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Ve (Nee Ke) v Vrj

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date04 June 2015
Year2015
Judgement NumberFCMC7676/2011
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC7676B/2011 VE (nee KE) v. VRJ

FCMC 7676 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7676 OF 2011

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

BETWEEN
VE (nee KE) Petitioner
and
VRJ Respondent

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

Coram: Deputy District Judge I. Wong in Chambers (Not Open to Public)
Dates of Hearing: 23 – 26, 30 September, 3 October, 9 – 12 & 16 December 2014, 5, 6 10-13 & 19 March 2015
Date of Parties’ Closing Submissions: 27 April 2015
Date of Petitioner’s Reply Submissions: 15 May 2015
Date of Respondent’s Reply Submissions: 21 May 2015
Date of Handing Down Judgment: 4 June 2015

__________________

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

__________________

The Application

1. This is the trial on the respondent father’s application dated 3 December 2013 for leave to permanently remove the two children of the family from the jurisdiction of Hong Kong to his home in Colorado, USA. He also asks for paragraph 2 of the consent order of 24 October 2012 (“the Consent Order”), by which he has sole custody but joint care and control, to be varied so that he has care and control, with access to the petitioner mother.

2. The petitioner mother is in opposition to the father’s application. On 28 February 2014, she responded by filing an application for variation of the Consent Order, seeking an Order for joint custody, with care and control to her and access to the father.

3. The children in question are “J”, a girl born on 12 August 2002 (now 12 years and 10 months old) and “A”, a boy born on 21 June 2004 (now nearly 11 years old).

4. For convenience, in this judgment, I refer to the petitioner mother as “P” and the respondent father as “R”.

5. This is a high conflict case. Even with the assistance of their legal representatives, at least for the last 2 to 3 years or so, the parties essentially have had no ability to come to any resolution of their disputes. From time to time there were applications before the court dealing with different matters. On the more substantial ones, there was a hearing before Deputy Judge Own in August 2012 resulting in the children changing from a Japanese School to an international school, there was an injunction hearing on R’s retirement funds and the last substantial hearing was on the parties’ respective applications in respect of the proceeds of sale of the former matrimonial home. It is quite certain that this judgment will not be the concluding note since the trial on the ancillary relief will be coming up soon.

The Background

6. P was born in 1978 and is Japanese. R, a Caucasian American, was born in 1960. They are now aged 36 and 53 respectively.

7. R is a US qualified accountant. In 2000, he was transferred by his employer to work in Japan where he met P in the same year and they married in Nevada in February 2002. The children were born in Japan and they hold dual American – Japanese citizenship.

8. In July 2005, R’s employer posted him to Hong Kong so the whole family moved to this territory.

9. There had been heated disputes between the parties throughout the marriage. On several occasions, police were involved. In or around September 2009, a referral was made by the police to the Social Welfare Department, and counselling services were arranged for P.

10. Beginning 2011, P attended sessions with a psychologist after being referred by her solicitor which she engaged in January 2011. She also had sessions with one Dr Wong, a medical practitioner, to treat her depressions and stress. She was prescribed anti-depressants at the time.

11. It is the R’s case that he has been expressing concerns for many years about P’s emotional instability, and the way she loses her temper with the children, resorting not only to shouting, but to violence against them. She causes damage to property when angry. It is fair to say that generally speaking though she does not deny these she has her own explanations; the main one being she was provoked by R.

12. Around February 2011, R discovered that P had an affair. P admitted she had a boyfriend since November 2010. The relationship however was short-lived; it is now a matter in the past.

13. P commenced divorce proceedings on 10 June 2011, on the ground of R’s unreasonable behaviour. On 12 August 2011, an Amended Petition was filed, with a watered-down version of the particulars. On 8 September 2011, the decree nisi was pronounced.

14. On 15 November 2011, as a result of a dispute between the parties, P made an application to the court for a restraining order against R and for an interim custody order. On 22 November 2011, an Order was made that R be restrained from molesting P and entering the matrimonial home, and that P was given interim custody, care and control of the children.

15. On 29 November 2011, upon R’s submission of his undertaking not to molest P, the restraining order was set aside and defined access was provided to the parties. R then returned to the former matrimonial home.

16. On the same day, ie 29 November 2011, an Order was made to appoint Dr Levy as the psychologist of the children to address the issues related to their emotional and psychological well-being. The children and the parties attended sessions with Dr Levy for the period between December 2011 and March 2012, and a report was filed by Dr Levy on 9 April 2012. A Social Investigation Report was also called for, to make recommendations on the custody arrangements of the children.

17. In or around June 2012, P moved out of the former matrimonial home and set up her new home in the same neighbourhood. It is R’s case that even before this time she had been spending considerable periods of time away from home, leaving the children in the primary care of the father.

18. In or around August 2012, upon Dr Levy’s recommendation, it was arranged for the children to see another psychologist Dr Pon and to attend play therapy sessions to deal with the trauma that they experienced arising from the acrimony of the parties. They have been seeing Dr Pon weekly ever since.

19. Pursuant to an Order dated 31 August 2012, the parties appointed Dr Mistler, a clinical psychologist, to conduct a psychological assessment on themselves in the context of the contested application for custody care and control. A report was filed by Dr Mistler on 12 October 2012. I will come to this report in due course.

20. Sometime later on 24 October 2012, by the Consent Order, R was given the sole custody of the children, with an order for joint care and control which essentially provides for an equal spilt of time over a 14-day cycle. However, that was never implemented for the reason that the parties subsequently agreed that R is to have 9 nights and P is to have 5 nights in each cycle as follows:-

Week 1 and Week 3

The father would have the children from Sunday after 7:30 pm to Thursday morning; and

The mother would have the children from Thursday afternoon to Sunday at 7:30 pm

Week 2 and Week 4

The father would have the children from Sunday to Thursday morning and from Saturday after 7:30 pm to Sunday; and

The mother would have the children from Thursday afternoon to Saturday at 7:30 pm

21. There is some dispute over how this arrangement came by. R says it was recommended by Dr Pon but P says she unwillingly agreed to it because she did not want to go to court again. I will deal with this dispute in due course.

22. On 15 January 2013, R was informed by his employer - the very employer that sent the family to Hong Kong - that his employment would be terminated with effect from 15 April 2013. He left his employment on or about 15 April 2013.

23. Meanwhile, R has since 2012 commenced a new relationship and will marry his partner (referred to as “IY”) once these proceedings are over. IY, a young Indonesian lady, moved to live with R and the children in the former matrimonial home in about July 2013 and she also gave birth to their daughter on 24 January 2014. The baby is now nearly 1 ½ years old.

24. Since his dismissal from his employment in April 2013, despite his attempts of securing a job in Hong Kong and in US, R has failed to obtain any permanent position. He has been doing some part-time or temporary jobs earning much less than what he earned before.

25. The 5-day trial on the ancillary relief was originally fixed to be heard on 6 December, 2013. It was however derailed by R’s present application for permanent removal. The trial has now been fixed to be heard commencing in June 2015 following the determination of the children’s matters.

26. Not surprisingly given the acrimony between the parties, on the children’s matters alone, both have filed at least 8 affirmations in support of their contentions.

27. There are 4 Social Investigation Reports (“SIR”), the first two are on the custody issue while the latter two are specifically for the removal issue:

1. SIR dated 21 December 2011;
2. Up-dated SIR dated 12 October 2012;
3. SIR dated 23 April 2014, following the R’s application for the permanent removal of the children and P’s application for variation of custody; and
4. Updated SIR of 7th August 2014

28. There is also an International Social Service Report (“ISSR”) providing an assessment on the home environment in Colorado.

29. The following expert reports have also been filed:

1. Psychological Report by Dr Levy dated 9 April 2012;
2. Psychological Report by Dr Mistler dated 12 October 2012;
3. A Psychological Report by Ms Lim of the Social Welfare Department dated 23 April 2014; and
4. An up-dated Psychological Report prepared by Dr Levy dated 30 September 2014

The Present...

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