FCMC 16899 /2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 16899 OF 2014
|Coram: Her Honour Judge Grace Chan in Chambers (not open to public)
|Date of hearing: 24 - 27 January 2017
|Date of petitioner’s written closing submission: 6 February 2017
|Date of respondent’s written closing submission: 7 February 2017
|Date of petitioner’s written reply closing submission: 13 February 2017
|Date of respondent’s written reply closing submission: 13 February 2017
|Date of judgment: 21 July 2017
(Relocation & Access)
1. There are 2 applications before me in this trial which concerns a 5-year old boy, who is the only child born within the wedlock of the petitioner wife (“mother”) and the respondent husband (“father”), namely:
(1) the mother’s summons dated 24 December 2015 for holiday access to take place in Shenzhen, China (“Access Summons”); and
(2) the father’s summons dated 2 March 2016 for relocating the son with him to Australia permanently (“Relocation Summons”).
2. It is the mother’s case in the Access Summons that the father has been denying her of her right to have liberal access to the son in Shenzhen where she now lives and works, in contravention to their agreement embodied in a consent summons which was made into a consent order dated 12 March 2015 (to be elaborated further below). The father initially raises his objection to the Access Summons on the major ground that China is a non-Hague country, and that the son is still small to travel to and fro between Shenzhen and Hong Kong. He is of the view that access in Shenzhen is just an option and is subject to his consent that the son can be removed out of Hong Kong. It is his stance (in the case that the Relocation Summons is not permitted) that access in Shenzhen can only take place from time to time upon his consent on special circumstances and the mother’s undertaking to return the son to Hong Kong.
3. In relation to the Relocation Summons, the father says that he has a genuine need to move back to Australia due to his business commitment, as his family has invested in a big property re-development project in Sydney which is worth over AUD 15 billion. He needs to station in Sydney personally to run/manage the project, which, due to his inability to fly over to Australia on a frequent interval to supervise the progress for the sake of taking care of the son in Hong Kong, has already been delayed. The mother opposes the Relocation Summons. While she does not doubt that the project in Sydney is a genuine one, she does not believe that it is necessary for the father (and thus the son) to leave Hong Kong for good to live in Australia. She is of the view that the proposed relocation is a continued act of the father in obstructing her access to the son.
4. Nevertheless, it is fair to note at this stage that despite her objection to the Relocation Summons, the mother has not asked for variation of the care and control arrangement of the son, nor has she requested that the current access frequency be increased.
5. At the time of this trial, the parties have not spent many years in Hong Kong. The father and the son have lived in Hong Kong only from the end of 2013 (for about 4 years), while the mother does not live here at all. She is based in China. The mother accepts that the father does not have family and friends in Hong Kong, though his mother (“paternal grandmother”) would come to see their son from time to time. Hence, their connection with Hong Kong is limited.
6. The parties themselves were born in Shantou, China. They both come from wealthy families which have businesses in China and/or Australia, including property development projects.
7. The father is now 35 years old. He is the eldest son of his parents. When he was 16, he emigrated to Australia with his family, and he received his secondary and university education there. Upon obtaining a master degree in property development in Australia in 2006, he worked there for his family business for a while, before he moved back to work in Beijing.
8. The mother is now 33. She received her secondary education in Singapore before she went to university in Australia in 2002. After completing her university education in 2006, she joined her family business in China.
9. They started courtship in 2007 and got married in December 2009, after which they lived and worked in Beijing. Their only son was born in June 2012 in Hong Kong. After his birth, the whole family continued to live in Beijing. In 2013, the parties made a joint decision to move to Hong Kong in order to provide a better living environment, both in terms of education and air quality, for the son. The move to Hong Kong would also provide the convenience to the mother to work for her family business in Shenzhen but with a view that she would eventually stop working.
10. It is indisputable that the mother has all along been a career woman who devotes quite a lot of her time to her family business. The father was not happy about this. He repeatedly requested her to give up her career and leave her family business to be a full time mother.
11. By the end of 2013, the father and the son moved from Beijing to live in Hong Kong. However, things did not turn out as smoothly as one would expect. The mother found it difficult to delegate her responsibilities in her family business to the others. Hence, she spent less than half of her time in Hong Kong with the son. This led to the inevitable result of dispute and conflict between the parties.
12. Subsequently in December 2014, the mother petitioned for divorce on the ground of “unreasonable behaviour” of the father. One of her complaints were that he demanded her “not to work even part-time”. Decree absolute was granted on 3 August 2015. The marriage by then lasted for about 6 years.
The Consent Order
13. The parties signed a consent summons on 12 March 2015 to settle custody and ancillary relief matters globally. The said consent summons was made into a consent order on 3 June 2015 (“Consent Order”).
14. I shall not dwell on the terms of the ancillary relief matters, as they are irrelevant to this hearing, save that I wish to point out that there is no provision for child maintenance in the Consent Order.
15. On custody matters, the Consent Order provides that the father shall have sole custody, care and control of the son, while the mother enjoys reasonable access (§1 of the Consent Order). The said consent terms are said to be upon the following acknowledgment and agreement of the parties:
(1) The parties acknowledge and accept that it will be in the best interest of the son to remain in the sole custody, care and control of the father with liberal access to the mother including staying access during weekends and school vacations when, upon reasonable notice including the time of returning the son to the father, she may spend time with the son in Hong Kong or Shenzhen;
(2) The parties acknowledge and agree that the son shall not be taken out of Hong Kong or his place of residence without the consent of both parties;
(3) The parties acknowledge and agree that they will keep each other informed of the welfare, progress and development of the son and will use their endeavours to maintain an open dialogue on issues concerning his upbringing.
The current child arrangement
16. As said above, the son has just turned 5 years old. He is studying kindergarten in Hong Kong which teaches dual language, ie English and Putonghua.
17. Since the son came to live in Hong Kong at the end of 2013, he has been taken care of by the father with the assistance of maid(s) and/or the paternal grandmother. The mother is currently based in Shenzhen; she does not live in Hong Kong. She comes to Hong Kong once every other week for access to the son. Occasionally, she is able to see the son in Shantou when the father brings him to visit his extended family. The father has to accept that up to this trial, he has never acceded to the mother’s request for access to take place in Shenzhen.
From March 2016 onwards, this court has put in place an interim access arrangement like this. The mother can have staying access to the son in Hong Kong on the 2nd and 4th week of each month from Saturday 10 am to the following Monday when she takes the son back to school. This court has also made directions on long holiday staying access of Easter and summer holidays of 2016. By consent, the parties removed the son out of Hong Kong for holidays for Easter and summer holidays of 2017.
Applicable legal principles
18. The relevant legal principles on a relocation case are set out clearly in the judgment of the Court of Appeal in SMM v TWM  4 HKLRD 37, where Cheung JA referred to the guidelines/approach laid down by Butler Sloss P and Thorpe LJ in the English authority of Payne v Payne  1 FRL 1053. His Lordship had this to say:
“20. Payne is based on the earlier decision of Poel v. Poel  1 WLR 1469. In Re G. (Leave to remove)  1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.
21. The principles in Payne can be summarised as follows:
(a) 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)