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Zfy v Schc

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date02 June 2022
Neutral Citation[2022] HKCA 794
Year2022
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
Judgement NumberCAMP87/2022
CAMP87/2022 ZFY v. SCHC

CAMP 87/2022

[2022] HKCA 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 87 OF 2022

(ON AN INTENDED APPEAL FROM FCMP NO. 97 OF 2020)

________________________

BETWEEN
ZFY Applicant
and
SCHC Respondent

(Child Relocation)

________________________

Before : Hon Cheung, G Lam and Chow JJA in Court

Date of Hearing : 27 May 2022

Date of Judgment : 2 June 2022

____________________

J U D G M E N T

____________________

Hon Cheung JA (giving the Judgment of the Court) :

I. Background

1. D is a seven‑year‑old child born in Hong Kong in August 2014. Her parents met in Macau in 2013 and were married in Chengdu in the Mainland in February 2014. Her applicant mother (‘the Mother’) was 21 years old and a Chengdu resident at the time of the marriage. The respondent father (‘the Father’) was then 39 years old and a Hong Kong resident. After the marriage, the Mother came to Hong Kong to give birth to D. She came to Hong Kong as a visitor and was given permission to stay for six months. This remains to be the Mother’s current status in Hong Kong with the permission to stay having been renewed every six months.

2. Shortly after D was born, the Mother together with D went back to Chengdu to live for a period of six months. During that period, the Father regularly visited them in Chengdu. In August 2015, the Mother obtained a visitor visa and came to Hong Kong with D to join the Father as a family. D later began her studies in Hong Kong. The Mother as a non‑resident in Hong Kong is not eligible to work here. In 2016, the parties drifted apart in their relationship due to age and character difference. In November 2017, the parties officially separated and the Father moved out from the matrimonial home. In May 2018, the parents divorced in Chengdu. They signed a Divorce Agreement which was registered with the local authority in the Mainland. Under the Divorce Agreement, the Mother has the sole custody of D. The Father now has a new girlfriend.

3. On the Mother’s application, H H Judge George Own granted leave to her to bring D with her to live in Chengdu (‘the relocation order’) subject to, inter alia, the parties agreeing on the access arrangements by the Father. To date the parties have not been able to agree on the access arrangement. The Father now applies for leave to appeal against the relocation order. His application was previously refused by the Judge. Kwan VP directed the present application to be in the nature of a roll‑up hearing in that if leave to appeal is granted, the Court will treat the hearing as the appeal proper.

II. Principles

4. The only principle in matters concerning a child is the overarching or paramount principle of the best interest of the child. How this principle is to be approached is well established in a number of recent decisions of this Court in SMM v. TWM (Child : Relocation) [2010] 4 HKLRD 37, ZJ v. XWN (Leave to Appeal : Child Relocation [2018] 3 HKLRD 644, BA v. BL (Child Relocation) [2019] 4 HKLRD 23 and H v. W [2021] 2 HKLRD 1251. These cases expressly recognized the guidelines in Payne v. Payne [2001] Fam 473. The principle and approach stated in these cases are accepted by the parties.

5. The granting of the relocation order by the Judge is an exercise of discretion. The well‑established principle in an appeal against the exercise of discretion is that the appellate court is not to exercise the discretion afresh but will only do so if it can be shown that the discretion was not exercised at all, or that the Judge made some error of law in its exercise, or that the decision was plainly wrong, see, for example, TAC v. VDC Nee VDM HCMP 2198/2012, 5 December 2012. Again, there is no dispute on this point by the parties.

III. Overview

6. The Judge heard the evidence of the parents, the Social Work Officer, Ms Chan who recommended D to remain in Hong Kong and the Father’s mother who indicated that she is prepared to look after D. The Judge also had the International Social Investigation Report (‘ISIR’) which dealt with the position in Chengdu in terms of D’s future schooling and home care.

7. The parents have a relatively short marriage of slightly over four years. D only began to live in Hong Kong with her parents as a family unit in August 2015. Slightly over two years later, the Father moved out from the former matrimonial home. Under the Divorce Agreement, the Mother has the sole custody of D. In 2018, the Mother and D moved to a property belonging to the Father. After the divorce, the Mother took care of D full time with the help of a domestic helper. Whenever the Mother is away from Hong Kong, the paternal grandmother would look after the child. D now studies in an international school in Hong Kong.

8. During the marriage, the Mother had worked in the Mainland and she travelled there from time to time. The Shenzhen company that the Mother worked with intended to expand its business to Chengdu. Due to the COVID lockdown, the Mother was unable to travel to the Mainland.

9. In preparation for the relocation, the Mother has enrolled D in an international school in Chengdu. She has also bought a property in Chengdu where she and D will live. Her parents in Chengdu have agreed to assist her in taking care of D.

10. The Mother agreed to bring D to Hong Kong for the Father to exercise access twice a year during school holidays. She also agreed to set up video conference between the Father and D after the relocation during other days. The Father could also visit D in Chengdu over the weekend if he so wished.

11. The Judge summarized the Mother’s reasons for relocation as follows :

1) The Mother could not work in Hong Kong given her non‑resident status. Due to her work commitment with the Mainland company, the Mother needed to take extended periods of time every month on travelling for earning income to support herself and D. This was unsustainable in the long run as D would then be taken care of by the paternal grandmother and domestic helper despite the fact that she was the main carer of D.

2) The then increasingly unstable social political situation in Hong Kong, public discontent and unrest, widespread violence and rioting had caused the Mother to consider Chengdu as a safe and stable place to assure the safety of D.

3) The education system in Hong Kong had caused tremendous stress to D who had expressed unhappiness to the Mother. The early school hours and incessant school interviews that D had to attend in order to keep pace with the competitive education in Hong Kong had even caused D to cry bitterly a few times after she attended a few school interviews.

4) It is opportune time for D at her present age to resettle in Chengdu, the Mainland, as it would be easier for her to adapt and assimilate to the culture.

12. The Judge stated that it is common ground that neither the Mother nor the Father was pursuing or defending this application with the ulterior motive or selfishness to single out or remove the other parent from the life of D. He did not accept the recommendation of Ms Chan on relocation. He held that the Father had not provided the Court with any solid and well‑planned child care arrangement if the Mother’s relocation application failed and the Mother chooses to return to Chengdu by herself. Apart from adopting the Payne guidelines, he also identified the relevant factors in the ‘welfare checklist’ which Poon J (as he then was) in H v. N [2012] 5 HKLRD 498 recommended the Court to consider. The Judge also considered five other practical factors including the advice that D may receive from the Mother as she approaches puberty. The Judge held :

‘ 91. I have repeatedly reminded myself that the ultimate consideration should be the best interests of the child D, rather than the convenience, preference or interests of the mother M on this relocation application. ….

….

94. M had lived in Hong Kong for just about or slightly less than 6 years up until this trial in 2021, even before discounting her periods of absence for work or leisure prior to the lock‑down caused by the Covid‑19 pandemic. Hence, quoting the words of Hartmann JA (as he then was) in the SMM v TWM case (supra), it would be fair to say that M was just returning to her “home”. Chengdu has been M’s hometown. On the other hand, D could not be said to be leaving Hong Kong for a place that she had never been there before.

95. Considering all her evidence in the round, I am satisfied that M’s relocation was a realistic one, which was practical and also well planned. It was not a step to flee with D to Chengdu without heed of practicality or planning.’

IV. Grounds of appeal

13. Mr Pang SC (together with Ms Choy) for the Father relied on eleven grounds of appeal which can be summarized as follows :

1) The Judge wrongly presumed in favour of the Mother who is the primary carer of D;

2) The Judge wrongly departed from the recommendations of Ms Chan in her Social Investigation Report dated 24 November 2020 who recommended against relocation;

3) The Judge misunderstood the nature of the ISIR;

4) The Judge failed to consider the effect of the parties’ Divorce Agreement signed in Chengdu, which stated, inter alia, that D shall live in Hong Kong;

5) The Judge erred in failing to consider the effect of COVID on relocation, which meant that as a result of the travel restrictions and quarantine requirements, the Father could not maintain the same level of face‑to‑face contact with D upon relocation;

6) The Judge failed to take into account material facts which negated the Mother’s financial concerns which motivated her application for relocation;

7) The Judge wrongly...

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