not think it appropriate for W to comment on D’s suitability based on that incident.
137. W also commented on the fact that D only visited T three times while he was hospitalized at B Unit. D explained that this was because H visits him daily and leave C in her care. W says that “It is clear that [D] felt she is unable to and should not be expected to take care of both Children.” I do not agree with W’s interpretation. Not do I agree with her comments that: [D] “fails to provide sufficient support and undermines H’s proper parental care and support which T may perceivably receive in Australia.”
138. I do not find any arguments in her closing submission persuasive nor assist me in the determination of this application. Some of these arguments, include complaining about H’s unawareness of T’s special needs from 2014; or that T has regressed further in Australia when H “left T on his own” and travel to Hong Kong to see C for Christmas; or that H was prone to changing the Children’s schedule citing a 2022 holiday access as example and the fact that the Children return from the August 2022 was delayed due to H contracting covid. Her arguments on the affordability and standard of healthcare are not accepted.
139. She then opines that there is no basis to assume T requires long term inpatient care, that T was stabilized and that there was no further discussion of long-term care plan as parents are awaiting T’s discharge. This assumption is also concerning, and she has not put forward any evidence on T’s prognosis.
Wishes of the Children
140. In the earlier SIRs, both Children have expressed that they want to relocate to Australia.
141. In the most recent report, C remains consistent; her wishes are best reflected in the SIR:
“54. C expressed a strong desire to study in Australia and enroll at P College, a local Sydney school. She was pleased with her life in Hong Kong, but believed she would be happier in Australia. Since returning to Hong Kong, she has maintained regular online communication with [D] and her children …. She did not express any concerns regarding her ability to tune in to the life in Australia. If granted relocation, she would miss Hong Kong, particularly her best friend in West Island School, her mother, Ms J and the dogs. In her family portrait, C drew the faces of her father (in the middle of the two faces), mother, and stepmother at equal size and level. Verbal, facial expression, and interactional data indicated that C had decided to relocate to Australia; her cautious disclosures indicated such determination was not easy when it also meant separation with her significant others.”
142. The 3rd SIR has this to say of T’s wishes:
“He disclosed to the Investigation Officer that he had previously considered continuing his education in Australia but at this point he was unable to choose his future. … Consequently, he desired the Court to decide for him.”
…
“At the end of the interview, he was asked again if he would follow the Court’s relocation decision by then. He was unable to confirm because his reply was preoccupied with “poking his eyes””.
143. When Ms C was crossed examined by W, she asked her whether T has retracted from his position of wanting to go to Australia, Ms C explained that T’s position is that he couldn’t make the decision himself.
144. When the SWO spoke to Dr H at QMH, she said that “T showed a pattern of anxiety about his future that was reflective of his disorganised way of thinking, and it was important to understand the stress and insecurity he felt.”
145. I make a decision to take both Children’s wishes into account, in particular that of T’s prior to his first episode psychosis.
Holistic assessment of what is in the best interest of the Children: the Balancing Exercise
146. I am of the view that the best interest of the Children is served by their relocation to Australia.
147. With regard to C, H in his closing submission says that W has not challenged his plans for schooling, medical support, and provision for psychologist; he also says that C’s wishes should carry significant weight. I agree. W has given specific consent to C’s relocation with H.
148. I am also of the view that H has done thorough research for T’s schooling, and is conscious of the various options that are open to T at differing stages of recovery. In contrast, W’s choices of schooling options are not schools, H challenges her research are not thorough and I agree.
149. In view of medical support, H says there are disparities in services in Hong Kong and Australia in terms of acute inpatient medical care services, outpatient support, and long term inpatient mental health options. I agree with H that the W’s case in terms of research and information are insufficient and unclear. H raises the issue of finances, and I also agree that the subsidies available to T in Australia are well resourced, as H can rely on the free public sector services, and focus his finances to support T with supplemental private services when needed.
150. It appears to me that the support available to T in Hong Kong pales in comparison in terms of options, scope, depth, flexibility, waiting time and costs to what are available in Australia.
151. Having looked at the respective parties’ case, the various reports, taking into account the Children’s wishes, and balancing all relevant factors; it is clear to me that this Relocation Application is to be granted.
Timing
152. What has caused me concern is the parties’ and the SWO evidence that Dr H at QMH is waiting for this decision before informing the parents of next steps.
153. Echoing the 3rd SIR, T’s mental health condition and his treatment needs are imminent; I therefore grant leave that the Children are to relocate to Australia at the earliest possible time. This is to enable T to commence treatment and rehabilitation soonest. I have reminded myself of what H had to do to prepare T for getting on a flight to return to Hong Kong back in February 2023, he had to take T out of B Unit on a progressive basis for T to adjust. No doubt both parents need to work closely with QMH and T’s various doctors to prepare him for his trip to Australia and what is to happen in between.
154. I also believe the sooner T is aware of this move, the better, as it should settle his mind instead of the uncertainties he is now facing.
W’s ask for Maintenance
155. I shall not be making any Order for maintenance for the Children. H will be bearing all the costs of living for them while in Australia. W has earning capacity and will be spending limited time with the Children and only during holidays; there is no reason why she cannot bear the costs of the Children when they spend their holidays with her, especially as air tickets will be provided for by H.
Orders
156. Leave is granted for the Petitioner to remove both Children to Sydney, Australia with immediate effect. They are to leave as soon as practicable.
157. The Order of HHJ Melloy dated 4 December 2014 is hereby varied to grant care and control of the Children to H, with reasonable access to W.
158. There shall be no Order as to Costs. This is a costs order nisi to be made absolute from 14 days hereof.
| (Thelma Kwan) | |
| District Judge |
Petitioner: Acting in person
Respondent: Acting in person
