HKFC 324
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 7451 OF 2016
||RM (aka RH)
Coram: His Honour Judge I Wong in Chambers (Not open to Public)
Dates of Hearing: 9, 10, 15, 16,17, 22 and 23 May 2019
Date of Closing Submission: 14 June 2019
Date of the Petitioner’s Supplementary Note: 20 June 2019
Date of Judgment: 18 December 2019
(Relocation and Schooling)
1. There are two summonses before me.
2. The first is an application taken out by the petitioner mother for the relocation of the parties’ younger son to Japan, her home-country. The second one, taken out by the respondent father, is for leave for the younger son to attend an English international school instead of a Japanese school in Hong Kong.
3. In this judgment I shall continue to refer to the petitioner and the respondent as “the mother” and “the father”. I shall refer to the elder boy as “G” and the younger one as “L”. G was born in March 2004 and is now aged 15 ½. L is 7 years old.
4. Prior to these applications, the parties have already had a skirmish when the father sought security for costs of $750,000 to be paid by the mother in respect of her application for relocation. By a judgment dated 8 April 2019, the father’s application was refused. This is the background against which the trial has taken place. I shall refer to the judgment of 8 April 2019 as “the Security for Costs Judgment”.
5. It has to be mentioned that the present application for relocation is already the mother’s second application. Her earlier application, which was under FCMC 8500/2014 and was heard not long ago before Deputy Judge Susan Wong, was rejected after a 11-day trial. I shall refer to Deputy Judge Susan Wong’s judgment of 7 September 2016 as “the 2016 Relocation Judgment”).
6. I have already set out the history of this matter at some length in the Security for Costs Judgment; the following background is extracted from that Judgment.
7. The mother is Japanese and the father British. They met in Germany in 1999 when the mother was working and the father was on a business trip there. They soon started a relationship. In 2004 the mother moved to join the father in the UK where they were married in March 2004. A week later, G was born.
8. In 2007, the father was offered a job in Hong Kong and the whole family moved to settle here. Subsequently, L, the younger son, was born in August 2012 in Hong Kong.
9. Sadly, the marriage did not last long. In the summer of 2013 the mother, taking the boys with her, moved out of the former matrimonial home and stayed at her boy-friend’s apartment. I shall refer to the boy-friend as “Mr Y”. Mr Y is Japanese and at that time was working in a bank in Hong Kong.
10. The mother petitioned for divorce on 27 June 2014 (under FCMC 8500/2014) on the ground of the father’s unreasonable behaviour. The father defended and cross-petitioned on the ground of the mother’s adultery.
11. On 23 January 2015 the mother took out an application to have the boys relocated to Japan. This was her first relocation application that led to the 2016 Relocation Judgment. At that time, her claimed intention was to re-settle in Japan and she wanted the boys to go with her. She claimed she would live with her parents in the Kisarazu City of Chiba and the grandparents would be available to assist both financially and physically in taking care take of the boys.
12. As referred to above, this first relocation application went through a 11-day trial and was refused by Deputy Judge Susan Wong on 7 September 2016 who at the same time granted the joint custody of the boys to the parties with care and control to the father and reasonable access to the mother.
13. The parties subsequently came to an agreement that the divorce main suit be started afresh and proceeded on the ground of 2 years’ separation. Consequently, a new petition (under the present case reference) was taken out by the mother on 16 June 2016.
14. The parties had further been able to come to a settlement over the financial matters which was endorsed by way of a consent order on 31 May 2017. In brief, the parties agreed to have their property in London sold with the sale proceeds to be shared equally. The capital split was $1.75 million each.
15. Decree nisi was granted on 9 January 2017 and it was made absolute on 16 June 2017. About 4 months later, the mother took out the present relocation application.
16. At the very beginning, the mother’s application covered both of the boys, as was the case in her 1st relocation application. The Social Investigation Report (“the SIR”) and the International Social Service Report (“the ISSR”) were duly obtained. Ms Lo, the social investigation officer, was not supportive of the mother’s application. She was of the view that it is to the best interests of the boys that they are to remain in Hong Kong under the care of their father.
17. At the Children Dispute Resolution Hearing of 25 May 2018 the mother dropped her application in respect of G but continued to pursue her application in respect of L.
18. What followed were the father’s application for security for costs as referred to in  above and the resultant Security for Costs Judgment.
The Present Situation of the Parties
The Father and the Boys
19. The father is living with the boys in the former matrimonial home in Shatin. This is a leased apartment with an area of about 1402 m. Together with them are the father’s girl-friend Ms K and a domestic helper Ms S. Ms K is Japanese with whom the father started a relationship in 2015 and was introduced to the boys in the summer of 2016. As Ms K does not have any right to reside in Hong Kong, she has been travelling between Hong Kong and Japan and has been staying with the family on an interval of about 3 months each. Ms K had attended an international school in Japan before she received university education in Seattle and Hawaii. She has a bachelor and a master’s degree and is a qualified nurse practitioner. She used to work for a clinical research company in Tokyo but has resigned for the purpose of securing an employment in Hong Kong.
20. There has not been any change in the father’s employment since the 2016 Relocation Judgment save that he has since been promoted to the position of Key Account Director.
21. G is currently attending an English international school which I shall refer to as “the A School”. He used to study in a Japanese school in Hong Kong. That was the situation till the summer of 2018 when he finished his primary school and changed to the A School. L has finished kindergarten since the Security for Costs Judgment. As from April 2019, he too has been attending the A School. That was arranged by the father despite the objection from the mother.
22. The mother returned to Japan for good on 28 September 2016, just 3 weeks after the handing down of the 2016 Relocation Judgment and way before the decree nisi was granted and any settlement over the financial matters was reached. The undisputed evidence is that she was not joining her parents. In fact, she was joining Mr Y who probably had returned to Japan earlier and has since been living with him. Initially she stayed in a rented apartment with her boy-friend and later purchased a house in Yokohama in May 2017 with a down payment of JPY2,000,000 (about $140,000) and a mortgaged finance. The house is a two-storey 4-bedroom house with a total floor area of about 1002 m.
23. She is currently working full-time as an assistant manager for a large motors corporation in Tokyo. She plans to marry with Mr Y after the latter’s divorce is finalized.
24. The mother is having access to the boys on every other weekend in Hong Kong. Normally, she would arrive in Hong Kong on Saturday and leave on Sunday and the boys would stay with her in a hotel close to the former matrimonial home. On a couple of occasions Mr Y came along. On the top of that, there is access by electronic means and she is sharing the boys’ long holidays with the father on equal basis. The boys have also on the 3 occasions joined the mother in Japan during long holidays, viz, from 13 August 2018 to 26 August 2018, from 31 December 2018 to 6 January 2019; and from 10 March 2019 to 30 March 2019.
25. By and large, apart from some hiccups at the start, access has been carried out smoothly.
The Mother’s Case
26. The mother has now resettled in Yokohama with a secure job and a stable relationship. She has purchased her own house which provides L with satisfactory living environment; specifically, L will have his own room. There is a local primary school nearby where a school place is guaranteed.
27. As regards the taking care of L, the mother’s employer allows her to work from home for 80 hours a month and there is also a policy which allows her to work 4 to 7 hours a day for any period from 8:45 am to 5:45 pm. This would give her the flexibility she needs to take L to school or return home. There would also be childcare assistance from her parents and Mr Y. Her parents are committed to coming to her home on weekdays for taking care of L. Thus, she is in a position to take good care of L.
28. In her affirmations, the mother complained about the inadequacy of the father’s care given to the boys since her departure. Indeed, she went so far as to say in her affirmation of 21 October 2017 that the father has been unable to take good care of the boys. The long list of her complaints includes the father’s frequent overseas trips for business and with his girlfriend Ms K, leaving the boys to stay with the domestic helper. There...