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CACV 18/2018
[2019] HKCA 822
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 18 OF 2018
(ON APPEAL FROM FCMC NO. 612 OF 2015)
________________________
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BETWEEN
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B, A
also known as AB
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Petitioner
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and
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B, L
also known as LB
also known as LZ
also known as LZB
also known as LZC
also known as ZCL |
Respondent
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________________________
| Before: |
Hon Cheung, Yuen and Barma JJA in Court |
| Date of Hearing: |
25 June 2019 |
| Date of Judgment: |
25 June 2019 |
| Date of Reasons for Judgment: |
25 July 2019 |
________________________
REASONS FOR JUDGMENT
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Hon Cheung JA :
I. Our decision
1.1 On 28 September 2017, H H Judge Melloy granted permission to the respondent mother (‘the Mother’) to remove the two children of the family out of the jurisdiction of Hong Kong in order to relocate with them to a place known as H, near Miami, Florida, USA (‘Miami’). The children, both girls, were aged 7 and 5 years old at the time of the order.
1.2 Pursuant to leave granted by the Judge the petitioner father (‘the Father’) appealed. He also sought leave to adduce new evidence for the appeal (‘the new evidence application’). We allowed the new evidence application and the appeal. I now give reasons for our judgment.
II) Background of the case
1) The family
2.1 The following background of the case is extracted from the judgment below.
2.2 The Mother is Columbian by birth, but emigrated to the USA with her family in 1999. The Father is a US national. He was born and grew up in California, USA and he and his brother were largely raised by his father and his step mother. The parties met in late 2004 and married on 26 September 2005 in New York which was where they were both living at that time. In 2008/09 they relocated to Hong Kong in search of better career prospects. The Father obtained a job here initially as a native‑speaking English teacher. Consequently, he was granted a work visa and the Mother came shortly thereafter as his dependent.
2.3 At the time of the hearing below in July 2017, the Father worked as a secondary school teacher and he also taught part time at university and as a part time tutor. He was studying for his doctorate degree part time. He holds a permanent Hong Kong identity card. The children also hold US passports. The Father was 40 years of age at the time of the hearing. Despite some earlier dispute, it is confirmed that the Mother is a permanent resident of Hong Kong. She also holds a Columbian passport and in addition she holds an American green card, which enables her to live and work in the USA. The Mother said that she regards the USA as her home and that she has only been back to Columbia once since she left in 1999. The Mother was 36 years of age at the time of the hearing. The parties’ marriage had effectively broken down by the time the second child was born and they did not have sexual relations at all from that time onwards. Sexual relations during the marriage were also fairly minimal.
2.4 In May 2014, the Mother unlawfully removed the children to Miami. The elder child then was 4 years old and the younger child 20 months old. The Father successfully applied under the Hague Convention for the return of the children and they came back to Hong Kong in August 2014. The Mother then lodged her relocation application in May 2016.
2.5 There was a dispute between the parties concerning who was historically the primary caretaking parent. The Mother maintained that she was the primary carer of the children during their infancy and in the period prior to their unlawful removal. The Judge was told, although again this is disputed, that she cared for the elder child full time after her birth. The Mother said that she continued in this role after the second child was born. It seems to be accepted that a full time domestic helper was employed shortly before the second child’s birth. The Mother did not work during this period save for some part time odd jobs such as face painting at children’s parties etc. She was also studying on and off for her undergraduate degree in psychology at the Hong Kong campus of the Upper Iowa University.
2.6 The Father for his part maintained that the Mother became more and more detached from home life and that he took on the role of the primary carer of the children with the assistance of the domestic helper. There is no dispute that the Father was the main breadwinner during this period.
2.7 The Mother was unable to immediately return to Hong Kong following the order for the children’s return and consequently the Father took up the role of being the children’s primary carer from that time on. The children returned to the former matrimonial home with the Father and were cared for by him with the assistance of the same domestic helper. Although the Mother returned to Hong Kong in December 2014, i.e. about four months later, money was very tight and she was unable to rent a property suitable for the children and her to live. Consequently, although the Mother had been in and out of Hong Kong on a frequent basis and had spent a lot of time with the children when she was here she had been unable to take up her original role, on her case, of looking after the children on a more or less full time basis.
2.8 It is accepted by the Father that the Mother has been in Hong Kong on the following dates :
(1) December 2014 - December 2015 (a period of about a year);
(2) 9 January 2016 - 30 July 2016 (a period of about 7 months);
(3) 18 September 2016 - 27 October 2016 (a period of about 6 weeks. The Mother was accompanied on this trip by the maternal grandmother);
(4) December 2016 - 4 January 2017; and
(5) In addition, the Mother was in Hong Kong for the hearing below held on 25 to 27 July 2017.
2.9 During the intervening periods the Mother based herself mainly in Miami. She also completed her degree in Developmental Psychology and undertook an internship. Just prior to the hearing below she secured a full time job as a Clinical Director with an organisation called Kids Therapy Services Inc. The Father worked in Hong Kong as a full time secondary school teacher.
2) The Mother’s case
2.10 It is the Mother’s case that most of her family now live in the United States and both her mother and step father and twin sister live in Miami. Her application for relocation of the children was on the basis that she wished to return to Miami with the children where she had the support of close family and friends. She had a full time job in Miami and she could support the children financially. She intended initially to live with her mother and step father. She pointed out that the children as US citizens will be entitled to free education. She had also arranged medical coverage for them. She would not return to Hong Kong to live in the event that her application is denied. She described the last few years as a living nightmare which the Judge accepted.
3) The Father’s case
2.11 The Father’s case was that the children should remain in Hong Kong under his primary care and that the existing state of affairs should be retained. The children were settled, in good schools and they had a wide circle of friends and a lot of social support.
4) The Reports
2.12 The Judge also called for Social Investigation Reports (‘SI Reports’) from the Hong Kong Social Welfare Department and an International Social Welfare report (‘ISW report’). The SI Reports recommended that the two children should stay in Hong Kong with the Father while the ISW report provided background information on the Mother’s situation in the USA. It also recommended the Mother be granted full custody and that relocation be granted.
III. The Judge’s decision
3. The Judge referred to Payne v Payne [2001] Fam 473 which was adopted by this Court in SMM v TWM (Child Relocation) [2010] 4 HKLRD 37. She held that :
‘Overall what is in the best interests of the children
45. This is a finely balanced case and the children are lucky to have two such dedicated parents both of whom clearly love them dearly. I accept that they are both good parents. At the end of the day though, I have decided to allow the relocation, although it will be delayed until after the conclusion of this academic year. I appreciate that the father will be deeply disappointed by this, but I hope that he will eventually come to accept the decision with good grace.
46. Both of the parties will be full time working parents, each of whom will need to rely on external support to help care for the children. I accept that once the children have had an opportunity to become fully bonded with their grandparents and extended maternal family, that it is preferable for them to be cared for by family when the parent with whom they are living is at work, as opposed to a domestic helper. It is also of note that the father is not on a permanent contract in Hong Kong. His contract of employment comes to an end in 2018. In many respects it seems to me that it may be easier for the father to move countries than for the mother at this stage. He is a US citizen. The children are US citizens. The father has not indicated whether he will consider moving countries if the relocation is granted. I would urge him to consider this as a possibility. Just as the children miss their mother when she is not available for them, I have no doubt that they shall will (sic) miss the father if he chooses to remain in Hong Kong.
47. I accept that both parties are now able to provide the children with adequate accommodation, although the grandparent’s...
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