FCMP 180 / 2017
[2018] HKFC 218
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FAMILY COURT
MISCELLANEOUS PROCEEDINGS NO. 180 of 2017
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| | IN THE MATTER OF R, EA, a girl born on the XX March 2011(“the Minor”) |
| | And |
| | IN THE MATTER OF Section 10(1) and 10(2) and Section 23 of the Guardianship of Minors Ordinance. Cap. 13 |
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| Between |
| | C, OKA | Applicant |
| and |
| | R, MTP | Respondent |
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| Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) |
| Dates of Hearing: | 21 – 24 August 2018 |
| Date of written closing submissions: | 14 September 2018 (Respondent’s submission received by the court on the 28 September 2018) |
| Date of written replies: | 20 and 21 September 2018 (Respondent’s submission received by the court on the 4 October 2018) |
| Date of Judgment: | 3 December 2018 |
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J U D G M E N T
(Relocation, custody, care and control and access)
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Introduction
1. There are two applications before the court that now require adjudication. The first in time is an originating summons dated the 13 September 2017 issued by the Applicant mother for custody and care and control of the minor child A. A was born on the XX March 2011 and is now 7 years of age. The mother also sought an order restraining the father from removing the child from the jurisdiction of Hong Kong. The non-removal order was granted on the 15 September 2017. On the 4 December 2017 the Respondent father also issued an application for leave to remove A permanently out of the jurisdiction of Hong Kong. Although the father is French he wishes to relocate with A to Japan.
2. This case concerns the long term arrangements for a child of unmarried parents. The mother is Hong Kong Chinese and the father is French. The child, who was born in France, is currently living with her father and has done so since April 2014. It is the father’s case that the mother is an alcoholic and that her behaviours have been a cause for considerable concern in the past. Consequently, the father has sought to put appropriate safeguards in place so as to ensure that any access that takes place, does so in a safe environment. The difficulty in part is that the mother originally gave an undertaking not to drink when she had access to the child and she subsequently broke that undertaking. There have also been issues with respect to supervision with no one being available from the mother’s side to supervise extended periods of access, or indeed to supervise access at all. There have also been concerns raised with respect to the veracity of blood and hair tests that were undertaken by the mother and the extent to which they can be relied upon by the court.
3. There are also other issues with respect to finances and immigration, with the father currently being in Hong Kong on a tourist visa only. Although the mother is working, the father is not able to work in a very regular capacity. Lack of finances has also meant that A was home schooled last year. I am told that she began studying at the Y International School in September. ;
The main issues
4. Given the above it seems that the main issues to be determined are as follows:
Should permission be given for A to leave Hong Kong in order to relocate to Japan with her Father?
How should the Mother’s application for sole custody and care and control be viewed?
In the event that permission is given what arrangements should be put in place for access?
What is in the best interests of A overall?
Background
5. It seems that the parties met in 2009/2010 over the internet, whilst the father was in France and the mother was in Hong Kong. They conducted a long distance relationship for a while and the mother then moved to Paris. A was born in Paris on the XX March 2011 and in or about August 2011 the parties moved to Hong Kong.
6. On the father’s case the mother started drinking to excess from about 2012 and the relationship deteriorated significantly thereafter as a result. He says that she was often violent when drunk and that the police were called by him in Hong Kong on more than 10 occasions during the period from 2012 – 2017 and once whilst the family was in Singapore. He says there were also incidences of shop lifting. He says that he tried to support the mother and to get her the help that she needed but that all of his efforts were in vain. His main concern now is that A should not be placed in a situation where there is any possibility that she might be put at risk.
7. The mother for her part says that the father is controlling and that he displayed narcissistic characteristics. She accuses him of emotional and physical abuse.
8. In any event in or about April 2014 there was an incident and without going into any of the details suffice it to say that the parties have lived separate and apart since that time. A has been cared for by the father since then. Initially this was with the assistance of a domestic helper that had been employed by the mother called P. Following the end of P’s contract, the father has cared for A on his own. A was also home schooled for the academic year 2017 – 18 and the father undertook this task also.
Background of the litigation
9. As indicated above this matter first came before the court in September 2017 and on the 15 September 2017 the court made an order preventing A’s removal from Hong Kong. On the 22 September 2017 the court made an order inter alia in the following terms:
AND UPON the Applicant undertaking not to consume alcohol when Minor, namely A, a girl, born on XX March 2011 (“the Minor”), is in her care.
…
7. The Applicant shall have interim defined access to the Minor as follows:
a. Every Monday and Thursday from 7 pm to 9pm;
b. Every Saturday from 10:30 am to 9 pm;
c. The respondent shall drop the Minor at the Tung Chung MTR station and pick her up at the Applicant’s apartment in Tung Chung;
d. Access to be supervised by either Mr X [the mother’s former boyfriend] or the Applicant’s mother, [the maternal grandmother] or access shall take place in a public place.
10. On the 13 November 2017 the matter returned to court. The father complained that the mother had breached her undertaking and that she had drunk alcohol whilst the child was in her care. The mother admitted to the same. Consequently, the court suspended the original order for access pending the receipt of the Social Welfare Report and ordered supervised access at the Parent and Child Contact Centre instead.
11. A Children’s Dispute Resolution hearing on the 5 January 2018 did not produce any favourable result and an order was made for further supervised access. It was also directed that the mother should have a hair test to determine whether or not she drank to excess.
12. Unfortunately, the parties were unable to reach consensus with respect to how the hair test should be conducted and on the 8 March 2018 I handed down a Memo as follows:
There are two issues here. Firstly, is the mother an alcoholic and can it be shown that she has abused alcohol historically and secondly is she currently abusing alcohol and is she presently a risk to her daughter when exercising her right to access.
Thus on the 5 January 2018 I directed inter alia that the mother have a hair test in Hong Kong to determine whether or not she drinks alcohol to excess. I did this because I have made similar directions in other cases when there have been issues of addiction and hair tests have been conducted in Hong Kong and reports have consequently been filed with the court. These are often conclusive one way or another. However, there is no court approved list of experts in this respect and the court very much relies on the parties themselves to make the appropriate enquiries and then the necessary arrangements in relation to the same.
Both parties have filed written submissions as directed by the court. In the Respondent father’s submission of the 26 January 2018 he states that there is no laboratory in Hong Kong that undertakes such tests for alcohol. I have no way of knowing if that is correct or not. In any event he proposes that the hair test be conducted by a laboratory in Europe called Eurofin and he asks that the protocol as set out in his exhibit 1 be followed. The total price for the analysis and report in English is Euro 504.
The mother for her part states inter alia that hair testing, PEth blood tests and urine tests for alcohol consumption are not available in Hong Kong. Again I have no way of knowing definitively if that is correct or not. She also says that these are not practical solutions in any event and she asks instead that she conduct a breathalyzer test both immediately before and after the access to her daughter and that this be overseen by the Social Welfare Officer with WhatsApp communication and photographs being used as confirmation that the breathalyzer has been taken etc etc. She also proposes a monthly blood (liver function) test. She suggests that this protocol be put in place for a three-month period whereupon the issue of access can be reviewed. On this premise she asks for unsupervised access to her daughter immediately and that this go hand in hand with the three-month period of testing identified.
It is of note that at the hearing on the 22 January 2018 the court reiterated to the Applicant that if she wished to formally review the issue of interim access then she would need to issue a summons with an affidavit in support. To date no such summons has been filed. Further the Social Welfare Officers are unlikely to take up the role identified by the mother in monitoring this arrangement.
On the 6 March the father filed an Answer to the mother’s proposal. In a nut shell he is very opposed to the protocol identified by the mother. Similarly, the mother filed her response on the 7 March and reiterated that I asked for the test to be done in Hong Kong. She maintains that her proposal is both more feasible and more practical. She also reiterates the need for a blood test to be carried out in parallel in the event that a hair test is ordered as she is concerned about possible contamination of the sample because of cosmetic procedures to the hair or humidity etc.
Direction
Having considered the proposals put forward by each side it is further directed that the mother have a hair test with Eurofin, the provider suggested by the father in accordance with the protocol identified at his exhibit 1 within the next 7 days. In the absence of a laboratory the hair should be cut by a pathologist or nurse in a surgery. A third party should be present when the mother’s hair is cut and the father may also be present to observe the same. I reiterate that the protocol identified must be followed. In addition, the mother shall have a blood test (liver function) also within the next 7 days. The cost for both shall be split between the parties equally. Once the report has been received from Eurofin and the blood test result received further consideration may be given to whether or not the protocol suggested by the mother, or indeed any other options need to be considered when looking at the issue of access overall.
13. Unfortunately, although a hair test and blood test have been produced the protocol with respect to the hair test was not followed as the father was not present when the mother’s hair was cut. No other third party was identified. In so far as the blood test was concerned initially no explanation was produced with respect to its findings. When the mother obtained clarification from another Dr, that Dr could not confirm that the blood sample was originally from the mother. Consequently, although both tests appear to show that the mother does not drink to excess, it is not possible for the court to attach very much weight to these tests.
14. In addition, the parties have also been embroiled in a financial dispute and on the 29 March 2018 there was a hearing for interim maintenance for A. At the end of the day I ordered that the mother pay the father interim maintenance of HK$8,000 per month. Further, I directed as follows:
2. Order 3(b) contained in the court order dated the 5 January 2018 shall be varied to the extent that the Applicant shall have weekly supervised access to the minor child A, at the offices of the Social Welfare Department in addition to the access at the Parent and Child Contact Centre referred to in paragraph 3(a) of the same order. In addition, the Applicant shall have remote access to A on the days that she does not have direct access by either telephone, skype or Facetime. In the absence of any agreement to the contrary this access shall place at 7:00 pm for approximately 10 minutes.
15. An attempt was then made to move towards a form of unsupervised access and on the 22 June 2018 I made a further order as follows:
1. Upon the production of a clean breathalyzer test, order 3(a)- (c) contained in the Court order dated the 5th January 2018 shall be varied to be extent that the Applicant shall have unsupervised access to the minor child, namely, A, a girl born on the XX March 2011 on:
a) Monday from 7 p.m. – 9 p.m.;
b) Thursday from 7 p.m. – 9 p.m.;
c) Sunday from 10 a.m. – 5 p.m.
16. This was followed by a further order on the 31 July 2018:
IT IS DIRECTED that:-
1. The Applicant shall produce a clear breathalyzer test at the beginning and at the end of the short periods of access inter alia from 7 p.m. – 9 p.m. on Monday and Thursday and 3 clean breathalyzer tests on a full day of access:
a) prior to access commencing;
b) at 2 p.m. and
c) at the end of the access period.
17. It is of note that the father says that the mother breached her undertaking and that she drank some alcohol during access with A in July 2018. Hence, the request by the father for additional safeguards from the court, which were granted.
The open proposals and each party’s case
18. Each party filed open proposals prior to the beginning of the trial as follows:
The Father’s case
a) The father made a detailed proposal as follows:
Open proposal
Custody
I propose the shared custody as long as the applicant.
Care and control
I propose to get the care and control of our daughter until the moment A will be able to choose by herself differently if she wants to.
[Financial support
I propose to have shared financial support between the applicant and me].
Access
If my relocation is approved
1) If the applicant agreed to acknowledge her addiction and is following a therapy regarding her addiction
a. If the applicant is visiting me where I live:
i. I propose 1 week-end per month on staying access
ii. We can arrange additional week-days evening according to the applicant schedule
iii. We can arrange shared vacations
iv. The applicant will use the breath test before and after the visit (and more frequently when it’s a staying access) for me to ensure the applicant didn’t drink alcohol while being with our daughter.
b. If I have to travel back to Hong Kong
i. I propose 1 week-end per month on staying access
ii. We can arrange on shared vacations.
iii. We need to share the cost to such travel as we will have (both) to travel and I will have to find an accommodation while our daughter is with her mother
iv. The applicant will use the breath test before and after the visit (and more frequently when it’s a staying access) for me to ensure the applicant didn’t drink alcohol while being with our daughter.
2) If the applicant disagreed to acknowledge on her addiction
a. If the applicant is coming where I live
i. I propose 2 days access (no staying access) per month during week-end with supervised access by me.
ii. We can discuss about additional days and celebration days during the year where I could supervise the applicant
b. If I have to come back in Hong Kong
i. I propose 2 days access per month during week-end with supervised access by me
ii. We can discuss about additional days and celebration days during the year where I could supervise the applicant
iii. We need to share the cost of such travel as we will have (both) to travel and I will have to find an accommodation while our daughter is with her mother
If my relocation is not approved
1) If the applicant agreed to acknowledge her addiction and is following a therapy regarding her addiction
i. I propose 1 week-end staying access
ii. I propose 2 evenings per week
iii. We can discuss on shared vacations and celebration days.
2) If the applicant disagreed to acknowledge on her addiction
i. I propose 1 week-end (2 days, no staying access) per week supervised access by me
ii. I propose 2 additional days per week for supervised dinner
iii. We can discuss about additional days per month and celebrations during the year where I could supervise the applicant
Additional request for any of the options above:
- If I have confirmation the applicant got drunk while being with our daughter, I have the right to stop the staying access and I will refer the problem and the facts to the appointed therapist.
- Our daughter is wearing her phone watch in order for her or me to stay in contact and the applicant agrees to recharge the watch once a day to ensure the good operation of the watch.
- If I have to go back to Hong Kong for the day access or staying access, I need the applicant to share the cost of the expenses.
Additional proposals:
As I said for long time now, as soon as the applicant will have truly fixed her addiction, I have no objection for our daughter could spend more time with her. The applicant might not be able to play, educate and entertain our daughter as well as our daughter would and as it should be but at least the applicant will not make our daughter experiencing terrible dangerous situations like before.
I don’t have the privilege of the parenting but I have the endless and irrefutable duty to ensure our daughter will be in safe family environment and to ensure her have a proper parental education and academic education and, of course, to have happy in a very modern and safe country.
The Mother’s case
b) The mother for her part proposed as follows:
Open proposal for custody, care and control
The overwhelming basis of the Respondent’s case against me is that I am an alcoholic. This goes to the very heart of this case – the Respondent bases his entire argument for taking custody and care and control on his assertion that I have an alcohol addiction. I provided blood test and hair test reports willingly to prove that I am not an alcoholic, then there is de facto no case to give full custody, care and control to the Respondent, which should instead ideally be shared (referred in my original affirmation paragraphs 24-28), or given solely to me in the light of the Respondent’s refusal and inability to discuss or mutually agree anything.
1) If the Applicant has sole custody, care and control
My request for sole custody and care and control is purely based on the Respondent’s evidenced inability to discuss and agree anything in a normal, discursive and rational manner. I remain open to shared parenting if the Court believes that they can facilitate such an outcome.
I am willing to facilitate the Respondent’s access to A to give him generous time with A every alternate weekend (inclusive of overnight access), and 2 evenings during the weekdays. I will also facilitate telephone calls the Respondent may want to have with A on a daily basis. I appreciate that A has been living with the Respondent for 3 years now, and may want to spend more time with her father when she starts living with me even if only during initial stage. I am happy to defer to any expert opinion as to how best to make the transition as smooth and conformable as possible for A, should be helpful.
I am willing to discuss with the Respondent on the arrangement for public holidays, festival seasons and school term breaks.
I would request the Respondent to provide financial support.
2) If the Respondent’s relocation plan is granted with sole care and control, and joint custody
I humbly request to have as much access as I could for the mother-child bonding, especially after the past difficult years for me to have access to A.
The Respondent brings A back to HK ideally once a month for at least over the weekend. A stays with me overnight without supervision. (I could provide breathalyzer test results for some period of time as it is proved that I do not drink to excess.)
The Respondent brings A back to HK for public holidays, festival seasons and school term breaks.
The Respondent bears most of the cost as his business brings him favourable income.
3) If no relocation is granted, joint custody, care and control could be facilitated by court.
A could spend time equally with the father and mother (alternative week inclusive of weekend). Arrangement for public holidays, festive seasons and school term breaks to be discussed).
Cost sharing could be discussed.
Each party maintained this basic position post trial.
The Law
Relocation
19. In Hong Kong we continue to follow the guidance provided by the English authorities and in particular by both Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053. This was originally confirmed by the Court of Appeal in Hong Kong in the case known as SMM v TWM CACV 209 of 2009. The correct approach to be taken was recently reviewed by the Court of Appeal when handing down a leave to appeal judgment in ZJ and XWN, CAMP 67/2018 [2018] HKCA 436, currently unreported. In that judgment J Lam, JA reiterated that the comments made by Cheung JA in SMM v TWM, should be read in the light of the recent developments in the United Kingdom, namely the best interests of the child are paramount and any other protocols designed to assist in coming to a decision in that respect are to be regarded as guidance only.
20. Consequently, it might be helpful to repeat the actual and most often quoted passage from Lord Justice Thorpe who said in Payne as follows:
(40). … To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s [her the father’s] proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:
i. Pose the question: is the mother’s [father’s] application genuine in the sense that it is not motivated by some selfish desire to exclude the father [mother] from the child’s life. Then ask is the mother’s [father’s] application realistic, by which I mean, founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
; ii. If however the application passes these tests then there must be a careful appraisal of the father’s [mother’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 [her] and his [her] 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 [paternal] family and homeland?
; iii. What would be the impact on the mother, [father] either as the single parent or as a new wife, [husband] of a refusal of her realistic proposal?
; iv. The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”
21. In addition, reference should then be made to another very useful case coming out of the United Kingdom is MK v CK [2011] EWCA Civ 793. In that case, Lady Justice Black, as she then was, said as follows:
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.
22. In ZJ and XWN, Johnson JA added that
18. It is clear from K v K thatthe only principle of law enunciated in Payne is that the welfare of the child (or presently in Hong Kong, best interests of the child) is paramount; the rest is guidance. This is how the comments of Cheung JA in SMM v TWM (based on Payne) should be read.
23. With respect I agree. To reiterate then, the one and only authentic legal principle that I need be concerned with, is that the best interests of A, remain the court’s paramount concern. I will though largely rely on the guidance provided by Payne in coming to a decision on the issue of relocation.
Custody, care and control and access
24. In so far as the law on children’s matters generally is concerned, reference should be made to the principles set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which says that:
GENERAL PRINCIPLES
(1) ; In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) ; in any proceedings before any court (whether or not a court as defined in section 2) the court -
(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;
Discussion
25. I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing. I have also heard from the Social Welfare Officer, Mr L and from the Clinical Psychologist, Miss A, together with two former domestic helpers who appeared in court on behalf of the father. Although the mother’s former boyfriend filed an affidavit on her behalf he did not appear in court.
Social Welfare Reports
26. Recommendations made to the court in social welfare reports, although not binding are very persuasive. If the court decides not to follow the recommendations made, then reasons must be given.
27. In this instance the Social Welfare officer filed two reports dated the 30 November 2017 and the 27 February 2018. He also filed a short clarifying Memo dated the 18 December 2017. The first report was mainly concerned with custody and care and control and access, whereas second report concentrated on the father’s relocation application. In summary Mr L recommended joint custody with care and control to the father. He also supported the father’s relocation application subject to a couple of caveats concerning the father’s financial situation. In all three documents he reiterated that longer term unsupervised access must be the goal of both parents. As will be seen in broad terms I accept the recommendations made by Mr L.
28. It is of note that Mr L confirmed in the witness box what was stated in his first report i.e. that the mother had not agreed that he should be able to contact social workers and organisations who had apparently assisted the mother in the past with her alleged drinking problem. Nor had the mother consented to him contacting A’s former kindergarten teachers. However, the father was able to provide Mr L with a copy of a letter from the Hong Kong Christian Service dated the 26 January 2015 seemingly trying to chase the mother up re an appointment. In summary Mr L said as follows:
9. Madam C [the mother] said that she was a social drinker since working. She maintained that she was not an alcoholic as alleged by Mr R [the father]. She only admitted that she drank more in 2013 and 2014 to cope with the stress arising from her relationship problem with Mr R and received counselling service from Ms U, the Clinical Psychologist of HKCS. According to the written report of Ms U [copy given by Mr R], Madam C was referred by the social worker from Family Networks: Yau Tsim Integrated Family Service Centre [YTIFSC] of HKCS for psychological assessment and treatment of her alcohol use problem. She was first seen by Ms U in April 2013 and last seen in January 2014. She was diagnosed to have Alcohol Dependence. She developed maladaptive coping of drinking alcohol to cope with her stresses and negative emotions. She received treatment for reducing her alcohol dependence. Her drinking problem improved for a certain period. Yet she increased her alcohol consumption as her relationship problem with Mr R deteriorated. As she appeared to have disengaged from the service, her case on the part of Ms U was closed in October 2014. In addition, though Mr R said that she had received service from the Alcoholic Anonymous Hong Kong, Madam C said that she had not. Instead, she approached the Alcoholic Treatment Project of Tung Wah Group of Hospitals [ATP of TWGHs] for service before.
10. Madam C was once charged by the Police for shoplifting but was acquitted in 2015. Though Mr R said that she committed another offence of shoplifting and was fined in 2016, she said that there was no such case.
29. With respect this neatly encapsulates the issues in this case. The father’s concerns about the mother’s alleged alcoholism and the potential risk that she poses to A and the mother’s complete denial of the same.
Clinical Psychologist report
30. Miss A filed a report dated the 22 September 2017. She was tasked with preparing a report on each of the parent’s caretaking capability together with their relationship with the child. Her report was couched in general terms and she concluded as follows:
CONCLUSION & RECOMMENDATIONS
57. A has a normal psychosocial profile with positive relationship and close bondage with both her parents. Albeit the parents differ in their parenting philosophy and approaches, their differences could complement each other, in that the child can have both their direction and the space to explore on her own.
58. Based on the very inconsistent information on the mother’s drinking pattern provided by the two parents as well as the lack of direct collateral information from helping professionals of Hong Kong Christian Service, there is no way for the Psychologist to estimate to what extent the father’s description of her alcoholism was valid. However, the mother did cite in her affirmation a few episodes from late 2014 to June 2017, in which she had taken wine due to different reasons. A it is understandable that ongoing access disputes could be extremely stress-inducing to all parties involved, alcohol intake cannot and should never be regarded as a solution to stabilize one’s psychological condition. While the mother considers that she should depend on herself instead of seeking service from helping professionals, she needs to be more determined to resort to more functional coping mechanisms that she has been using, e.g. practicing yoga and seeking social support.
59. The Psychologist is concerned about A’s apparent anxiety in the assessment and her reticence when she was asked about her interaction with either parent. She also seemed to be preoccupied with her assumed need to provide information that the judge should know, including her wish to go to Taiwan with her father and P the previous domestic maid (who appeared to be a very important attachment figure for her). Having a close bondage with both parents, it may be easy for her to become overly sensitive to the year long tension between them, ongoing complications in the access arrangement, and /or the context of this assessment. Such sensitivity, if persisting, could make her feel worried about the relationship between her parents and suffer from loyalty conflict, which might increase the risk of emotional disturbance in future.
60. It deserves notice that A repeatedly mentioned the mother’s drinking throughout the sessions, as if she was very conscious of or determined to impress the Psychologist that the mother had a severe drinking problem. She stated for more than once that related incidents occurred when she was little or she learned about these from pictures (to the judge). It seems that she might have obtained such information from other sources apart from her own experiences. In view of A’s very young age, it is opined that parents should tried their best to prevent her from involving too much in adult issues and having access to information of previous or existing family problems / parental disputes.
61. The father and mother are common in presenting to be concerned about A’s Psychosocial well-being. Therefore, it would be beneficial to the child if they could be more careful in handling their conflicts, in order to prevent these from interfering with their childcare arrangement. With a smoother relationship and more dedication to follow a well-defined and structured childcare plan, the parents might have greater potentials to co-operate with each other and facilitate the child to have well-balanced development in the long run.
31. When questioned by the father, Ms A, confirmed that if what A said to Ms A about her memory of her mother’s alleged drinking and past behaviours was true, then in her opinion this would impinge on the mother’s capacity to take care of the child.
Should permission be given for A to leave Hong Kong in order to relocate to Japan with her Father?
Is the application genuine in the sense that it is not motivated by some selfish desire to exclude A from the Mother’s life?
32. I accept that the father’s application is genuine and that it is not motivated by a desire to simply exclude A from the mother’s life. Had the father wished to do that, then it would have been more easily achieved by an application to relocate to France. The father has not done so, in part because it will be easier for A to continue to have contact with her mother if he remains in Asia.
33. I also accept that it is very difficult for the father to remain in Hong Kong on a long term basis given that he is in Hong Kong on a tourist visa only. This was challenged by the mother when the father was in the witness box. She suggested to the father that it was his choice not to obtain a job in Hong Kong with a work visa. However, I accept that it would be difficult for the father to obtain suitable employment, given that he is over 50 years old and a French speaker with no work experience in Hong Kong. He does not speak either Cantonese or Mandarin and he sometimes struggles a little in English.
Is the Father’s plan realistic, i.e. founded on practical proposals both well researched and investigated?
34. The father said there were three options – either he relocated back to France, or he relocated to Taiwan first (where the cost of living is cheaper) and then to Japan, or he went straight to Japan. He said that these options had been fully discussed with the mother in the past. He decided against France in the end, mainly because it was too far away. Consequently, the original plan had been to relocate first to Taiwan and then to Japan. However, his plans to leave in 2017 had been thwarted by the mother’s application to prevent A’s removal from the jurisdiction of Hong Kong. Given the delay caused by these proceedings he now wishes to proceed directly to Japan. He explained that he thought that the business model that he had developed, which was concerned with the virtual tours of property in the real estate market, stood a better chance of success in Japan where the real estate market was more competitive than in Hong Kong. He also has a business partner in Japan and he is hopeful that his business will do well there. It has not been possible to develop his project in Hong Kong given the over saturation of the property market.
35. Financially things have been very tough for the father over the past year or so and at one point he was evicted from the flat that he shared with A. But things have now improved and he has recently sold a share of two properties in France and he was able to produce copies of bank statements showing Euro 126,370 in one bank account and Euro 40,708 in another, plus over HK$128,000 in a Hong Kong bank account. He is expecting further funds once his divorce from his wife in France is finalized. He said, and I accept this to be the case, that he did not have sufficient funds to apply for an “Investment as Entrepreneur” visa in Hong Kong. He said that he would need HK$3 million in order to successfully make such an application.
36. However, on the father’s case it would be much easier and cheaper for him to obtain a work visa in Japan. He said that there were two options including what is known as a “startup business investment visa”. He said that he would either have to employ two people or pay the Japanese Government HK$300,000. In either event working in Japan was a feasible possibility.
37. The father has also enrolled A into the Y International School in Tokyo. He said that it was his intention to live reasonably close to the school and he provided copies of possible rental flats in his affidavit. In addition, he confirmed that it was his intention to arrange for his elder daughter by his former marriage to join them in Tokyo and that he intended to rehire the parties’ former domestic helper, P. P confirmed in the witness box that she is ready and willing to work for the father and A in Japan.
38. I accept therefore, that although the father’s plan seems a little odd at first sight, that it is both practical and well researched and investigated.
Is the Mother’s opposition motivated by genuine concern for the future of A’s welfare or is it driven by some ulterior motive?
39. I also accept that the mother’s opposition is genuine. She believes that it would be less disruptive and less risky if A continued to reside in Hong Kong. In her closing submission she said as follows:
Taking our daughter to a new country, with a new language and a new culture will be too much for our daughter to absorb. If this was backed up by guaranteed financial stability and a familiarity with Japan and its culture, then I could be more understanding. However, I can only foresee disruption, confusion and anxiety for my daughter in Japan.
40. In that respect it is of note that the father speaks to A mainly in French and that the mother communicates with her in English. Although A is half Chinese and she lives in Hong Kong she only has fairly limited Chinese capability.
41. I also accept that given that access is still problematic that the mother’s concerns about facilitating access, if there is further distance between the parties, is understandable.
What would be the extent of the detriment to the Mother and her future relationship with A were the application granted?
42. It seems to me that there is a risk that the relocation could be extremely detrimental to the mother’s future relationship with A, unless the access issue is resolved satisfactorily. The father acknowledged in the witness box that this was a real problem.
To what extent would any possible detriment be offset by extension of the children’s relationships with the paternal family and homeland?
43. This is not really a relevant consideration given that the father does not intend to relocate back to France. It is of note however that the father intends that his elder daughter should live with them in Japan and that P, the former domestic helper, will also be re employed by him. As pointed out by Ms A, P appears to be a significant attachment figure for A. Consequently, it seems to me that the involvement of both of these people in A’s life going forward would be a positive thing.
What would be the impact on the Father of a refusal of his realistic proposal?
44. The father is the primary care taking parent and has been so since April 2014. It would be unthinkable for A to be removed entirely from his care without there being a significant impact on A.
45. All in all I accept that the father would be completely devastated if his application was refused outright and that practically he would be left with almost no way of supporting himself and A in the medium to longer term.
Conclusion
46. In such circumstances it seems to me that the father’s application to relocate should be supported in the longer term, but that attempts should also be made to get access back on a more stable footing prior to the relocation taking place.
How should the Mother’s application for sole custody and care and control be viewed?
47. Given that the relocation will be permitted it follows that the father shall have care and control of A. The parties are also agreed that they shall have joint custody of her – as recommended by the Social Welfare Officer. Thus the main outstanding issue concerns access.
The character of the parties
48. In any trial concerning the practical arrangements for a child, it is incumbent upon the trial judge to see the parents in the witness box, so that she [or he] is able to form a view of them for herself. This case was no exception.
The father
49. The father impressed me as being both bright and resourceful. I have no doubt at all that he found the trial both alien and difficult to cope with. He was also very sad at times as he struggled to come to terms with everything that had come to pass over the last little while. I have no doubt at all that he is a very good father to both of his daughters and that in the context of this case that he has a close bond with A. Although he did not expect to become the primary caretaking parent of A, it is clear that he has been able perform that task well. He is naturally concerned about A’s safety and wishes appropriate safeguards to be put in place for when she has access with the mother. There was no evidence to suggest that he was guilty of the things that the mother had charged him with i.e. that he has a narcissistic personality or is overly controlling. It is clear that there were occasions where there had been some physical altercations between the parties in the past, but there was no evidence to support the mother’s case that he was abusive.
The mother
50. The mother also struck me as being bright with a good command of the English language. She is attractive and she presented well. She accepted that she had not taken her original undertaking seriously and asks to be given a further chance. Although the mother originally requested either sole care and control or shared care, at no point did she set out how she would arrange her life practically if she were to take on that role. She currently works full time and the maternal grandmother likewise works full time. Although the maternal grandmother told the social welfare officer that she would be able to assist her daughter in caring for A, she has not made herself available to assist with the supervision of access and it is not clear how that would work in practice.
51. I have no doubt that the mother loves A very much and that she wishes to play a significant role in her daughter’s life going forward. This is to be encouraged. However suitable safeguards will need to remain in place, certainly in the short to medium term, to ensure that this is done appropriately. If there are no difficulties in this respect, then those safeguards can be reduced over time.
In the event that permission is given what arrangements should be put in place for access?
The allegations of the mother’s alcoholism
52. Having reviewed all of the evidence, including the affidavits of Ms AFN and Ms ADT, and the photographic evidence, which was very compelling, I accept that on the face of it all of the evidence supports the father’s contention that the mother had an alcohol problem previously. I largely found that the father’s evidence came up to proof and I share his concerns about the veracity of the hair and alcohol test. As indicated above it seems to me that given the circumstances it is not possible for me to attach very much weight to those reports.
53. It is not clear to what extent the mother is still relying on alcohol, if at all and whether or not that remains a significant problem in her life. It goes without saying that if she breaches her undertaking not to drink when A is in her care, that access will once again be suspended. I also wish to make it very clear. The mother has undertaken not to drink alcohol at all when A is in her care. Reference is made to her being a social drinker and to her wish to drink socially and not to excess. It is a matter for the mother what she does when A is not in her care, however she must not drink alcohol at all when A is with her.
54. The difficulty then is how to move access forward both in the short to medium term and how to ensure that access takes place regularly once the father and A have relocated.
Decision
55. I will therefore give leave for A to relocate to Japan with the Respondent father with effect from not before the second week of the Easter school holiday. For the avoidance of doubt the father can relocate from the 21 April 2019.
Term time access
56. The mother shall continue to have access to A as set out in the court orders dated the 22 June and 31 July 2018 save that overnight access shall be introduced gradually. Between now and the Christmas school holiday the mother shall have overnight staying access on one Saturday night from 5:00 pm on Saturday until Sunday at 5:00 pm. This shall take place on Saturday 8 December 2018.
57. The mother shall produce a clear breathalyzer test prior to access commencing on Saturday and at 9 am on Sunday morning, together with the regular breathalyzers at 2:00 pm and at the end of the access period.
School Christmas holiday
58. The Christmas holidays shall be split equally between the parties with the father having the first half of the holiday and the mother having the second half of the holiday. The mother shall have day access from 10 am – 5:00 pm save for one overnight. In the absence of any other agreement between the parties the mother’s half of the holiday shall run from Saturday 29 December – Friday 4 January 2019 and the overnight shall be on Saturday 29 December at 10 am until Sunday 30 December at 5:00 pm. The mother shall produce breathalyzer test results as set out in paragraph 57 above for the overnight access and generally as set out in the court orders dated the 22 June and 31 July otherwise.
School Chinese New Year holiday
59. The Chinese New Year school holiday shall also be split equally between the parties with the mother having the first half of the holiday and the father having the second half. For the avoidance of doubt, and in the absence of any other agreement between the parties the mother’s half shall be from the 2 – 7 February 2019. As before the mother shall have day access, save for two overnights to be agreed between the parties. In the absence of any agreement the two overnights shall be from 5:00 pm on Monday 4th February to Wednesday 6th February at 5:00 pm. As before the mother shall provide breathalyzer test results before the access takes place and at 9 am, 2:00 pm, 9:00 pm on Tuesday and at 9:00 am, 2:00 pm and at the end of the access period on the Wednesday.
Easter school holiday
60. The Easter school holiday shall also be split equally with the mother having the first half from the 13th – 20th April 2019. As with the Chinese New Year holiday the mother shall have day access save for two overnights with breathalyzer’s being produced as before. In the absence of any agreement between the parties, the mother shall have two overnights on the 12 and 13 April i.e. from 5:00 pm on Friday 12 April to Sunday at 5:00 pm.
Term time access – Spring term
61. Term time access shall continue as before on Monday’s, Thursday’s and with overnight staying access from 5:00 pm on Saturday until Sunday at 5:00 pm on the following dates:
Saturday 12 January 2019
Saturday 19 January 2019
Saturday 26 January 2019
Saturday 16 February and thereafter every Saturday until the start of the Easter holidays.
Access post relocation
62. Once the relocation has taken place the mother shall continue to have remote access by telephone, Skype or Facetime every Monday and Thursday evening commencing at a time to be agreed between the parties. In addition, during term time weekend access shall take place once per month, on the first weekend of the month unless by agreement between the parties. The parties shall take it in turns to travel, with the mother visiting Japan in the first instance in the month of May and the father visiting Hong Kong with A in the month of June. The mother shall have remote access on Sunday’s on the weekends that she does not have direct access. Each party shall be responsible for their own costs associated with facilitating the access arrangements. The mother shall continue to provide breathalyzer tests during the access period, which will be from either Friday evening or Saturday morning until Sunday evening at 5:00 pm.
What is in the best interests of A overall?
63. Overall it seems to me that it must be in A’s best interests to relocate to Japan, where hopefully the father will be able to start afresh and to provide financially for both her and her older half sister. I also accept that it must be in A’s best interests to have a warm and loving relationship with her mother and that this can only be facilitated if she has regular contact with her.
Further directions
64. There shall be a further call over with respect to the access arrangements going forward on the 4 June 2019 at 9:30 am. Both parties do personally attend that hearing.
Costs
65. Given that this is a children’s matter, I shall make an order nisi to be made absolute in 14 days time that there shall be no order as to costs, including all costs reserved since the beginning of the proceedings.
66. It is further directed that the parties appoint a Parental Co ordinator to assist them inter alia with the practical arrangements for organizing access going forward. In addition, it is directed that the mother ensures that A’s watch is charged and operable when A is in her care. Further the father shall obtain for a mirror order in Japan. There shall be liberty to apply.
| | (Sharon D. MELLOY) |
| | District Judge
|
The Applicant appeared in person
The Respondent appeared in person