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Cyp v Lc

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date20 May 2015
Year2015
Judgement NumberFCMC3744/2014
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC3744/2014 CYP v. LC

FCMC 3744 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3744 OF 2014

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

BETWEEN
CYP Petitioner
and
LC Respondent

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

Coram:Deputy District Judge I. Wong in Chambers (Not Open to Public)
Dates of Hearing: 26 – 29 August, 2, 4 – 5 September, 3 – 5 and 17 – 18 December 2014
Date of Petitioner’s Closing Submissions: 30 January 2015
Date of Respondent’s Closing Submissions: 30 January 2015
Date of Petitioner’s Reply Submissions: 13 February 2015
Date of Respondent’s Reply Submission: 13 May 2015
Date of Handing Down Judgment: 20 May 2015

__________________

JUDGMENT
(Relocation, Custody, Care and Control and Access)

__________________

The Application

1. This is a trial on the arrangement of the 2 children of the family upon the parties’ divorce.

2. The parties, both Chinese Singaporeans, were married in November 2005 in Hong Kong.

3. The petitioner mother “M” is aged 36 and the respondent father “F” is aged 43, both occupy senior positions in the banking industry.

4. They have 2 children; both were born in Hong Kong. The elder one S, a boy, is now 6 years old and the younger child R, a girl, is now 5 years old.

The Divorce Proceedings

5. M petitioned for divorce on the ground of F’s unreasonable behaviour in March 2013. It is her second petition. Earlier on, she petitioned for divorce on 16 September 2011 (“the 1st divorce petition”) with a decree nisi pronounced on 23 November 2011 but the parties were able to reconcile and agreed to withdraw the proceedings by way of a consent order on 7 May 2012.

6. Initially F contested the present proceedings by filing an Answer. An agreement was finally reached between the parties that M would file a fresh petition based on one year’s separation. That was done and decree nisi was pronounced on 19 August 2014.

7. M filed her application on 21 May 2013 for the custody, care and control of the 2 children and for leave to relocate the children to Singapore. I need to mention that in the 1st divorce petition, she already asked for relocation to Singapore.

8. F also made his application for joint custody and joint care and control on 13 September 2013.

Education Issues

9. At this juncture, I need to mention that there were previously at least 4 applications including an injunction application from each side before the court regarding the education of the children.

10. To put this in general terms, on the side of F, he tried to have the children enrolled in an international school other than the Singapore International School (“SIS”). Thus, applications were made to the German Swiss International School, the French International School (“FIS”), the Canadian International School, the English Schools Foundation, the Hong Kong International School, the Kellett International School and the Chinese International School. As for the mother, she wanted to keep the status quo before a decision is made regarding her application for relocation; and, if a new school was to be chosen for R, this should be SIS where S was already attending.

11. At the end, S did not get any offer and R was successful with FIS only. Hence, when it came to the full argument of the dispute, the court had to decide whether R should attend (1) her then current kindergarten (“SWK”), (2) SIS or (3) FIS.

12. At the end of a full day’s hearing, upon the indication from the court at the request of the parties, they finally agreed that R was to continue to attend SWK for the year 2014/2015.

13. Then apparently things made some progress, if I may put it this way, shortly before the present trial, F agreed to M’s proposal that both children are to attend SIS until completion of their primary education and thereafter a review to explore the appropriateness of the children attending boarding school in UK or US.

14. On the 3rd day of trial, ie 28 August 2014, the parties further agreed that in the event that M’s application for relocation is refused and she does not appeal, S and R shall attend SIS or until written agreement to the contrary or until further order whichever shall be earlier. F also agreed that in the event that M’s application for relocation is granted, the children shall attend the schools chosen by M.

Background to the marriage

15. As mentioned, both parties are Singaporean; and both are highly educated. M received university education in the United States and worked there for 2 years before returning to Singapore in 2003.

16. F attended university in the United Kingdom and worked in the financial industry there for a year and was then relocated to Hong Kong in 1995. He had his first marriage in Hong Kong but it was dissolved in 2001. No child was born in this first marriage. In 2002 he was laid off. He returned to Singapore and did a master degree there. It was during this time when he met M in Singapore. In January 2005 he returned to Hong Kong for taking up a new job. A couple of months later, M also came to Hong Kong and the couple got married on 12 November 2005 in Hong Kong.

17. Both parties continued to work after the marriage until M quitted her job in February 2010 for giving birth to R who was born in April 2010. Since then M was the primary carer of the children with the assistance of 2 domestic helpers. This situation lasted until March 2012 when M rejoined the workforce. As of now, both parties are in gainful employment.

18. M’s parents and her 3 younger sisters are living in Singapore. In the past, from time to time her parents came to visit the family and stayed at the former matrimonial home. F’s elder sister Ms N, who has 2 older children, is living in Hong Kong but it appears that she travels frequently. F says his parents are now staying in Hong Kong much longer than before. When they are in Hong Kong they stay at Ms N’s place.

19. Unfortunately, the marriage did not work out and they separated on 25 March 2013. As mentioned above, this was not the first marital breakdown. The couple had previously separated in September 2011 when M took out the 1st divorce petition.

Present Arrangement of the Children

20. Despite the petition for divorce, the parties continue to reside together with the 2 children at their home rented in the name of F (“the former matrimonial home”). It has been the children’s home since January 2010 and is a spacious apartment with 3,560 ft² on the Peak. The family is now being assisted by two domestic maids and a driver.

21. Despite the fact that the 2 children have their own bedroom, M has been sleeping with R in the master bed room while F shares the guest room with S.

22. The children are now staying with F on Saturdays and with M on Sundays. Apparently, this arrangement has been worked out rather smoothly.

23. S is now attending SIS and R has been attending SWK since September 2013. In due course, she will join her elder brother in SIS.

The Mother’s Case

24. M’s case is one of typical ‘primary carer returns home’ case. She came to Hong Kong for the marriage only. M denies it has been her intention to remain in Hong Kong permanently. When her marriage has come to an end her association with Hong Kong has also ended, it is the time that she returns home.

25. She has been consistently the primary caregiver of the children since their birth. She was a full time mother from February 2010 to March 2012. Before the birth of S, she was also a full time mother for 6 months.

26. M sees that returning to the home country where there is support from her extensive family provides the children with a settled and structured home life. In addition, Singapore is also where F was born and brought up. He only left Singapore for university education. Singapore is the home for the entire maternal and paternal extended family. F, his parents and sister Ms N all own 3 separate homes in Singapore, with F’s purchase intended to act as the parties’ family home (“the Singapore Property”) when they relocate back home.

27. Her job is essentially a Singapore-based job out of Hong Kong. The need and hence the frequency of business trips would be much less than before once she is relocated to Singapore.

The Father’s Case

28. F’s case is in great contrast to that of M: there has no primary carer throughout the children’s short lives and that both parents ‘parented’ the children. He emphasizes that prior to the petition, he and M worked together as a family and he has taken an equal part in caring the children.

29. He applied for joint custody and joint care and control but in his open proposal he agrees to joint custody and sole care and control to M if she is to remain in Hong Kong. He wants to resolve as many issues as possible. As long as it does not affect the interest of the children, he will learn to live with it. In future, he would like to work with her and co-parent together.

30. He emphasises that young children need their parents to be physical, not virtual. He asks for generous access during the school term because children at that age require frequent contacts with their parents. It is about being there. S and R are unable to save this moment to talk to their daddy later.

31. His parents are spending most of the time in Hong Kong. After divorce, he will be living with his parents and will be assisted by Ms B, his domestic helper. His sister Ms N will be close by.

The Evidence and the Witnesses

32. The parties have filed at least 12 affidavits. Social Welfare Reports from Hong Kong and Singapore were called for and both parties have filed their Form Js. Apart from the oral testimonies from M and F, Ms Lam, the Hong Kong Social Welfare Officer (“SWO”), M’s father Mr C and her mother Madam T, F’s elder sister Ms N and his domestic...

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