FM v. LWY

FCMC 9664/2022

[2025] HKFC 109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 9664 OF 2022

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BETWEEN

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J U D G M E N T

(ACCESS AND LEAVE FOR GENERAL REMOVAL FOR VACATION)

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1.  This is the trial of access arrangement for 2 children of the family, with the elder son aged 9 and the younger daughter aged 7.

2.  By consent, joint custody had been granted, with care and control be granted to the petitioner father. Interim defined access was granted to the respondent mother and had been varied several times (details see paragraph 22 below). The latest interim defined access was granted on 6 May 2024 (details see paragraph 32 below). The mother asks for more access time with the children. As parties cannot agree on access arrangement at the children dispute resolution (“CDR”) hearings on 18 October 2023 and on 6 May 2024, the matter has to be adjourned for trial, with 3 days reserved.

3.  Shortly before the pre-trial review hearing (“PTR”) on 12 August 2024, the father filed a summons, applying for general leave be granted to him to temporarily remove the children out of the jurisdiction of Hong Kong from time to time for the purpose of vacation (“General Leave Application”). The General Leave Application was returnable at the PTR, which was opposed by the mother. Directions were given for the parties to file affirmation. Both parties asked for the General Leave Application to be heard at the trial, knowing that the court would have to hear evidence and make determination without the assistance of a social investigation report. I directed that the General Leave Application be dealt with at this trial of access, with ruling to be given in this Judgment.

4.  The 2 matters I have to determine in this trial are:-

(a)  Access arrangements of the children with the mother

(b)  Whether general leave be granted to the father to temporarily remove the children out of the jurisdiction of Hong Kong from time to time for the purpose of vacation

Background

5.  The father was born in 1984 in Hong Kong and was 40 years old at trial. He was the youngest among three siblings in his family. He migrated to New Zealand with his family in 2002 and completed his education, with a bachelor degree in Business Administration. He had worked in a bank in New Zealand, and later had worked in Shanghai and Hong Kong, with last title as a director of a private bank.

6.  From 2016 to about 2019, the father had worked in the mother’s family company, and subsequently with some post-sale matters of the company. From about 2021, the father worked as a manager of a business consultant company and was allowed to work from home with flexible working hours of 20 hrs a week, while he continued with his further study. Since January 2023, the father started a new business venture, being a managing director of a private coaching swimming operation. His role being a manager of a business consultant company had transitioned to a part-time basis, which he continued to work from home with flexible working hours of about 20 hrs a week.

7.  The mother was born in 1984 in Hong Kong and was 39 years old at trial. She has a younger brother. The mother had attended a foundation course in a high school in Singapore and later got a degree in Fashion Merchandising in a university. The mother had worked as a secretary for a couple of years and then ran a Chinese restaurant in Hong Kong for several years. She later sold her business in about 2017.

8.  In about early 2022, the mother joined an education group, which is a charitable organisation. She reported that she attended an individual training from a child psychologist by online learning once a week from December 2021, which focused on her parenting skills and communication skills with the children. She also attended short courses, such as flower arrangement.

9.  The father and the mother got acquainted in about early 2012 and they got married in January 2014.

10.  Their elder son was born in 2015, now aged 9, studying Year 5 at an international school in Tuen Mun and their younger daughter was born in 2017, now aged 7, studying Year 3 at the same international school.

11.  The family had lived in the maiden home and rented flats for the first few years of their marriage. In 2018, the family moved to their self-owned flat in Shatin, being their former matrimonial home.

12.  When the Father was working for the mother’s family company from 2016 to about 2019, he usually had to work in Guangzhou on weekdays. According to the mother, after she sold her restaurant business in 2017, she became a full time housewife, taking care of the family and the children, with the assistance of 2 domestic helpers (with one of them called E) and a driver (according to the mother, that was the maternal grandmother’s driver).

13.  In about mid 2020, the leukaemia condition of the maternal grandmother relapsed and the mother accompanied her to Beijing for medical treatment in September 2020, together with the mother’s younger brother and a maid. The mother had donated bone marrow for transplant to the maternal grandmother in Beijing.

14.  The mother stayed in Beijing for about nine months and returned to Hong Kong on 27 June 2021.

15.  Upon the mother’s return to Hong Kong, according to the father, he and the son discovered intimate communications between the mother and her boyfriend via WeChat, and the mother admitted her extra-marital affairs with her boyfriend in Beijing. The father left the former matrimonial home with the children and E, the long-term helper, who had been taking care of the children and remained particularly close to the daughter.

16.  According to the mother, upon her return to Hong Kong from Beijing, without her consent, the father accessed her mobile and retrieved copy of her intimate video and photos. He further showed the video to the children, who were frightened. The father also asked the children to choose between the father and the mother, and he left the former matrimonial home with the children.

17.  The parties received marital counselling. In August 2021, the father signed the tenancy agreement for a flat in Tuen Mun (“Tuen Mun Flat”) with a monthly rental of about HK$58,000. The family, including the mother, moved in.

18.  According to the father, in October 2021, he discovered that the mother broke her promise and still maintained contact with her boyfriend. On 4 October 2021, the mother moved back to the former matrimonial home in Shatin, while the children stayed behind with the father in the Tuen Mun Flat.

19.  According to the mother, on 4 October 2021, the father requested the mother to leave the Tuen Mun Flat and he also sent the mother’s intimate video to the maternal grandmother. She reluctantly left so as to avoid conflict in front of the children. Since then, the mother has lived separately from the father and the children, and she has difficulty in having access of the children.

20.  On 19 October 2021, the father petitioned for divorce (“Old Case”) on grounds of unreasonable behaviour and adultery of the mother. The mother contested the main suit.

21.  According to the mother, on about 26 October 2021, when the father returned to the former matrimonial home to get things for himself and the children, the parties had dispute and ended up with the mother calling the police.

22.  Upon the court order at the hearing on 18 November 2021, interim care and control of the children was granted to the father. Interim defined access was granted to the mother, which had been varied at different hearings as follows :-

(a)  on 16 December 2021 in the Old Case

(b)  on 28 April 2022 in the Old Case

(c)  on 9 December 2022 in this case

(d)  on 12 December 2023 in this case

(e)  on 6 May 2024 in this case (with details of the orders see paragraph 32 below)

There has been no staying access during weekdays and weekends. Staying access has been granted for specific periods during some long school holidays.

23.  From 24 March 2022 to 20 July 2022, the mother was away from Hong Kong to Beijing.

24.  By the order of the court at the hearing on 30 June 2022, the father was ordered to file a new petition for divorce on the ground of consent one-year separation.

25.  From 10 to 14 October 2022, the mother was away from Hong Kong to Singapore.

26.  On 11 October 2022, the father filed the new petition (ie. the present case) based on separation since 5 October 2021 and the mother consents to divorce.

27.  Since October 2022, the father’s girlfriend has started residing at the Tuen Mun Flat with the father and the children, after about 3 months of dating with the father.

28.  Since February 2023, the mother has rented a flat near the Tuen Mun Flat, of about 450 square feet partitioned into a living cum sleeping area, an open kitchen and a restroom. The mother reported that it was rented with a monthly of about several thousand dollars, for access during weekdays to take place there, in order to minimise the travelling time during access. On Sunday, the mother would take the children back to the former matrimonial home in Shatin, with the monthly mortgage adjusted upwards to about HK$110,000.

29.  Decree nisi was granted on 19 April 2023.

30.  By consent, it was ordered at the hearing on 12 December 2023 that joint custody be granted to both the father and the mother, with care and control be granted to the father. Interim defined access regarding long school holidays had been granted to the mother. The usual removal restrictions of the children were also included in the order.

31.  At the hearing on the same day, it was ordered by consent that the mother shall pay HK$35,000 per month to the father as interim interim periodical payment for the two children.

32.  By the order given at the hearing on 6 May 2024, interim defined access be further varied to as follows :-

“UPON the Respondent [mother]’s undertaking to the Court and to the Petitioner [father] (i) to be punctual in access and if there are unforeseen circumstances resulting in her lateness, to inform the Petitioner as soon as possible and (ii) to inform the Petitioner at least 7 days in advance of her absence from access if she has to travel out of Hong Kong (collectively the “Undertakings”), the Respondent shall have interim access to the children as follows until further order :-

(a) Weekday access on every Tuesday and every Thursday from after school to 7:00 pm and for the avoidance of doubt “school includes after class activities at school which are to finish by 4:30 pm;

(b) Weekend access on alternate Sunday from 9:00 am to 7:00 pm starting from 2 June 2024 and on alternate Sunday from 9:00 am to 2:00 pm starting from 9 June 2024;

(c) Half of the long holidays, ie. Christmas, Lunar New Year, Easter and Summer school holidays, including :-

(i) 2 nights staying access for each period of Christmas, Lunar New Year and Easter and 4 nights staying access for each period of summer school holidays. 2 day access can be connected to become 1 night staying access (from 10:00 am of an access day to 8:00 pm of the following access day which represents 2 day access and 1 night staying access) and there be no consecutive night staying access;

(ii) Day access be arranged from 10:00 am to 8:00 pm;

(iii) Exact days of the above access to be discussed and agreed by both parties with consideration of the Children’s scheduled activities”

33.  It was further ordered in paragraph 2 of the same order dated 6 May 2024 that “where the Social Investigation Officer has any concern(s) over the staying access, she may inform the court any time by way of a memo for directions”.

34.  On 24 June 2024, the father filed a summons, with affirmation in support, for the General Leave Application.

35.  In August 2024, the father, Ms A, the children and the domestic helper moved to another flat in the same estate, with a monthly rental of about HK$60,000. There are 4 bedrooms in the flat, with the children each having their own bedroom..

Evidence

Social Work Officer’s evidence

36.  Ms Leung, the Social Work Officer (“SWO”), gave evidence in Court and relied on the following reports (collectively “Reports”) and adopted as evidence in chief :-

(a)  Social Investigation Report dated 23 February 2022 (“1^st Report”)

(b)  Updated Social Investigation Report dated 18 September 2023 (“2^nd Report”)

(c)  Second Updated Social Investigation Report dated 23 September 2024 (“3^rd Report”)

37.  The Reports were prepared pursuant to different orders from the court ordered at different stages of the proceedings.

38.  In the 1^st Report, the SWO recommended joint custody to both parents, with care and control to the father and reasonable access to the mother, including, in gist, the following :-

(a)  Weekday access on every Tuesday and every Thursday from after school to 7:00 pm.

(b)  Weekend access on every Sunday from 9:00 am to 7:00 pm. If the children are willing to stay overnight, weekend access be extended gradually in terms of duration and frequency.

(c)  Half of long school holidays, with exact dates to be discussed and agreed by both parents, with consideration of the children’s scheduled activities.

(d)  Special day access on the Mother’s Day, the mother’s birthday, the children’s birthdays in every odd year, and alternate single day of school public holidays.

(e)  Phone access or video access to each child once a day on non-access days.

(f)  All pick-up and drop off points to be agreed between the parties.

(g)  Flexibility be given to both parties on the above access arrangement.

39.  In the 2^nd Report, the SWO recommended joint custody to both parents, with care and control to the father and defined access to the mother, with some minor adjustment from the previous recommendation including, in gist, including the following (with the adjustment underlined) :-

(a)  Weekday access on every Tuesday and every Thursday from after school to 7:00 pm.

(b)  Weekend access on alternate Sunday from 9:00 am to 7:00 pm and on the other Sunday from 9:00 am to 2:00 pm. [There is the exclusion of “if the children are willing to stay overnight, weekend access be extended gradually in terms of duration and frequency”]

(c)  Half of long school holidays, with exact dates to be discussed and agreed by both parents, with consideration of the children’s scheduled activities; day access be arranged from 10:00 am to 8:00 pm.

(d)  Special day access from 9:00 am to 7:00 pm on the Mother’s Day, the mother’s birthday, the children’s birthdays in every odd year, and alternate single day of school public holidays.

(e)  The mother should give prior notice to the father or the children as early as possible if she has any difficulty to turn up on time.

(f)  All pick-up and drop off points to be agreed between the parties.

(g)  The children can call the mother whenever they like.

(h)  Flexibility be given to both parties on the above access arrangement.

40.  In the latest 3^rd Report, the recommendations for the defined access are quoted as follows :-

“(a) Weekday access on every Tuesday and every Thursday from 15 minutes after school to 7:15 pm and can be extended to 7:30 pm if the children would like to have dinner with the mother;

(b) Weekend access on alternate Sunday from 9:00 am to 7:00 pm starting from 3.11.2024 and on alternate Saturday from 7:00 am to the following day at 2:00 pm starting from 9.11.2024; if necessary and agreed by both parents, access in two weeks be merged to become one access, ie. weekend access on alternate Saturday from 7:00 pm to the following day at 7:00 pm to the following day at 7:00 pm and there be no access in the subsequent weekend;

(c) Half of the long holidays, ie. Christmas, Lunar New Year, Easter, Mid-term and Summer school holidays, including :-

(i) 2 nights staying access for each period of Christmas, Lunar New Year and Easter and 4 nights staying access for each period of summer school holidays. 2 day access can be connected to become 1 night staying access (from 10:00 am of an access day to 8:00 pm of the following access day which represents 2 day access and 1 night staying access) and there be no consecutive night staying access;

(ii) From Christmas 2025 onwards, 3 nights staying access for each period of Christmas, Lunar New Year and Easter and 6 nights staying access for each period of summer school holidays and overnight staying access can be extended to 2 consecutive nights if the children agrees;

(iii) Day access be arranged from 10:00 am to 8:00 pm;

(iv) Exact days of the above access to be discussed and agreed by both parties with consideration of the children’s proposed and scheduled activities.

(d) Special day access from 10:00 am (or after school on school days) to 8:00 pm on Mother’s Day, the mother’s birthday, the children’s birthdays in every odd year, Winter Solstice in every even year and alternate single day of school holidays;

(e) The mother should give prior notice to the father or the children as early as possible if she has any difficulty to turn up on time;

(f) All pick-up and drop off points at the father’s abode or to be agreed between the parties

(g) The children can call the mother whenever they like;

(h) Flexibility be given to both parties on the above access arrangement;

(i) If the parents have any difficulty in access arrangement, they can seek assistance from social workers of Specialised Co-parenting Support Centre which serve the district that the children reside.”

The father’s case

41.  The father gave evidence during trial. He relied on a total of 9 affirmations (with some about custody, care and control, and also access arrangement; with some about leave for temporary removal for vacation and General Leave Application; with some about the injunction application taken out by the mother) and Form J as evidence in chief.

42.  The father called his girlfriend, Ms A, to be a witness, who relied on her affirmation as evidence in chief. Ms A’s evidence was about how she assisted the father in the taking care of the children, and the harmonious relationship she has with the children.

43.  It is the father’s case that he agrees to all the recommendations from the SWO in the Reports, and he has been fully complying with all the orders for access. He is of the view that as the children have expressed discomfort and reluctance in staying access, and indicated that they are unwilling to have more access with the mother, the children’s views should be considered and less access should be granted. Nonetheless, the father is willing to agree to the recommendation by the SWO, to allow more access to the mother step by step.

44.  The father explained that he had in fact agreed to giving the mother more access in the previous CDR hearing, but the mother did not take the offer.

45.  Further, the father is of the view that given the past events, how the mother behaved and the interaction between the mother and the children, the SWO’s recommendation should be adopted, allowing more access to the mother in a step-by-step way.

46.  In the closing submissions, Mr. Surman has summarised a list of aspects arising from the evidence for the court’s consideration of the mother’s evidence, showing that her application for more access than what is recommended by the SWO at this stage and her opposition to the father’s General Leave Application has no merit and should not be accepted by the court. These aspects are in fact allegations made against the mother, which she denied, and I will consider them in the analysis section below.

The mother’s case

47.  The mother gave evidence during trial. She relied on a total of 8 affirmations (with some about custody, care and control, and also access arrangement; with some about leave for temporary removal for vacation and General Leave Application; with some about the injunction application taken out by the mother) and Form J as evidence in chief.

48.  The mother called her friend, Ms Y, to be a witness, who relied on her affirmation as evidence in chief. Ms Y is a friend and colleague of the mother. Her evidence is mainly about (a) what she observes of the loving behaviour and dedication of the mother for the children during the access time when she was present; and (b) how the father behaved in a controlling way when she was also present at meal time back in the past with her husband, the mother and the father.

49.  The mother asks for more access time than those recommended by the SWO in the 3^rd Report. The gist of the mother’s case is that despite the rough time in the past with the children, the relationship is improving, and it will further improve with more access time with the children.

50.  The mother’s proposal, instead of the SWO’s recommendation, should be adopted, for the following main reasons :-

(a)  The SWO is biased in favour of the father and too much weight has been put on the wishes of the children.

(b)  The father clearly continues to ostensibly hold bitter feelings and resentment towards the mother, which is supported by the various unfair and biased accusations against the mother through the trial, including the way the mother was cross-examined and the strong words used in counsel’s submissions. The resentment towards the mother has directly or indirectly contributed to the children’s hostility and resistance towards the mother.

(c)  The failure of the SWO to consider the father’s resentment towards the mother and how that may have affected the children’s wishes and feelings.

(d)  In this context, the court should consider how to assist the children to remove or lessen their hostility and resistance towards the mother. Adopting the mother’s proposal for more access arrangement is the answer, as the relationship has been improving, as time goes and with more time to be spent between the mother and the children.

(e)  The mother’s proposal is reasonable.

51.  To substantiate the mother’s case, Mr. Leung had summarised the allegations against the father in the submissions, which I will further consider in the Analysis section below.

52.  In order to counteract the influence of the father towards the children, it is the mother’s case that her proposal of more access arrangement should be accepted by the court.

53.  Mr Leung, Counsel for the mother, submits that the mother proposes the following access arrangement for the children:-

“(1) During school term, the mother shall have weekday access on every Tuesday and Thursday from after school to 8:00 pm. For the avoidance of doubt, “school” shall include after-class activities at school which are to finish by 4:30pm;

(2) During school term, the mother shall have weekend access in two stages and on a Week A/Week B basis:

(a) For stage 1 (starting from November 2024 until 31 August 2025):

(i) on Week A, staying access from Saturday 7:00 pm to Sunday 7:00 pm; and

(ii) on Week B, day access on Sunday from 9:00 am to 7:00 am;

(b) For stage 2 (1 September 2025 onwards):

(i) on Week A, staying access from Friday after school to Sunday 2:00 pm; and

(ii) on Week B, day access on Sunday from 9:00 am to 7:00 pm;

(3) The father and the mother shall equally share the long holidays, ie. Christmas and New Year, Lunar New Year, Mid term break, Easter, and Summer holidays with the father having the first half of the holidays in odd years, and the second half in even years, and the mother having the first half of the holidays in even years, and the second half in odd years;

(a) During the mother’s share of Christmas and New Year holidays, Lunar New Year holidays and Easter holidays, she shall have 4 nights of staying access for each holiday;

(b) She shall also enjoy staying access during half of each mid-term school break, and in any event, she shall have no more than 3 overnight access during each mid-term school break.

(c) During the mother’s share of the summer holidays, she shall have 10 nights of staying access;

(d) Each staying access shall be of 2 consecutive nights which shall consist of 3 days of visiting access and 2 nights of overnight access starting from 10:00 am on the first day to 8:00 pm on the third day;

(e) For the mother’s visiting access during her share of the school long holidays, her access shall take place from 10:00 am to 8:00 pm;

(4) The parties shall alternate the Children’s single day school holidays and all single public holidays. The mother shall have visiting access from 10:00 am to 8:00 pm;

(5) The mother shall have day access on special occasions including the Children’s birthdays in odd years, Winter Solstice in even years, the mother’s birthday (4 November) every year and Mother’s Day every year from 10:00 am (or after school if it is a school day) to 8:00 pm;

(6) The mother shall have 15-minute video call with the children at 7:30 pm (Hong Kong time) during her non-access days on Monday and Friday. The children should also be allowed to call the mother whenever they want;

(7) If the children of if the mother cannot attend access on a particular day, on the basis that the mother shall have provided at least 24 hours’ notice in advance if she is not able to attend access, there should be make-up access for the mother within 2 weeks thereafter. The exact dates of such make-up access are to be agreed between the father and the mother;

(8) For the mother’s access, the mother shall pick up the children at the father’s home or by mutual prior agreement. Upon the conclusion of the mother’s access, the father shall pick up the children at the mother’s home or by mutual agreement; and

(9) The father shall not arrange activities for the children during the mother’s access time and the mother shall be free to arrange her own activities with the children during her time with the children.

54.  It is the mother’s evidence that the father has been difficult, rigid and controlling, leaving her no room for discussion about children’s matters, eg. about the mother’s choice of the dates of long holiday access, and about the mother’s arrangement of the extra-curricular activities during her access time.

The legal principles

55.  In relation to the application for orders for custody, care and control and access of children of a child of family, and any matter about the upbringing of a child, it is set out in section 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, which states that :-

“(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;”

56.  The general legal principles governing such applications are set out in s. 3 of the Guardianship of Minor Ordinance, Cap. 13, which states that :-

“(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;”

57.  In addition, reference is also made to the “welfare checklist”, with some of the items mirror the checklist to be found in the English Children Act 1989. Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdiction, there are a number of factors, which generally speaking need to be taken into account or considered, when determining children matters. The “welfare checklist” is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating, inter alia, the care and control and also access matters, and the best interests of children generally. The checklist includes the following factors :-

(a)  the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  The likely effect on the child of any change in the child’s circumstances;

(e)  The child’s age, maturity, sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  The range of powers available to the court under this Ordinance in the proceedings in question.

(l)  Any other fact or circumstance that the court thinks are relevant.

58.  I will consider those factors that are relevant. However, I do not intend to go through them point by point. Instead, I shall make general reference to some of the most relevant ones in my consideration.

59.  For the General Leave Application, the general principles governing applications concerning children, as set out in section 3 of Cap. 13 also apply.

Analysis of evidence

60.  The parties have gone through difficult times during these proceedings. As submitted by Mr. Surman in his Opening, there were 15 previous hearings for these proceedings. Although joint custody to both parties, with care and control be to the father have been agreed, the parties cannot agree on access arrangement despite 2 previous CDR hearings.

61.  The issue of temporary removal for vacation had been discussed at CDR, but no agreement could be reached, and the father has to resort to formal application, requesting the court to make a ruling for the “General Leave Application”.

62.  Throughout trial, there are various allegations against each other (which I will consider in later paragraphs below) which is not unexpected, given the background of this case as I have summarised above and given the fact that the parties cannot even agree on a joint chronology.

63.  It should be pointed out that in the parties’ jointly signed Statement of Agreed Issues in Dispute dated 4 October 2024, the parties have not identified any factual issues for the court’s determination. They have only identified 12 items which require my ruling for this trial :-

(1)  Weekday access to mother

(2)  Weekend access to mother

(3)  Long holidays (ie. Christmas, Lunar New Year, Easter, Mid-term school breaks, and summer school holidays) access to mother

(4)  Special day access to mother

(5)  Single day holidays and single public holidays access to mother

(6)  Non-access days communication

(7)  Pick up arrangements

(8)  Make-up access

(9)  Prior notification by each party to the other party for lateness

(10)  7-day prior notification by mother to father for no show due to travel

(11)  Arrangement of activities during access

(12)  Whether general leave be granted to father to travel with the children out of jurisdiction

64.  I will consider all evidence, circumstances of the case and all relevant factors, and to consider in the best interest of the children, what the care arrangements should be and whether the General Leave Application should be granted to the father.

The father’s stance, including the allegations against the mother

65.  For the father’s case, I refer to paragraphs 41 to 46 above.

66.  The father is agreeable to all recommendations made by the SWO. He is of the view that as the SWO’s evidence and recommendations are in the best interest of the children, they should be given full weight and should be accepted by the court. On the other hand, the proposals of the mother were not made in the best interest of the children and should not be accepted by the court.

67.  The father has further made many allegations against the mother, which have been summarised by Mr. Surman in his closing submissions to support his stance that the mother’s proposal should not be accepted, including mainly the following :-

(a)  The mother has not been a hands-on mother and she had been lying to the father and the children.

(b)  The mother refused to provide travel movement records to show how frequent she is out of town.

(c)  The mother had extensive periods of time out of Hong Kong, including :-

(i)  between September 2020 and July 2021, the mother was away to Beijing for about 10 months; and

(ii)  between March 2022 to July 2022, the mother was away to Beijing for another 4 months.

Other than the time necessary to accompany the paternal grandmother, the mother had spent time with her boyfriend or for her own interests, instead of priotising the children’s needs.

(d)  The father has made every effort to include and arrange access for the mother, but there were instances that :-

(i)  the mother did not turn up for access for the whole day;

(ii)  there was a time when the mother chose to wait for the repairman to fix the fridge and did not attend the access; and

(iii)  the mother flew out of town, for example going to Singapore, instead of attending the access

(e)  The mother reported the maid, E, and the father to the Immigration Department, complaining that E was “working illegally for the father”, resulting in a raid by the immigration department to the father’s home for a house search, which terrified the children. According to the father, E had always been the maid taking care of the children and was especially close to the daughter. When the parties separated, E stayed with the father and the children, continue taking care of the children and supporting the daughter emotionally. According to the father, the mother had ulterior motive, as from the mobile message between the mother and E captured, it could be shown that the mother was not a hands-on mother and had been telling lies.

(f)  The mother reported to the police on about 26 October 2021, alleging that she did so “because the father asked her to replicate her mother’s signature to transfer shares” in the company, resulting in a raid by the police to the father’s home, which terrified the children. The complaint to the police is baseless, as there is no subsequent criminal charge against the father.

(g)  The mother disclosed matrimonial proceedings to a Mr. Y, a close family friend of the mother (“Uncle Y”), leading to Uncle Y applying for an ex parte injunction against the father in the High Court for an entirely separate and unrelated business matter. Having to respond to these proceedings, the father could no longer undertake his scheduled overseas trip with the children.

(h)  The mother has multiple change of lawyers, showing her awkwardness and her difficult personality through her relationships with others.

(i)  The mother applied for legal aid, intending to delay the proceedings, despite the sufficient financial means of the mother.

(j)  The mother’s repeated late payment for MPS for the children shows her unwillingness to support the children and to put their interests first.

(k)  The mother’s refusal or being very difficult and unco-operative to let the father travel overseas with the children.

68.  The mother, either during trial when being cross-examined or through her counsel, Mr. Leung, replied in the following ways about the allegations against her :-

(a)  some of the allegations were denied and they were false allegations against the mother;

(b)  some of the allegations were irrelevant to this trial regarding children matters;

(c)  some of the allegations were past events dated back in 2020 and 2021, or even earlier. It is exaggerating and unfair to use past events, or independent incidents when the mother had not been doing too well to conclude she was not a hands-on and dedicated mother. Even with the time the mother was in Beijing, she did not abandon the children. That was during COVID time and the mother had constant communication with the children via the mobile and she bought them gifts etc from Beijing;

(d)  the mother did lie to the father about an incident that she flew to Singapore for exploring business opportunity, simply saying that she was not available for access, but she did not lie to the children. The reason why she lied to the father was to avoid trouble;

(e)  with some of the allegations and how the events happened, they were not caused by the mother;

(f)  Mr. Leung submitted that with all these allegations, it is clearly shown that the father has such negative views towards the mother that he could possibly be passing on the negative views to the children, affecting how they feel about the mother and their views towards access arrangements.

69.  Even I am not ruling on these factual allegations, the last point above about whether the father’s negative views might have influenced the children’s views and feelings will be further considered below, as it may affect my consideration of how much weight to be placed on the children’s views.

The mother’s stance, including the allegations against the father

70.  For the mother’s case, I refer to paragraphs 47 to 54 above.

71.  In the opening submissions of the mother, when summarising the behaviour of the father, Mr. Leung submitted that the father’s conduct “can only be described as alienating of the children”.

72.  Alienation is not one of the factual disputes raised for this trial. Mr. Surman submitted that parental alienation was never raised at any previous hearings. Upon my request for clarification, Mr. Leung confirmed that he is not asking for determination of whether there is parental alienation, but he submitted that the hostility conduct and resentment attitude of the father towards the mother had negative impact on the children, affecting their feelings for the mother and their views about access, which the court should not undermined.

73.  As summarised by Mr. Leung in the closing submissions, the mother has made various allegations against the father’s hostile conduct and resentful attitude, including :-

(a)  The father’s resentment shown in how he framed his case against the mother, including the repeated use of the word “abandonment”, using independent instances of the mother not attending to the children personally to wrongly accuse that the mother had not been a hands-on, devoted or dedicated mother.

(b)  The father’s discouraging influence over the children. Mr. Leung submitted that “due to the father’s strong feeling that the mother is irresponsible, petty, nasty, malicious, selfish, uncooperative, and awkward as a person, as well as children-abandoning, non-dedicated and incapable as a parent”, the father has a tendency to present the mother to the children in a negative light or frame events in an unfair manner against the mother to the children. Examples including the following :-

(i)  The father blaming the mother for their own disagreements or inability to reach agreement as to travel matters.

(ii)  The father “badmouthing” the mother in front of the children for the incidents happened on about 26 October 2021.

(iii)  The father making the children choose between the father and the mother, with incidents happened on 30 July 2021, 4 October 2021, 26 October 2021 and during the access time on 5 December 2021.

(iv)  The father’s discouraging comments to the children about access.

(v)  Setting the son’s Apple watch alarm during the time of access with the mother.

(vi)  The father’s deliberately not informing or involving the mother in the discussion with the children on his girlfriend moving in with the children.

74.  The father, either during cross-examination or through the submissions by Mr. Surman, replied in the following ways :-

(a)  the father has been a hands-on father assisted by a domestic helper, taking care of the children well since the mother no longer live with the children when she left for Beijing in 2020;

(b)  the father is of the view the mother “abandoned” him and the children, as that was how he truly feels, with the fact that the mother did leave Hong Kong for Beijing for 9 months in 2020 and 2021 and another 4 months in 2022. Even knowing that the paternal grandmother’s condition at a time of COVID in those 2 years, the father is of the view that the mother has spent much more than necessary time out of Hong Kong (putting her own or others’ interests before her interest in the children), which is supported by the fact that the mother had affairs with her boyfriend in Beijing;

(c)  the father stated that he and the children have moved on, and hoping that the mother can participate in the children‘s lives more in positive ways;

(d)  the children have been well taken care of, which is shown in how they behave and how they are doing in school. This is also shown in and supported by the Reports;

(e)  the father being a competent parent, knows how to communicate well and attend to the needs and feelings of the children (including spent time to join in the children‘s activities). He has a structured and disciplined live style and he even takes on and has completed child-related course called “Positive Discipline programme” through distant learning, and came a Certified Positive Discipline Parent Educator. This is shown and supported in the Reports;

(f)  the mother, though with limited access time, still does not show enough effort or show how she treasure the time with the children, eg. waking up late, being late for access (especially initially which is now improving now), directing driver to pick up, instead of driving the children herself, going for trip or for other reasons and has to cancel access. Even the mother has reasons to do so and even the mother loves the children very much, the effect of all these on the feeling of the children affects their views on access, which has nothing to do with the father, and that is why increase in access has to be step by step, having regard to the children’s views and feelings.

75.  In view of all these allegations against each other, there is no need for me to make factual determination, but these are background information for my reference. There is no point in finger pointing of what had been done wrong or not good enough in the past. The allegations will be relevant if they affect my consideration of best interest of the children for access arrangement and for the General Leave Application. It is under this context, with these allegations between the parties as stated above that I have to consider and make determination for this case.

76.  I have to regard the best interests of the children as the first and paramount consideration and in having such regard, I shall give due consideration to (a) the wishes and feelings of the children (having regard to the age and understanding of the children, and to the circumstances of the case); and (b) all material information, including all the Social Investigation Reports.

The children’s views and wishes

77.  SWO had interviewed the children at different occasions when she prepared the 3 Reports. She had included in her Reports the children’s views and wishes, and she had observed the interaction of the children with the mother and with the father respectively on different occasions. I have considered especially the following paragraphs in the Reports :-

(a)  In the 1^st Report, paragraphs 26 to 29 about the interaction; paragraphs 42 to 44 about the children’s views and wishes

(b)  In the 2^nd Report, paragraphs 24 to 27 about the interaction; paragraphs 34 to 40 about the children’s views and wishes

(c)  In the 3^rd Report, paragraphs 24 to 27 about the interaction; paragraphs 36 to 47 about the children’s views and wishes

78.  It is noticed that as time passes, the feeling and relationship of the children towards the mother has improved, but the children are still expressing their wish that they do not prefer to have increased access, in particular increased staying access, with the mother. When the children expressed their views, as recorded in the Reports, the children had also given reasons.

79.  The children are now aged 9 and 7. At the time when the 1^st Report and the 2^nd Report were made, they were even younger. I have to consider their understanding of the questions put by the SWO at the time of interview. Further, I have to consider whether they had been influenced or affected by the father as alleged.

80.  With the 3^rd Report, I have been provided with the updated information about the children and the SWO’s observation about them. In paragraph 22 of the 3^rd Report, the son was observed to have joined various extra curricula activities at school. His “overall academic performance was commendable, reflecting his dedication and active engagement in class activities and discussions…… He also got good results in foundation subjects with excellent engagement particularly in science and computing showing his strong problem-solving skills and technical expertise…… He had made excellent progress throughout the academic years, showing a strong commitment to the school community.”

81.  In paragraph 23 of the 3^rd Report, the daughter was observed to have joined various extra curricula activities. She “achieved good results in her core subjects and very good to excellent results in foundation subjects and specialist subjects…… She was descried to be a very curious, sociable and confident pupil who was not afraid to share her ideas.”

82.  I am of the view that the children has now reached the age and maturity of understanding the questions put to them by the SWO and in expressing their views and wishes. I see no reasons why their views and feelings should not be given much weight, subject to my further consideration and analysis below of the allegation by the mother that the father’s negative feelings against the mother might have influenced the children.

83.  Further, the children’s views and wishes are not conclusive, as I have to consider what access arrangements will be in their best interest before making the ruling.

Social Investigation Reports and the SWO’s evidence

84.  The same SWO has prepared a total of 3 Reports for these proceedings, and she has been with this case for about 3 years. She has started working in the Social Welfare Department since 1998 and has been compiling Social Investigation reports for the family court since about 10 odd years ago. She is an experienced SWO and has given evidence in court in many instances. After being cross-examined by both parties, the SWO maintained her recommendations as in the 3^rd Report.

85.  Mr. Leung invited the court not to accept the evidence of the SWO, including the following main reasons :-

(a)  There was insufficient considerations on the possible effects on the father’s negative influence on the children and the SWO has been placing too much weight on the children’s wishes

86.  Mr. Leung quoted examples in his closing submissions, which I do not repeat here, as I am not convinced by his submissions. Given the background and long history of this case, it is impossible for the SWO to include everything, including some incidents suggested by the mother should be included, in the Reports. Under cross-examination, the SWO confirmed that she had considered those incidents. Having considered the entirety of the SWO’s evidence as a whole and in view of the background of the case, I am of the view that not having recorded some incidents as alleged by the mother does not undermine the credibility of the SWO or implicate she has not considered sufficiently.

87.  In view of the answer of the SWO under cross-examination, they have to be considered in context. I am not convinced that the SWO had been advocating for the father and had been biased against the mother as alleged.

88.  While the SWO had placed much weight on the children’s wishes, I am not convinced that she had placed too much weight. The children had expressed preference of no increase in the access with the mother, including staying access, but the SWO had recommended more access time than what the children prefer. The SWO had explained in her Reports about the reasons in reaching her conclusion and recommendation, which I accept to be a fair and reasonable analysis, with the children’s best interest in mind.

(b)  The SWO has been prioritising the interests of the father on the access times, in other words, the SWO is bias in favour of the father

89.  For this reason, Mr. Leung had given some examples, which I do not agree. First, the SWO considered giving more time to the father to spend with the children because the son expressed that as he is going to boarding school next year, he wishes to see the father more. However, “there is no mention at all from the SWO that the mother should also have an equal opportunity to spend time with the son before he left for boarding school. After all, it will also be in the best interest of the son to maintain a relationship with the mother as recognised under the equality principle”. Best interest of the children is not to be viewed only in strict equal division of the time between the parents. As explained above, not mentioning in the Report does not mean the SWO has not considered sufficiently. The best interest of the children has to be viewed in context in view of the background of the case.

90.  Second, Mr. Leung commented that the SWO said she did not recommend more overnight access because there is a need to give the father more time to play with the children. The answer of the SWO has to be viewed in context. The SWO further explained that the father being the one with care and control, even if he has more time with the children during weekdays, they are different from time spent during weekends with activities other than focusing on school work. The best interest of the children in this case has to be viewed in context with their daily routine, schedule and activities at school, weekday and weekends activities and interaction and relationship with each of the parent all along and how each parent can satisfy the children’s physical, emotional and educational needs.

91.  Mr. Surman submitted that it had not been raised in any of the previous hearings that the SWO has been biased, as shown in the way she prepared her Reports.

92.  Considering the evidence of the SWO as a whole and in the context, I am not convinced that she had been prioritising the interests of the father on the access times. I am not convinced that the SWO has been biased in favour of the father. It could be shown in the Reports that when the mother has improvements, the SWO did report accordingly, for example, when the mother’s being late for access has improved, and in paragraph 13 of the 3^rd Report, the SWO commented that “the mother demonstrated her commitment in arranging various activities for the children during access”.

93.  I accept that the SWO has been the eyes and ears of the court, and she has properly and carefully considered all relevant factors when preparing for the Reports and making recommendations. I give full weight to her evidence.

94.  But I will not adopt the recommendations blindly. In view of some of the recommendations, I am of the view that some adjustments should be made in the interest of the children, which I will explain below.

Whether the father has influenced the views and wishes of the children

95.  With the way the mother is cross-examined and the strong words used in Mr. Surman’s submissions, in which counsel must be acting under client’s instructions, I have to consider the strength of Mr. Leung’s submissions that the father’s negative views, conduct and attitude towards the mother may possibly have influenced the children intentionally or subconsciously.

96.  According to Mr. Leung, this is exactly the reason why more time should be given to the mother and why the mother’s suggestions should be adopted. With respect, after careful consideration of the evidence and background of the case, I cannot agree to these submissions.

97.  The evidence has to be considered in context, and I have the following observations :-

(a)  Given the background of this case, with the father’s case that the mother having an affair during the 10 months she was in Beijing, discovered in her mobile by the father and the son, the mother admitted the affairs to the father, parties tried counselling, the father eventually discovered that the mother did not keep her promise to cut ties with the boyfriend, any strong words used in the heat, particularly in 2021, although not acceptable, is understandable in the circumstances, without ruling on the allegations. What I have to consider is whether such comments or utterances had been used repeatedly subsequently not in the heat, but intending to harm the relationship between the mother and the children.

(b)  It is a matter of fact that some comments or utterances had been used in the past, especially in 2021 by the father against the mother, but there are also comments made by the mother against the father negatively, as recorded by the SWO that the son recalled the mother calling the father a “thief”. It should not be an exercise of finger-pointing.

(c)  Some strong words have been used repeatedly by the father, like “abandonment”, which the father explained that was his true feeling towards the mother, given the fact that she had been physically away for those periods in Beijing.

(d)  More importantly, I have to consider the age and maturity of the children. As explained above, I am of the view that the children are expressive. From how they are doing, I accept that the father and the children have moved on, despite some incidents in 2021 when the parties separated. Especially for the children, their relationship with the mother has improved. For example, as shown in the Reports, the mother found that the children had less resistance towards taking photos with her. The SWO also found that the children also enjoyed their access time with the mother.

(e)  There was full compliance of access arrangement as ordered by the court by the father. The defined access, as per ordered by the court, has been carried out smoothly.

(f)  When giving evidence, the father has stated that he “would like nothing more than to have [the mother] increasing her participation in the lives of our children in positive way for them.”

(g)  The father has been providing a weekly welfare report to the mother on every Sunday since October 2022, to ensure clear communication and transparency about the children’s welfare, and sharing with the mother about the lives and activities of the children.

(h)  Both parents could access to the children’s school internal websites for receiving information about school events, so that they could attend the school activities with the children.

98.  It is not in dispute that there is close and good relationship between the father and the children. I have also considered how the father can satisfy the physical, emotional and educational needs of the children, which is shown in their interaction, as explained in the Reports and I give full weight.

99.  I cannot deny that the father’s views towards the mother, if made expressly, may sub-consciously affect the children. It is fair to say, from the background of this case, some of the father’s comments of the mother (especially about the way the mother communicated with the children) may stem from huge difference in the living style of the parents, and the children are more inclined to the father’s way of living an active and disciplined life. But I am not convinced that the father intends to harm the relationship between the mother and the children.

100.  With the reasons explained above, I am not convinced that the comments from the father against the mother have influenced the children to the extent that it should be a determining factor for me to follow the mother’s proposal of the extent of access to be increased to at this stage.

101.  I accept that both parents love the children very much, and I accept that maintaining good relationship with both parents will be beneficial to the children. More time and more access given to the mother may further improve her relationship with the children, but the question is how much more and at what stage.

What access arrangements should be ordered

102.  Mr. Leung submitted in the opening that “the mother accepts and totally understands that the children still may experience unease towards increased access time with her, but this can be resolved by introducing a phased and progressive increase in the mother’s access time so that the children can get used to spending more time with the mother gradually”, which I appreciate and agree. The question is increase to what extent will be in the best interest of the children.

103.  There are revised access arrangements as suggested by the SWO in the 3^rd Report. The recommendations by SWO was not agreed by the mother, as she suggests a bigger step forward. It is in this context and also by adopting my analysis above that I have to consider and make a ruling on the different aspects of the access arrangement.

104.  I refer to paragraph 63 above, listing out the 12 items identified and agreed by the parties to be ruled by me. Items (4) and (5) have been agreed.

105.  Before I make the ruling, I have considered especially the following :-

(a)  Both the father and the mother agree to engage social worker(s) in co-parenting centre to facilitate access, in particular the long holiday access, as parties need further and continual discussion about the activities to be arranged for the children. I am of the view that the willingness to seek help from professional in communication and trying to resolve different views about children’s matter can help maintaining flexibility, which is beneficial to the children.

(b)  Both confirm in trial that they confirm they will not badmouth the other party in front of the children.

(c)  I accept both love the children very much and willing to continue communicating with each other despite their difference is views.

(d)  The father confirm will continue providing the mother with the weekly welfare report.

(e)  Having considered the background of this case, especially in view of the needs and daily routine of the children, and the evidence and submissions from the parties, I am of the view that some flexibility be given in the access arrangement (if it is mutually agreed with some minor varying after further discussion in future), and yet in a defined access arena to let the parents follow would be in the best interest of the children, as both parents can be involved in more communication about children’s matters which can be dynamic.

106.  For item (1), ie. weekday access, the difference is whether the end time should be extended from 7:00 pm to 8:00 pm or just 7:15 pm (or extended to 7:30 pm if the children would like to have dinner with the mother). I have considered the parties’ stance, the SWO’s position and also the children’s wishes and reasons. I accept the children’s reason of hoping to go back home earlier on weekday is justified, but at the same time, if having dinner with the mother during weekday, 7:00 pm would be too rush. I am of the view that it is in the children’s interest to order the end time at 7:15 pm, but there has to be at least once every 2 weeks during weekday access that the end time should be at 7:30 pm.

107.  For item (2), ie. weekend access, in view of the previous staying access and in particular to the children’s wishes and their schedule, I am of the view that taking it step by step as recommended by the SWO is in the children’s best interest.

108.  For item (3), ie. long holidays, the mother proposes a defined first half and second half of the long holiday between the parties, while the father is of the view that the exact dates to be discussed and agreed by both parties with consideration of the children’s proposed and scheduled activities. In view of the previous staying access and in particular to the children’s wishes and their schedule, I am of the view that taking it step by step as recommended by the SWO about the number of staying access is in the children’s best interest, but (a) adjustment will have to be made in terms of the timing of the 2 phrases; and (b) for the 2^nd phrase, “if the children agrees” should be deleted. Further, I keep the exact dates to be agreed by the parties, as children’s activities schedule can be considered and accommodated as much as possible. I repeat paragraph 105(e) above.

109.  For item (6), ie. non-access days communication, given the background of this case, I agree with the SWO’s recommendation that the children can call the mother whenever they like, instead of the mother’s proposal to have fixed video access during non-access days.

110.  For item (7), ie. pick up arrangement, I do not see the mother’s proposal more in the best interest of the children, compared to the SWO’s recommendation. Factually, the mother has a driver whom she can instruct to help with access. I therefore adopt the recommendation as in the 2^nd Report, ie. all pick-up and drop off points at the father’s abode or to be agreed between the parties.

111.  For item (8), given the schedule of the children, I am of the view that the proposal of the mother that there be make up access within 2 weeks is not in the best interest of the children. I therefore will not order such make-up access, but the parties are at liberty to consider and agree on further access, eg. making up during long school holiday.

112.  For items (9) and (10), I notice that they have been covered under the preamble of the order dated 6 May 2024, which had not been discharged and are still in force. I do not think the proposal of the mother to further revise is necessary.

113.  For item (11), ie. arrangement of activities during access, I agree that in principle, the parties should not fix activities at the time when the children will be with the other side, but discussion of the children’s activities and schedule is necessary, so that there can be flexible arrangement, in the best interest of the parties.

General Leave Application

114.  For these proceedings, the usual removal direction for travel had been granted, as follows :-

“AND IT IS DIRECTED that the children be not removed from Hong Kong without leave until they attain the age of 18 respectively but provided that if either parent do give a general undertaking to the court to return the children or either of them to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the children or either or them from Hong Kong for any period specified in such written consent.”

115.  The father filed summons for General Leave Application. In the application, the father asks for general leave be granted to him to take the children out of the jurisdiction of Hong Kong from time to time for the purpose of vacation and he confirms that he is willing to make the following undertaking to the court and to the mother that :-

“(a) he will return the children to Hong Kong at the end of any holiday trip or temporary absence from Hong Kong or when called upon to do so by the court;

(b) he will inform the Respondent [mother] at least 7 days in advance of any overseas trip with the children and provide information about the trip including :-

(i) travel arrangements – the date(s), destination(s), flight/vessel numbers and schedules and levy;

(ii) the hotel or accommodation address(es); and

(iii) contact details;

(c) he will provide the Respondent [mother] with photos of the children taken during every trip;

(d) if any trip clashes with the Respondent [mother]’s defined access time, he will give make-up access on the date(s) to be mutually agreed in consideration of the children’s schedules”

116.  The father further confirms that the mother “can call the children during the trip out of Hong Kong”. The application is opposed by the mother.

117.  Mr. Surman drew the court’s attention to the following to support the application, including :-

(a)  The father has care and control of the children, in effect since the mother left Hong Kong for Beijing in September 2021, was granted interim care and control of the children by the court since 18 November 2021 and was granted the “final” care and control of the children since the order dated 12 December 2023.

(b)  Since the COVID lock down, the father has had 3 overseas trips with the children, with each of them a “fight” to obtain the mother’s consent.

(c)  On each occasion of the 3 overseas trips, the children had a great time with the father, and were returned to the jurisdiction of Hong Kong safe and sound, and on time.

118.  Mr. Surman emphasised that the affirmations filed for the General Leave Application has shown the difficulties the father has faced with the mother’s unco-opeartive attitude. Even with the mother’s conditions (such as calling the children during the overseas trip and the father providing photographs of the trip), which the father agrees, the mother still opposes, showing that the mother is being so unco-operative to the extent that she has not put the children’s interests first. Her opposition is simply without basis and it is simply impossible for the children to continue to be held hostage to the mother’s intransigence.

119.  The mother opposed to the application and disagreed that she had unreasonably withheld her consent. Mr. Leung submitted that the reasons of the mother’s opposition include the following :-

(a)  It was the father who failed to provide details to the mother for her informed consideration of the father’s requests that prompted the chain of events the father now complains about the difficulties caused.

(b)  The mother has given consent upon requests to a number of the father’s proposed trips, including the New Zealand trip in 2023, the Japan trip in 2023 and the Seoul trip in August 2024, when the proper particulars and documents were provided.

(c)  The mother has never attempted to deny the children the opportunity to travel. Far from it, she has tried to work and communicate with the father to come up with mutually agreeable and workable holiday plans. It was the father’s own refusal to communicate that has led to what he now tries to complain alleging caused by the mother’s refusal to consent.

120.  Mr. Leung emphasised that the usual removal direction is necessary to ensure that the parties communicate with each other and co-ordinate to make holiday plans that are in the children’s best interest. The mother is, in principle, willing to give her consent provided some undertakings are given by the father. I will not repeat the parts parties can agree. The main differences, as I identified, are :-

(a)  The mother asks for the father providing the flights and hotel booking confirmations, flight itinerary, accommodation address and contact details at least 14 days before the departure and the mother shall then confirm whether she agrees to the father’s proposed overseas trip within 3 days from the date she received the relevant documents from the father. Should the mother fails to do so, she will be taken to have agreed with the father’s proposed overseas trip; The father is of the view that providing confirmation is unreasonable and impractical, providing booking details should be sufficient. The father thinks the mother’s suggestion is simply showing she is not co-operating.

(b)  The mother alleges that in the discussion with the father, the father has been causing difficulties when communicating and discussing with the mother about the make up access time. There will be make up access time, but the mother has no say as to when the make up access can be, which is entirely decided by the father. There has been no mutual discussion and agreement.

(c)  The parties insist that the other side is the one being unco-operative and not putting the children’s best interest as priority.

121.  I notice there are numerous correspondence exhibited in the affirmations the parties relied on for the application. Many of them include multi matters, not just about removal of the children for vacation. Having considered the affirmations filed for the application, including the exhibits, I am of the view that there is no need to make a ruling or going into detail as to who is right or who is wrong in this matter, or rule on any specific letter, or about whether the wife has been unco-operative in failing to give a definite answer whether agreeable to give consent for the children to travel overseas.

122.  What I have to consider is not only who has been unco-operative and who is there to blame, the children’s best interest should be the paramount consideration.

123.  I have considered especially the following :-

(a)  Travelling overseas is generally good and beneficial to the children.

(b)  Even without the benefit of a Social Investigation Report about the views from a social work officer and also the views of the children ascertained, I am confident to say that travelling overseas for the children for these proceedings are beneficial to them. From the previous overseas trips, I am also confident to accept that the children had a good time spent overseas with the father.

(c)  This application is made by the father, for general leave be granted to him only.

(d)  I have not lost sight of the background and circumstances of this case, that the mother does not have weekend staying access. The staying access during long school holidays are limited and it is premature for the mother to ask for “equality” and fairness that general leave be granted to her if I approve the father’s application at this stage.

(e)  Even if granting leave may save trouble for the father for all the difficulties he may face, and the extra time and effort spent communicating with the mother, children’s best interest is my paramount consideration. Children’s best interest to be able to travel overseas can still be preserved, with timely application made to the court if the parties cannot reach agreement eventually, if the General Leave Application is not granted.

(f)  Particularly in view of the background and circumstances of this case, especially the allegations the parties have against each other and the difficulties in agreeing to the arrangement of the long holiday access (with the mother asking for defined 1^st half and 2^nd half to be shared between the parties, as there have been difficulties communicating with the father; while the father asking for exact dates to be agreed by the parties, saying that the parties can reach agreement by themselves), I am of the view that agreeing on the exact dates of the long school holiday will definitely have an impact on whether the dates for the father’s proposed overseas’ trip can be agreed, whether will fall on access dates of the mother, to agree on make up access and what activities to be arranged when the children are with either parent.

(g)  With the evidence before me, I do see challenges that the parties have to face in trying to reach the agreement for the exact dates of the long school holidays. Grateful that parties during trial have confirmed they are willing to engage the social workers in co-parenting centres to facilitate access, especially to discuss the exact dates of the long school holidays, in view of the children’s activities and schedules. I am of the view that while the parties discuss the exact dates of the long school holidays, it is high time for them to plan ahead the overseas holidays well in advance, especially for long trips.

(h)  That is the reason why I am of the view that the undertaking proposed by the father that only 7-day notice be given to the mother is insufficient, in the best interest of the children. The father can easily dictate the access time of the long school holidays, without sufficient communication with the mother if the application is granted.

(i)  For shorter overseas trip, I agree that more flexibility can be given and shorter notice would be sufficient.

124.  With the reasons aforesaid, I am of the view that granting general leave to the father at this stage does not serve the best interest of the children and the application be dismissed.

Conclusion

125.  With the reasons aforesaid, I make the following orders:-

A.  Upon the parties’ confirmation to the court and to each other that :-

a.  they will not badmouth each other in front of the children

b.  they will engage social worker(s) in co-parenting centre to facilitate access and communicate for related children’s matters if they encounter difficulties in reaching agreement

B.  And upon the father’s confirmation to the court and to the mother that he will continue providing the mother with the weekly welfare report of the children

(1)  All previous interim defined access be discharged.

(2)  The mother be granted defined access of the children as follows :-

(i)  Weekday access on every Tuesday and every Thursday from 15 minutes after school to 7:15 pm and be extended to 7:30 pm at least once every 2 weeks;

(ii)  Weekend access on alternate Sunday from 9:00 am to 7:00 pm starting from 22 June 2025 and on alternate Saturday from 7:00 am to the following day at 2:00 pm starting from 29 June 2025; if necessary and agreed by both parents, access in two weeks be merged to become one access, ie. weekend access on alternate Saturday from 7:00 pm to the following day at 7:00 pm to the following day at 7:00 pm and there be no access in the subsequent weekend;

(iii)  Half of the long holidays, ie. Christmas, Lunar New Year, Easter, Mid-term and Summer school holidays, including :-

(a)  4 nights staying access for each period of summer school holidays and 2 nights staying access for each period of Christmas, Lunar New Year, Easter and Mid-term. 2 day access can be connected to become 1 night staying access (from 10:00 am of an access day to 8:00 pm of the following access day which represents 2 day access and 1 night staying access) and there be no consecutive night staying access;

(b)  From summer 2026 onwards, 6 nights staying access for each period of summer school holidays and 3 nights staying access for each period of Christmas, Lunar New Year, Easter and Mid-term, and there be overnight staying access of 2 consecutive nights;

(c)  Day access be arranged from 10:00 am to 8:00 pm;

(d)  Exact days of the above access to be discussed and agreed by both parties with consideration of the children’s proposed and scheduled activities.

(iv)  Special day access from 10:00 am (or after school on school days) to 8:00 pm on Mother’s Day, the mother’s birthday, the children’s birthdays in every odd year, Winter Solstice in every even year and alternate single day of school holidays;

(v)  The parties shall alternate the children’s single day school holidays and all single public holidays. The mother shall have visiting access from 10:00 am to 8:00 pm on alternate single day school holidays and single public holidays.

(vi)  All pick-up and drop off points at the father’s abode or to be mutually agreed between the parties;

(vii)  The children can call the mother whenever they like;

(viii)  The above access arrangement can be varied by mutual written agreement between the parties.

(3)  The access matter, including especially how the parties communicate for (a) long school holiday access; (b) activities to be arranged for the children; and (c) leave to travel for vacation be under a supervision order of 18 months. A progress report be submitted at least 1 month before the end of the supervision period.

(4)  The father’s General Leave Application be dismissed.

Costs

126.  As children matters have been involved, I order that there be no order as to costs for the access of the children and for the General Leave Application, including all costs reserved. This is a costs order on a nisi basis, which shall be made absolute within 14 days.