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CACV209/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 209 OF 2009
(ON APPEAL FROM FCMC 11230 OF 2008)
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BETWEEN
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SMM |
Petitioner |
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and |
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TWM |
Respondent |
| ［Relocation of child/Care and control of child］ |
Before : Hon Cheung, Hartmann and Kwan JJA in Court
Date of Hearing : 7 May 2010
Date of Judgment : 9 June 2010
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J U D G M E N T
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Hon Cheung JA :
Two appeals
1. There are two appeals in this case. The first is an appeal by the mother against the decision of H H Judge Melloy refusing her permission to remove her child from Hong Kong (‘the relocation application’). The second is an appeal by the father against the decision of the Judge granting sole care and control of the child to the mother (‘the care and control application’).
Mother’s appeal on relocation application
Background
2. The parties are an American couple. The mother was aged 39 and the father 43 at the time of hearing below in July 2009. They first met in the United States in 1997 and were married there in 1998. By then the father was working as a banker in New York. In 2000 the father was transferred to Singapore on a two year contract.
3. The mother was previously working as an accountant. By the time of their marriage, she had already decided to pursue a career in veterinary medicine and had studied part time in a veterinary school when the father obtained the job in Singapore. With his agreement, the mother went to Canada to obtain her veterinary degree and visited the father in Singapore during her school breaks.
4. In January 2002, the mother discovered that she was pregnant and decided to defer her study and joined the father in Singapore. She gave birth to the child, a boy, in September 2002 in Singapore.
5. In August 2003, the mother went back to Canada to complete her studies and with the agreement of the father, took the child with her. According to the mother, by then there were already cracks in the marriage : she felt isolated in Singapore with her child because of the father’s work and his habit of going out late at night with his acquaintances.
6. The initial agreement of the couple when the mother went back to Canada with the child was that the child would stay with the mother for one semester only. The mother, however, subsequently changed her mind because she felt that the father was travelling all the time with his work it would be a terrible idea for the child to be looked after by a domestic helper in Singapore. So the child remained with the mother for the rest of her study in Canada until 2005 when she obtained her degree. During this time the mother was able to enlist the help of a lady, a former special needs teacher, who was running a day care centre to look after the child during the day. She would pick up the child from four to five in the afternoon after school. She would take care of the child in the evening and weekends. She said she was a better mother when she was able to be by herself. Needless to say the decision to have the child with her in Canada caused further deterioration in the couple’s marriage.
7. In May 2005, the mother graduated from veterinary school and rejoined the father in Singapore in June 2005. In January 2006, the father obtained a job with the Hong Kong branch of his bank and the couple with the child came to live in Hong Kong.
8. In February 2008, the mother obtained a full time job with the Agricultural and Fishery Department.
9. Since January 2009 the child studied at an international school which is an American discipline school.
10. The parties have maintained their family ties with America despite moving to Asia in 2006. The mother’s own mother (‘the grandmother’) now lives in Shelton, Connecticut. The grandfather had passed away a few years ago. The mother has a sister and a brother living in Massachusetts. The sister is married with four daughters. The father’s own parents are also living in Connecticut. The couple visited their families during Christmas. The mother had spent more time in America visiting her ailing father on and off for four months between June 2006 and February 2007. In the summer of 2009 the mother spent four weeks with the child in America and visited three schools for the purpose of implementing her desire to relocate the child out of Hong Kong.
11. The parties had already sought marriage counselling in Singapore in 2003 and had marriage mediation in Hong Kong in July 2008 after the mother first discussed divorce with the father in June 2008. The mediation was unsuccessful and the mother petitioned for divorce on 22 September 2008. On 12 February 2009, she issued the application for leave to permanently remove the child from Hong Kong.
12. An interim order was made by the Judge on 2 April 2009 ordering that the child will remain in the matrimonial home and in the joint care of the parents on the following basis : he would be in the care of the father from the end of school on Wednesday afternoon until the following Thursday morning and also on every alternate weekend from the end of school on Friday until Monday morning. The child would be in the care of the mother at all other times.
13. The parties agreed to rent a serviced apartment for their use while they were not caring for the child and agreed one of them would move out of the matrimonial home to the serviced apartment while the other was caring for the child.
14. On 24 July 2009 the father applied by summons for joint custody and joint shared care and control of the child.
15. On 21 August 2009 the Judge after hearing the relocation application refused the mother’s application to remove the child out of jurisdiction. She granted the parties joint custody of the child with sole care and control to the mother.
16. The mother now appeals against the refusal to let her take the child out of jurisdiction.
The present position
17. The parties informed the Court that since July 2009, the father had moved to a rented accommodation near the matrimonial home. The new accommodation has a room for the child and the interim arrangement concerning the care of the child continues save that when the father has the child, the child will stay in the father’s home.
18. The father now also has access to the child on Monday evenings after school until 8 pm on the weeks when he does not have access to him over the weekends. The school holidays are split equally between the parents.
The principles
19. The parties agreed that the applicable principles governing relocation application are based on the Payne v. Payne [2001] Fam 473 line of cases. They are English Court of Appeal cases. There is no House of Lords’ decision on this issue. These principles have been applied in Hong Kong, for example, in M v. B (Removal of children from the Jurisdiction) [2009] HKFLR 349, by H H Judge Bruno Chan although there has not been any Hong Kong Court of Appeal decision on relocation applications.
20. Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469. In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.
21. The principles in Payne can be summarised as follows :
1) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence.
(per Thorpe LJ at paragraph 27)
2) The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children.
(per Thorpe LJ at paragraph 26)
3) The application should be approached as follows :
(1) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.
(2) If, however, the application passes these tests then there must be a careful appraisal of the father’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 and his 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 family and homeland?
(3) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(4) 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 in so far as appropriate.
(per Thorpe LJ at paragraph 40)
4) In short, the relevant factors are :
(1) The welfare of the child is always paramount.
(2) There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.
(3) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(4) Consequently the proposals have to be scrutinised with care and the Court...
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