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CACV 81/2021
[2021] HKCA 733
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 81 OF 2021
(ON APPEAL FROM FCMC 8332 OF 2017)
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Petitioner |
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Respondent |
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Before: Hon Lam VP, Yuen JA and B Chu J in Court
Date of Hearing: 18 May 2021
Date of Judgment: 24 May 2021
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JUDGMENT
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The Court:
INTRODUCTION
1. The petitioner and the respondent are respectively the Father and the Mother of a 5 year old girl A. Pursuant to her judgment handed down on 10 November 2020 (“Judgment”), Family Judge Melloy (“Judge”) granted amongst other things leave to the Mother to permanently remove A from the jurisdiction of Hong Kong and to relocate to Singapore with effect from the uplifting of the travel ban between Hong Kong and Singapore (“Relocation Order”). By her ruling of 27 January 2021, the Judge refused leave to the Father to appeal against the Relocation Order.
2. The Father obtained leave to appeal from the Court on 25 February 2021 and the Relocation Order has been stayed pending the determination of the Father’s appeal.
3. By his Notice of Appeal filed on 3 March 2021, the Father asks for the Relocation Order to be set aside, the Mother’s summons issued on 12 March 2020 (“Relocation Summons”) be dismissed, and further the Father’s amended summons for shared care and control of A issued on 7 January 2019 (“C&C Summons”) be remitted to the Family Court to be determined afresh.
4. Father’s C & C Summons was issued some 14 months prior to Mother’s Relocation Summons and had been fixed for a 7 day trial to commence on 5 May 2020. It was less than 2 months prior to the trial that Mother issued her Relocation Summons.
5. As a result, the original trial dates for the Father’s C&C Summons in May 2020 were vacated and both summonses fixed for a trial in July 2020 before the Judge. Although second in time, the Relocation Summons ended up to be the focus of the trial, and it was upon relocation, that A’s care and control was granted to the Mother.
6. Mother’s Relocation Summons consisted of two applications, the application to relocate and an application to change A’s name. For reasons set out in the Judgment, Mother’s application to change A’s name was dismissed. There was no appeal against this part of the Judge’s order.
7. At the trial before the Judge, both parties acted in person. Recently, Father’s former solicitors have come back on record, and Counsel Mr Eugene Yim and Ms Vivien Leung appeared for Father for the present appeal. Mother appeared in person.
RELEVANT BACKGROUND
8. The brief background of this matter has been set out in paragraphs 11 and 15 of the Judge’s judgment of 10 November 2020.
9. In short, the parties married in February 2013. A was born in October 2015 and the parties started living apart in separate households in about January 2016. Their marriage lasted about 3 years. Father issued a divorce petition in June 2017 and a decree nisi was granted in January 2019.
10. By a court order dated 15 December 2017, the parties have joint custody of A, with interim care and control to the Mother and interim defined access to the Father (“2017 Order”). Mother and A moved out from the former matrimonial home on 18 April 2018. Joint custody was not in issue and subsequently, on 30 July 2018, there was a further order in relation to A’s arrangements (“2018 Order”).
11. Thereafter, A’s weekends were split between the Father and the Mother, with the Father having overnight access on one other day per week and lunch time access on Mondays. A’s school holidays had been split on 50:50 basis.
12. Mother first informed Father in January 2020 about her intended move to Singapore with A. The parties were not able to come to any agreement on the relocation, which led to Mother issuing the Relocation Summons.
13. The Relocation Summons was supported by the Mother’s 10th affirmation filed on 12 March 2020. Mother had worked between August 2007 to August 2011 at the Hong Kong office of a Singapore recruitment company owned by a Mr N. The Hong Kong office was later closed and Mr N continued to run the Singapore company in Singapore. Mother’s evidence was that she and Mr N were very good friends and that they started a romantic relationship in 2019 and Mr N had offered her a post in the legal division of his company and the post would offer Mother flexibility to care for A. It was Mother’s evidence at that time that it was agreed by Mr N that Mother would become a shareholder in his business and that as a co-owner of the business, she would have better job security but there were no details given by the Mother as to the amount of equity she was to have in Mr N’s business nor did she reveal her former romantic relationship with Mr N.
14. Further details emerged later. Mother met Mr N when she was working in the Hong Kong office of Mr N’s recruitment company in August 2007. She and Mr N started to have a romantic relationship sometime in about 2008 when both parties were married but separated from their respective spouses. In 2010, Mr N opened a fitness/yoga business in Hong Kong and he gave Mother 10% to 20% sweat equity in that business. Mr N moved to Hong Kong to run the business which turned out to be unsuccessful. It was closed down in the summer of 2011. The Hong Kong office of Mr N’s recruitment company was also closed. Mr N then returned to Singapore while Mother stayed in Hong Kong. In other words, the relationship between Mother and Mr N lasted about 3 years, after which both parties went their separate ways, and they did not reconnect for some 8 years thereafter.
15. Mr N and his then wife later divorced in 2016. Mr N has 3 children by his former wife, who were respectively 24, 21 and 14 years old at the time of the trial. His son, the oldest of the 3 children, was living and working in the United States, and his older daughter was attending university in Singapore and was staying in a hostel on campus and would spend weekends with Mr N. His younger daughter was living with his former wife in India and would visit Singapore once or twice a year.
16. According to Mr N’s evidence during the trial, since after August 2011, apart from email or phone communications about a particular few cases Mother was working on at that time, he and Mother had not been in touch with each other. It was in 2019 that they re-connected.
17. Mr N said between 31 July 2019 and December 2019 Mother had travelled to Singapore about a couple of times and that he came to Hong Kong about a couple of times, the last time being Chinese New Year 2020. They met in person a total of about 5 to 6 times before the pandemic, but they were talking almost every day on the phone. Mr N’s evidence was that he first spoke to Mother about a job between September and October 2019. He did not offer any employment to Mother. Instead, in October to December 2019, he invited Mother to invest and take up equity in his business.
18. According to Mr N, Mother had sat on his proposal, and eventually paid USD 150,000 on 31 March 2020 to acquire 20% equity in his recruitment company and Mother was to acquire a further sweat equity of 20% over 2 years, and that she was to end up with 40% in the company.
19. Further, according to Mr N, he was first connected to A on What’s App in March 2020.
20. The relocation was ordered by the Judge to take effect from the uplifting of the travel ban between Hong Kong and Singapore. Pursuant to the Relocation Order, the 2018 Order was varied for the Mother to have A’s care and control upon relocation. The Judge further made an intervening order for defined access for Father for the period between the handing down of her judgment and the relocation (“Intervening Order”). In brief, since the Intervening Order, A’s weekends have since been alternated between the parties and in addition, A shall be in the care of the Father for one night following his weekend access and for two nights when he does not have weekend access. The lunch time access on Mondays was discharged but the rest of the 2018 Order have remained mainly the same. The Judge further made post relocation defined holiday and term access for the Father.
21. It was directed in the Relocation Order amongst other things that the Mother was to obtain a mirror order from the Singapore Court with respect to the terms of the Relocation Order prior to A’s relocation and that a parental co-ordinator to be appointed by the parties and also a play therapist for A. In the Chronology submitted by Mother for this appeal, it appeared that Mother had made an application to the Singapore Court on 8 February 2021 for the mirror order (No FC/OSG 22/2021). There was a case conference on 9 March 2021, which was attended by both Mother’s and Father’s respective Singapore lawyers. The hearing has now been adjourned to 25 May 2021, pending the determination of this appeal.
22. By now, the Mother and Mr N have not seen each other some 15 months. At the time when leave was granted by this Court for the appeal to be brought, the Relocation Order was stayed. Although the much delayed “travel bubble” between Hong Kong and Singapore was originally to start on 26 May 2021, this was suspended the day before the appeal. Hence, the latest position is that it is in any event not feasible for A to be relocated on the terms as provided in the order of the Judge in respect of the generous staying access to the Father which predicated upon frequent travel between Singapore and Hong Kong as mentioned in paragraph 3 of the Judgment.
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