LACHY v. YC

FCJA 2057 / 2016

[2019] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NUMBER 2057 OF 2016

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JUDGMENT
(Sole custody/joint custody, care and control, access or joint care and control/shared care)

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Introduction

1.  There are cross applications before the court that now require adjudication. They concern the practical arrangements to be put in place for the only child of the family, a little girl, O, who was born on the XX January 2014 and who is now nearly 5 ½ years of age. The 1^st Applicant father wishes to have sole custody and care and control of O, with reasonable access to the 2^nd Applicant mother. As will be seen below, under his proposal, O would have two overnights per week during term time with the mother. The mother for her part seeks an order for joint custody, but with care and control to herself and reasonable access to the father. Under her proposal O would have five overnights every two weeks with the father – namely every Wednesday night and either Friday and Saturday night or Sunday night, on a two week rolling basis.

2.  At present the care of the child is split between the parties during term time on a more or less equal basis as set out in the court order dated the 10 February 2017 where it is stated as follows:

7.  The care of the child of the family namely, OPSL(“O”), a girl born on XX January 2014 shall be shared between the parties on an interim basis as follows:-

-   O shall be in the care of the 1^st Applicant [father] from Sunday, 12^th February 2017 at 9:30 a.m. until Wednesday 15^th February 2017 when the child is taken to school at 1:55 p.m.

-   O shall be in the care of the 2^nd Applicant [mother] from Wednesday, 15^th February 2017 after school at 4:55 p.m. until Sunday, 19^th February 2017 at 9:30 a.m.

-   O shall be picked up by the 1^st Applicant at the 2^nd Applicant’s home and the 2^nd Applicant shall pick up O on Wednesday after school.

-   These arrangements shall continue until further order.

-   O shall have contact with the parent with whom she is not staying each day at 7:30p.m. by Skype, Video WhatsApp or telephone

Consequently, O currently spends three nights per week with the father and four nights per week with the mother and approximately 3 ½ days with each of her parents during term time.

3.  O is currently in K2. Her parents have been litigating over her care for most of her young life, but not withstanding that she appears to be thriving and doing well at Kindergarten. The intent is that she shall go into K3 next year and that she shall proceed to primary school with effect from September 2020, when she will be 6 ½ years old.    

4.  The court is therefore concerned with the medium to longer term arrangements for O, in a situation where both parents are working and each requires some support in caring for O. The father is now 41 years of age and the mother is 35. They have no other children. As will be seen the father has re partnered, but the mother is currently single.

The Fact Finding hearing

5.  Unfortunately, much of the difficulty in this case has arisen because of the mother’s allegations primarily against the father’s girlfriend, Ms N, which necessitated a Fact Finding hearing. On the 21 November 2017 a judgment was handed down in that respect and reference should be made to that judgment as necessary.

6.  In summary though, the mother had accused Ms N of sexually abusing O, or in the alternative of behaving in a way that was “sexually inappropriate”. It became clear, as the case progressed, that the mother had no evidence to support her claim and she was warned several times of the possible cost consequences if she chose to proceed. Notwithstanding that she did not withdraw her allegations and a trial ensued.

7.  The mother also behaved in other ways that were inappropriate and the following is also recorded at paragraph 14 of the judgment:

   14.  Following the hearing in court on the 10 February 2017 the mother then posted a copy of the undertaking given by the father on Facebook, contrary to the implied undertaking on confidentiality. She did this for the first time on the 11 February 2017. Facebook took the post down on the 18 February and the mother reposted it on the 20 February. It was finally removed sometime after the 23 February after the father sent the mother a pre action letter for contempt. Ms. N also wrote to the mother directly expressing her concern about this. I am told that the mother did not respond.

8.  At the end of the day I completely exonerated Ms. N. I accepted that she had not touched O in a sexual way or behaved infront of her in a way that might be considered inappropriate. At paragraph 29 I said that I thought that the mother probably stuck with her story because she thought it would help her win sole custody and care and control of O (although as can be seen, infact the mother is now seeking joint custody of O). Consequently, I ordered that the mother pay the costs of the Fact Finding hearing on a party and party basis, notwithstanding the fact that this was essentially a child related matter. Reference can also be made to my Ruling dated the 29 November 2018 in that respect. The mother sought leave to appeal that Ruling. Leave to appeal was not granted either by myself or by the Court of Appeal.   

9.  Prior to this, and immediately following the separation, it seems that the parties were able to conduct themselves in a more civilized manner and consequently they were probably more able to effectively co parent O. It is though against this background that I am now asked to determine the arrangements for O in the medium to longer term. Consequently, one of the issues that the court now needs to consider is whether or not the relationship between the parties is so severely damaged that an order for joint custody is no longer feasible? In either event, i.e. whether there is an order for sole or joint custody, it is clear that the parties will need to consciously “parallel parent” as opposed to “cooperatively co parent” going forward.  

Background to the marriage

10.  In the Fact Finding judgment dated the 21 November 2017 I set out the background to the case as follows:

Background

3.   … The parties are both ethnically Chinese – but the father was born and grew up in the United Kingdom, whereas the mother was originally from the Mainland. They married on the XX March 2009 in Hong Kong and, as I have said, O was born on the XX January 2014. It seems that they have spent most of their married life based in Hong Kong, although the mother in particular has travelled frequently for business. The father is a barrister and the mother has her own precious gem stone and jewellery companies.

4.   It seems that unhappy differences arose between the couple and they separated, although the date of that separation does not appear to be agreed. In any event a joint application for divorce was filed on the 14 June 2016. In that application it is stated that the father shall have the custody and care and control of the child with reasonable access to the mother. Minutes of Agreement dated the 19 May 2016 were also filed and again this document stated that it was agreed that the father would have custody and care and control of the child.  This document is signed by both parties.

5.   It is the father’s case that he was the primary carer of the child at that time and that O was living with him and that he cared for her with the assistance of his mother and a domestic helper. This is denied by the mother who maintains that she has been the primary care taking parent of the child since birth. She also refers to the parties sharing O’s care.

6.   In any event, on the 12 January 2017 the decree nisi was pronounced. On the same day the court received a joint affirmation from the parties in which it was stated that it was agreed that the mother would now have custody of O with reasonable access to the father. A further document stated that it was agreed that the father would pay child maintenance of HK$10,000 per month. Given the differing agreements the court adjourned the question of both custody and ancillary relief. Eight days later the father filed a summons seeking interim custody of O and claimed in his supporting affirmation that the mother had misrepresented the situation to him, particularly with respect to the employment of a domestic helper and the mother’s business commitments. This summons was returnable before the court on the 6 March 2017. On the 7 February 2017 the father issued an ex parte summons on notice seeking inter alia interim custody and care and control of O. This application was returnable before the court on the 10 February 2017. It was at this hearing that the mother’s allegations first came to light. An interim order was made on that occasion splitting O’s time between the father’s household and the mother’s household. Further the father undertook to ensure that Ms N had no form of contact and did not see O, whilst O was in his care and the mother undertook to ensure that her new dog was kept secure whilst O was in her care. As indicated above the Fact Finding hearing was set down for trial on the 13 April 2017 after the mother was given an opportunity to withdraw her allegations. On that occasion she was also warned that she might face an indemnity costs order in the event that it was found that she had “made up” these allegations. On that occasion the father also sought to vary his undertaking with respect to Ms N. This was opposed by the mother and the court did not intervene further pending the hearing preferring to err on the side of caution. Undertakings were also given by both parties not to discuss the proceedings with the child.  

11.  During the trial there was much discussion about each sides understanding of the divorce process and the arrangements that they had originally agreed to, and entered into, for O. I do not intend to go into that here, or to make any findings of fact in that respect, especially as the court is now primarily concerned with the future arrangements for O, as opposed to any original agreement for her care – or what was said or not said by each of her parents at the time of the separation and subsequent divorce. Suffice it to say that there was clearly some confusion over the terminology used, which was seemingly exacerbated by the fact that Cantonese is neither parties mother tongue.  

The issues

12.  The issuesto now be determined then are these:

1)   What practical arrangements should be put in place for O’s care during term time? In particular, should the current arrangement be maintained or should an alternative arrangement be put into place?

2)   For the avoidance of doubt what arrangement should be put in place for the school holidays?

3)   What formal orders should then be put in place for custody/joint custody, care and control/joint care and control/shared care and/or access?

4)   Are there any other orders/directions that the court should make at this juncture?  

The law

The law in Hong Kong

13.  The main provisions regarding children can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192 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-

(Amended 69 of 1997 s. 28)

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

14.  The general principles governing such applications are set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which states that:

GENERAL PRINCIPLES

(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;

List of factors

15.  In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. Although this list of factors has yet to find its way into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control, access, joint care and control/shared care and access and the best interests of children generally. The checklist states that the following matters should be taken into account by the court when determining matters of this nature:

(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)   (a broader formulation along the lines of) 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 is relevant.”

16.  It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire for the court and that it can assist in the decision making process.   

Case law    

17.  It was noted during the trial that despite being legally trained that the father did not appear to fully understand the concepts under discussion. It was of particular concern that he seemed to equate the notion of “custody” with “control”. Indeed, in his affidavit evidence and also in the Form J, the father referred a number of times, to “allowing” the mother to have access. For the avoidance of doubt therefore both parties should familiarize themselves with the leading Court of Appeal decision on the subject of terminology, namely PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. I do not intend to repeat all of what is said in that judgment, but given the way in which this litigation has developed, it seems to me that the parties should particularly take on board the comments made by the Hon Mr Justice Hartmann, JA, when he said as follows:

The concepts of ‘custody’ and ‘care and control’

28.   As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books.

29.   Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

30.   At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31.   The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare.  They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport.  A parent vested with custody has the responsibility of acting as the child’s legal representative.

32.   By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in molding the character of the child.  They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.

33.   We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts.  This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing.  The present case is a prime example.

18.  This case could also be said, to be another prime example of the misunderstanding that can sometimes ensue when discussing the issue of sole versus joint custody. It is of note that the father acknowledges that he wishes to have “sole custody” because he is concerned that without this the parties might simply continue to be involved in endless arguments about the appropriate arrangements for the child going forward. He said that if the parties could avoid at least one argument as a result of an order for sole custody, then in his view that would be worth it.

19.  The Hon Mr Justice Hartmann, JA also added as follows when discussing the notion of joint custody:

47.  It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.

…

Joint Custody: the proper approach

52.  Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional.  This is because it is accepted that, in principle, such orders are in the interests of children.

53.  In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt.  In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents.  The case before us is an example.

54.  In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody.  Nor is the fact that the parent to be given care and control does not agree.  Such orders look to the future.  They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55.  Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56.  In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57.  At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.

That then is one of the primary issues for the court when considering the issue of custody. Would an order for joint custody, which seeks in part to compel a certain level of co operation between the parties, only leave O more vulnerable?

20.  Both sides have also referred me to other case law which goes to support either the concept of sole or joint custody. These cases are all very fact specific. I accept that there are occasions when an order for sole custody becomes necessary given inter alia the very difficult relationship that exists either between the parents themselves, or between a parent and a child or perhaps because one or other of the parties has a mental health issue or their behaviours are nevertheless so extreme that normal interaction between them becomes impossible. The issue is whether or not this case falls into that particular category of case, especially given the unfortunate nature of the litigation to date.

21.  There are also other issues to consider, including the mother’s ability to care for O given her work commitments, which include frequent travel to Mainland China. This is an issue which the father refers to constantly and on which the Social Welfare Officer also relies.   

Each party’s proposals

22.  I asked the parties to consider their proposal in the alternative – i.e. their proposal for O’s care a) if the child was based with them and b) their proposal for her care, if the child was based with the other parent. It is of note that neither party proposed that the status quo should continue. 

The mother’s proposals

a)   If O is living primarily with the mother

1.   Joint custody of the child of the family, namely LOPS (“O”) with care and control to the Mother and defined access to the Father as set out below.

2.   Access during School term:

a.   Overnight Access from 6:30p.m. every Wednesday to every Thursday morning so that the Father takes O to school;

b.   Weekend Staying Access:

(1) for the first weekend, after school on Friday until Sunday at 11:00 a.m., with the Father’s undertaking to take O to extra-curricular activities on Saturdays; and

(2) for the second and weekend, from 11:00 a.m. every Sunday to Monday when O goes to school.

On a non-school day, the staying access will continue until 11:00 am.  The Father shall pick up O at the Mother’s residence and return O to the same on a non-school day.

School Holiday Access

3.   The Father do have 50% of the long school holidays (that is, Summer Vacation, Chinese New Year, Christmas and Easter) which will include the in-between weekday and weekend access as follows:

(1) Chinese New Year and Easter will be split 50-50 between the Father and Mother alternate as to who is to take the first half of each holiday.

(2) Summer holidays will be split 50-50 between the Father and Mother alternate as to who to take the 1^st half of each holiday.

(3) When O has an October break, the holiday will be split 50-50 between the Father and Mother alternate as to who to take the 1^st half of each holiday.

(4) Christmas holidays will be split 50-50 between the Father and Mother alternate as to who to take the 1^st half of each holiday.

(5) Subject to agreement between the parties, either party may take O out of Hong Kong during long school holiday;

(6) In the event that O has longer school holidays, alternate two weeks on - two weeks off.

4.   O to be with her Father on Father’s Days and the Father’s birthdays (16 December) and to be with her Mother on Mother’s Days and the Mother’s birthdays (12 November).

5.   Public holidays during School term to be alternated.

6.   Both parties do attend co-parenting counselling services.

7.   Each parent does have reasonable telephone, Skype or Facetime contact with O when O not in the care of such parent.

N.B. The Mother understands the following is not for this application; she would like to agree with the Father as to school一 (1) O continues with her current school (Kowloon Tong) and will attend full-day (O is able to continue with her current school until July 2020, but applications for her next school will have to be made by September 2019)

b)   If O is primarily living with the father

1.   During school term:

a. Overnight Access every Wednesday after school to Thursday morning, with the Mother to take O to school; and

b. Weekend Staying Access: after school on Friday until Sunday at 11 :00 a.m.

2.   School holidays:

The Mother do have 50% of the long school holidays (that is, Summer Vacation, Chinese New Year, Christmas and Easter) as follows:

(1) Chinese New Year and Easter will be split 50-50 between the Father and Mother alternate as to who to take the 1^st half of each holiday.

(2) Summer holidays will be split 50-50 between the Father and Mother alternate as to who to take the 1st half of each holiday.

(3) When O has an October break, the holiday will be split 50-50 between the Father and Mother alternate as to who to take the 1st half of each holiday.

(4) Christmas holidays will be split 50-50 between the Father and Mother alternate as to who to take the 1st half of each holiday.

(5) Subject to agreement between the parties, either party may take O out of Hong Kong during long school holidays.

(6) In the event that O has longer school holidays, alternate two weeks on - two weeks on.

3.   Day Access on Mother’s Days, the Mother’s birthdays and O’s birthdays.

4.   Both parties do attend co-parenting counselling services.

5.   Each parent does have reasonable telephone, Skype or Facetime contact with O when O is not in the care of such parent.

The father’s proposals

c)   If O is living primarily with the father

The 1^st Applicant be granted sole custody of the child of the family, namely LOPHS [“O”] (the “Child”) with care and control to the 1st Applicant and defined access to the 2nd Applicant as follows: -

a. The 2nd Applicant has staying access to the Child from after school Fridays until 9:30 a.m. Sundays; if any Friday is a public holiday or inset day, the 2nd Applicant shall pick up the Child from the 1st Applicant’s residence at 9:30 a.m.;

b. Dinner access from 5:00 p.m. to 7:30 p.m. every Wednesday;

c. The 2nd Applicant be entitled to staying access on half of long school holidays (that is, Summer holidays, Chinese New Year, Christmas and Easter) with alternative halves;

d. The Child shall have contact with the parent with whom she is not staying at 7:30 p.m. by Skype, video, whatsapp or telephone;

e. The 2nd Applicant shall have day access to the Child on her birthday and Mother’s Day;

f. The 2nd Applicant shall have staying access on alternative public holidays on Mondays to Thursdays which do not fall in long school holidays.

d)  If O is living primarily with the mother

The Applicants be granted joint custody of the child of the family, namely LOPS [“O”] (the “Child”) with care and control to the 2nd Applicant and defined access to the 1st Applicant as follows: -

a. The 1st Applicant has staying access to the Child from after school Fridays until 9:30 a.m. Sundays; if any Friday is a public holiday or inset day, the 1st Applicant shall pick up the Child from the 2nd Applicant’s residence at 9:30 a.m.;

b. Dinner access from 5:00 p.m. to 7:30 p.m. every Wednesday;

c. The 1st Applicant be entitled to staying access on half of long school holidays (that is, Summer holidays, Chinese New Year, Christmas and Easter) with alternative halves;

d. The Child shall have contact with the parent with whom she is not staying at 7:30 p.m. by Skype, video, whatsapp or telephone;

e. The 1^st Applicant shall have day access to the Child on his birthday and Father) s Day;

f. The 1^st Applicant shall have staying access on alternative public holidays on Mondays to Thursdays which do not fall in long school holidays.

23.  It was of some concern that the father wished to have sole custody if the child was primarily based with him but joint custody if the child was primarily based with the mother. It was not clear how it was more likely that he was going to be able to co operate with the mother if the child was based with her. The unfortunate sense was that he wished to have sole custody of O in order to ensure that he retained the upper hand when making all decisions about her care going forward and that he wished to retain some sort of legal foot hold in the unfortunate event that I allowed O to be primarily based with her mother.

The Social Welfare reports

24.  It is trite but worth repeating that recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. The reports are said to be the “eyes” and “ears” of the court.

25.  In this case the Social Welfare officer filed three reports dated the 28 March 2017, 22 June 2018 and the 4 February 2019 and she maintained her position throughout that the father should be granted sole custody and care and control of O, with defined access to the mother once per week for two nights, from after school on Friday until 9:30 am on Sunday morning. She added that if the Friday was a school holiday that the mother could pick O up from the father’s residence at 4:55 pm. She added that the school holidays should be divided equally between the parties. It seems that one of her main concerns in making these recommendations is the mother’s travel schedule.

26.  The father originally appears to have simply adopted the recommendations made by the Social Welfare Officer without question. He also accepted the suggestion that O would be best served by having one settled home base. Similarly, this proposition was put to the mother in the witness box and she also accepted it. As will be seen I do not necessarily accept that suggestion, especially given the fact that by all accounts it seems that O has adapted to living in two homes on a half weekly basis, seemingly without any significant difficulty.

27.  The Social Welfare Officer also produced a schedule setting out the frequency of the mother’s trips to China as follows:

Complied information on the frequencies of Madam Y’s Leaving HK

	Duration	Total number of days	Total number of days that Madam Y left HK	Total number of days that Madam Y left HK with O	Number of days that Madam Y left HK when O was under her care
1.	14/1/2014-13/1/2015	365	242 (66%)	93 (38%)	N.A.
2.	14/1/2015-13/2/2016	365	264 (72%)	56 (21%)	N.A.
3.	3/2016 (Parents separated) -7/2016 (Before O started schooling)	153	129(84%)	40 (31%)	N.A.
4.	8/2016(O started schooling – 9/2/2017 (Before Order granted)	194	108 (55.6%)	21 (19%)	N.A.
5.	10/2/2017 (Order granted) – 31/12/2017	344	168 (48.8%)	15 (8.9%)	52
6.	1/1/2018-31/12/2018	365	146 (40%)	20 (13%)	25

Total number of days per month that Madam Y left HK in 2018

Jan	Feb	Mar	Apr	May	Jun	Jul	Aug	Sept	Oct	Nov	Dec
14	15	9	18	20	7	7	14	3	8	6	25

28.  This will be discussed in more detail below. As will be seen I do not intend to fully adopt the Social Welfare Officer’s recommendations for reasons that will become clear in the body of the judgment. It is also of note that the father has moved away from seeking just a straightforward endorsement of the Social Worker’s recommendations, in that he also proposes that O should be able to see her mother mid week in addition to the overnight staying access at the weekends. It seems to me that in part that is a recognition that it might be quite difficult for O to move from seeing her mother for part of five days each week, (from Wednesday after school, Thursday, Friday, Saturday to Sunday morning) to only seeing her from after school on Friday to Sunday morning.     

Discussion

What practical arrangements should be put in place for O during term time? In particular, should the current arrangement be maintained or should an alternative arrangement be put into place?

The mother’s travel schedule

29.  Putting to one side for a moment the ramifications that arise out of the Fact Finding hearing and the highly conflicted nature of these proceedings (including each party’s allegations against the other, i.e. the fact that the mother accuses the father of drinking to excess and being quick tempered and the fact that the father accuses the mother of being malicious and untrustworthy), the other main point of contention relates to the mother’s travel schedule. It is clear that this is one of the main reasons why the Social Welfare Officer made the recommendations that she did. Consequently, I asked to see the Immigration records of both the parties and O. During the trial I repeatedly said that reference should be made to this as a primary source of evidence. Attached to this judgment is a schedule marked “A”, which is based on those immigration records and shows when the mother was away from Hong Kong for the period from March 2018 to the end of the year. It identifies which days she travelled and the approximate time that she was away from the territory. During this period O was with the mother from Wednesday after school until Sunday morning. O also attended all day school on Thursday and Fridays. It can therefore be seen from this schedule that the mother mainly travelled when O was not in her care. I have marked with an * those occasions when that does not appear to be the case. On some of those days the mother is seen returning to Hong Kong either in the late afternoon or early evening and she is likely to have been with O either later that day or the following morning before she went to school. On some occasion the mother is likely to have returned home before O as she seen returning to Hong Kong earlier in the day. On others it seems likely that the date fell over a school holiday in which case O may have been with the father in any event. But in total there are only 22 occasions which fall into this category out of a total of approximately 72 occasions when the mother left and then returned to Hong Kong. I accept therefore that the mother has been able to largely organize her work around her child care responsibilities.

30.  Mr. Egerton for the mother put it to the father that whereas the Immigration records are able to show conclusively when the mother left and returned to the territory, it is not similarly possible to assess when the father was truly available to care for O. I accept that to be the case. The father is a barrister and although he is also a door tenant there will of necessity be occasions when he is in court or having a conference with a client outside of court hours. Thus there must also be times during the week when the father is not able to take care of O himself and when she is scheduled to be in his care.

31.  It seems to me that a number of things follow from this analysis. Firstly, I accept that it is optimal for parents, as opposed to third party care givers, to take care of their own children. I also accept that where you have two full time working parents that the reality is that both parents will of necessity need to rely on others to help take care of their offspring.

32.  Consequently, it seems to me that a line can be drawn between their care of the child during the day and their care of the child overnight. Therefore, if either parent is away from Hong Kong overnight, it follows that the other parent should be given the opportunity to take care of O during that period of time. The mother has occasionally been away overnight as set out in the schedule. It is also acknowledged that on occasions she needs to travel to trade fairs and she also goes to Australia on a reasonably frequent basis as she sources many of her gems there, particularly opals. The father also says that although he is based in Hong Kong, very rarely he may also be required to go away for a short period of time e.g. to take part in a polo playing competition. In such circumstances, whenever such an occasion arises, the other parent should be given first right of refusal to take care of O. If the other parent, who is in Hong Kong, is unable to oblige, then the original caretaking parent, shall make whatever alternative arrangements for her care that she or he deems appropriate in the circumstances. This arrangement shall only apply if a parent is away overnight. Otherwise each parent shall make appropriate arrangements for O’s care when she is scheduled to be with them during the day time. I accept that both parents have made suitable arrangements to care for O when they are not available. 

The check list of factors   

33.  Reference can also be made to the checklist of factors as set out in paragraph 15 above.

The ascertainable wishes and feelings of the child concerned considered in the light of her age and understanding;

The nature of the relationship of the child with each of the child’s parents and with other persons

34.  O is still very young and it is difficult to attach very much weight to the views expressed by such a young child. It has been suggested by the Social Welfare officer that O does not like being left with the mother’s domestic helper and that she is closer to the father’s domestic helper and also to her paternal Grandmother. This is not accepted by the mother. I accept however that it is likely that O is close to both of her parents and to the father’s domestic helper who has helped take care for her since she was born and to the paternal Grandmother who has also been very involved in her upbringing, as she lives next door to the father. In such circumstances it is only natural that the child should be emotionally close to those adults. In contrast the mother was only able to employ a new domestic helper in 2017 and the maternal grandmother does not reside in Hong Kong, although she is a reasonably frequent visitor. I should add that it seems to me that the criticisms of the maternal Grandmother, by the father particularly in his written evidence, were wholly unnecessary and did nothing to assist an already fraught situation.   

The child’s physical, emotional and educational needs;

35.  The parties have different views with respect to O’s present and future education. As pointed out by the Social Welfare Officer, neither can be said to be entirely right or entirely wrong in that respect. O attends kindergarten at present. This is a half day program. The mother explains in her most recent Form J that O was offered an opportunity to attend a Multiple Intelligence Course run by the kindergarten, which includes a Cambridge English Course. This was for a further half a day, which would mean in effect that O would be attending full day school. The mother wished O to attend this course. The father did not. The net result was rather unsatisfactory in that O attended this course when she was in her mother’s care on Thursday and Fridays, but not when she was in her father’s care. An unfortunate situation also arose during the trial in that the child had been asked to take part in a test which was part of the Cambridge English course. The test was to take place during the father’s part of the week. The mother kept the father fully informed of the same, but it soon became clear that the father simply refused to interact or to respond to her. In the end I directed that the child be permitted to take the test. The teachable point to be taken from this however, is that regardless of how the week is to be divided up or what orders are ultimately put in place, there are inevitably going to be occasions when the parties will need to interact with each other and make decisions about something which affects O. The father’s behavior in this respect was somewhat concerning. He simply took the view that O should not be obliged to take the test because it was in his half of the week. 

36.  Longer term it is clear that the father wishes O to attend some form of international primary school where the medium of teaching is English. He is particularly concerned that O should not be exposed to the pressures of the local education system. It is not entirely clear what the mother’s preference might be, although she does seem to acknowledge that the parties may not be able to reach consensus in this respect (see paragraph 22 a) above – last paragraph).

37.  As a general observation I should like to reiterate that the issue of schooling did not form part of the present application before me. Judicial notice has though been taken of the fact that many international schools would expect their pupils to commence primary 1 when a child is 5 years of age. However, the local system would expect a child to join P1 after three years of kindergarten when the child is 6 years of age. I am not sure if this is likely to become an issue going forward.    

38.  As a general point, I accept that both parties are able to cater for O’s physical, emotional and educational needs.

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

39.  As indicated above, O’s care is currently shared between the parties on a more or less equal basis. The concern, notwithstanding the mother’s sometimes hectic travel schedule, is that reducing the amount of time that O ostensibly spends with her mother might be detrimental to her. The father queries this and maintains that infact the mother is often not actually looking after O when she is in supposedly in her mother’s care. The mother for her part says that she always makes appropriate arrangements for O, that she now travels less than before and that often she is away from Hong Kong for only a relatively short period of time.  Reference should also be made to the discussion in paragraphs 29 - 32 above in that respect.   

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

40.  As I have said O is a little girl and her parents have been engaged in ongoing and aggressive litigation for most of her young life. Although both of her parents are of Chinese descent they are culturally very different. Both of these aspects of her upbringing will need to be acknowledged and nurtured including exposure to both English and Chinese (Putonghua and Cantonese) Further, it seems to me that O has the right to form a relationship with both sides of her family. 

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

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

41.  Although both of the parents clearly regard themselves as the “better” parent and although I have accepted that the mother showed a distinct lack of judgment in the way in which she approached the Fact Finding hearing, nevertheless I also accept that she is generally a concerned and a responsible parent. She takes O’s education very seriously and she has tried to involve the father in ongoing aspects of that education. She has also ensured that appropriate care is put in place for O, when she is working. Similarly, I accept that the father is also a responsible and caring parent. It is also of note that the father has a good relationship with other family members who live close by, including his cousin and family and that O has an opportunity to spend time with them when she is in her father’s care. 

42.  The mother was asked in the witness box about other times when she has behaved inappropriately and she accepted that on occasions she has got angry and has seemingly lashed out. She acknowledged this.     

The character of the parents

The mother

43.  It would be fair to say that the mother had not come across well during the Fact Finding hearing. In contrast, on this occasion, she seemed much more measured in her responses and to have more insight into the effect of some of her behaviours on the litigation. Generally, she seemed calmer than before. I have no doubt that she is a good and caring mother to O. It is of note that she said that she was willing to attend a parenting course of some type.

The father

44.  In contrast the father seemed very angry and somewhat agitated for much of the trial. As I have said, it quickly became clear that he did not fully understand the issues in dispute or what was actually meant by sole and joint custody, nor had he read the relevant case law, although he is a lawyer by profession. He placed a lot of emphasize on how he “felt”. He clearly still felt very bitter about the Fact Finding hearing and had not taken any steps to deal with his own emotional responses to the current situation. Further it was clear that he had initially simply accepted the recommendations made by the Social Welfare Officer without question. He said in his closing submission that he would not be willing to attend a co parenting course, seemingly being under the misapprehension that this was something that he would be required to do together with the mother. He cited other ongoing litigation between the paternal grandmother and the mother for not agreeing to this.

Decision

45.  I have given a lot of thought to whether or not there should be any change at all to the current shared care arrangement. Notwithstanding the high level of conflict between the parents and the recent issue with respect to the Cambridge English exam, generally speaking the arrangement seems to have been working as well as any other might in the circumstances. Both parties seem, in truth, to prefer splitting the weekends as they do at present, with the mother having Saturday’s and the father having Sundays. Both parties have arranged activities for O on their days and neither seemed to relish the prospect of joining in with the other’s activities, although the mother did ultimately propose something along those lines.

46.  Similarly, the parties have generally been able to reach consensus with respect to holidays, although the father says that this has also not been without incident.

47.  I have some difficulty with the mother’s proposal as set out in paragraph 22(a)(2) as that would mean a lot of to ing and fro ing for O. If she spent every Wednesday overnight with the father and either Friday and Saturday or Sunday’s night with him, it would mean in truth that she would be shuttling between the two households much more frequently than she does at present. Given that both parties acknowledge that she should have a settled home base, and whilst I may not fully agree with that, this proposal nevertheless does not seem like a sensible alternative given the circumstances.

48.  I also have some difficulty with the father’s proposal at 22(c) a) – b) above, as this would mean that O would have a lot less contact with the mother than she does at present.

49.  I accept that the mother does travel up to China on a frequent basis and that she is also required to travel elsewhere for business and that it would not generally be appropriate for her to take O with her. Although I acknowledge that she has made suitable arrangements for O’s care, I have nevertheless decided to make a slight change to the current arrangements during term time whereby O shall be in the care of the father from Sunday at 9:30 am until Thursday when O is taken to school. O shall be in the care of the mother otherwise. In making this slight change the expectation is that the mother will try to ensure that most of her travel takes place whilst O is not in her care. This will mean that O shall spend 4 nights per week with the father and 3 nights per week with the mother.

50.  This is also subject to the caveat in paragraph 32 above, which shall also be included in the court order. There shall be no makeup access in the event that one or other of the parents is required to be away from Hong Kong overnight.

51.  Each parent shall be responsible for arranging ECA’s/extra tuition when the child is in their care. On the rare occasion, such as in the case of the English exam, where there is an event that encroaches on the other sides time, then the requesting parent will need to inform the other side and seek their agreement. If agreement cannot be achieved then the issue will need to be referred to a Parental Co coordinator, ultimately for adjudication.

52.  As before O shall continue to have contact with the parent with whom she is not staying each day at 7:30 pm by Skype, Video, WhatsApp or telephone. This is not an evidence gathering exercise and contact at other times is not encouraged at this stage.

53.  Single public holidays during term time shall be taken as they fall. The mother shall also have day access to O on her birthday and on Mother’s Day and the father shall have day access to O on his birthday and on Father’s day.

For the avoidance of doubt what arrangement should be put in place for the school holidays?

54.  Thankfully there has been some consensus with respect to the school holidays and the parties are agreed that these should generally be split equally between them, although the manner in which that is to be done has not been fully articulated.

School summer holiday   

55.  This year the school summer holiday is relatively short because O is still in kindergarten. This holiday shall be split equally between the parties with the mother taking the first half this year and in all odd years going forward and the father taking the second half. In even years the father shall take the first half of the school summer holiday and the mother shall take the second half. For the avoidance of doubt the first day of the holiday shall be the day following the last day of the school term and the last day of the school holiday shall be the day before the commencement of the school term.

Christmas school holiday, Chinese New Year School holiday and the Easter school holiday

56.    It is also agreed that these school holidays shall be split equally between the parents. For the avoidance of doubt whoever had the first half of the Christmas school holiday last year shall have the second half this year and the other parent shall have the first half this year and for all odd years going forward and so on and so forth.

57.  I am not sure if the parties split the Chinese New Year and Easter school holidays last year. If so, the same principle shall apply as set out in paragraph 56 above. If not the mother shall have the first half of Chinese New Year holiday in 2020 and in all even years going forward and the father shall have the first half in 2021 and in all odd years going forward. The father shall have the first half of the Easter school holiday in 2020 and in all even years going forward and the mother shall have the first half in 2021 and in all odd years going forward.   

58.  There have been occasional difficulties with respect to taking O outside of Hong Kong for holidays. The parties may wish to consider filing a consent summons in this respect giving each party general leave to take O out of the jurisdiction of Hong Kong from time to time for holidays and other trips, subject to the normal undertakings etc. I don’t intend to take this matter any further in this judgment. As a general observation the parties should ensure that they take O away in their share of the school holidays.  

Bearing in mind the above what formal orders should be put in place for custody/joint custody, care and control/joint care and control/shared care and/or access?

59.  At the beginning of this judgment I asked myself a rhetorical question, namely whether or not the relationship between the parties was now so severely damaged that an order for joint custody was no longer feasible? Having considered all of the relevant factors it seems to me that although this case comes very close to that, it doesn’t actually cross the line. It seems to me that the situation between the parties is difficult but not impossible. Further it is within the power of both of them to work on their relationship and on their parenting and communication skills. They are both intelligent people and their daughter is only 5 years old. They will need to actively parent her for a considerable period of time. Certainly I am not of the view that an order for joint custody would leave O vulnerable in any way.

60.  Consequently, I shall make an order for joint custody with shared care of O as set out in paragraph 49 and 50 above. In doing so, although I recognize that the Fact Finding hearing caused tremendous strain on the parties, it seems to me that this is not one of those cases which falls into the category referred to in paragraph 19 and 20 above, where the court has no other option but to make an order for sole custody. I am also concerned that the mother’s parental rights should be fully recognised and given the same weight as the father’s and that she should not be marginalised in any way. 

Are there any other orders/directions that the court should make at this juncture?

61.  It is further directed that the parties each attend a parenting course for high conflict cases. They should consider in particular enrolling on Dr Deena Stacer’s online parenting course, but at the end of the day the choice is there’s. For the avoidance of doubt it should be noted that they are not required to attend the course together. They should also consider getting their own therapeutic support, but that is not something that I intend to direct at this stage. However, I shall direct that they shall appoint a Parental Co ordinator to assist them in decision making in relation to the enforcement of this judgment and other related matters arising out of the judgment. The cost for that shall be split equally between the parties.

62.  As referred to above, it is of note that there may be some dispute over the future arrangements for O’s schooling. O is currently in K2. It is moot, but perhaps worth repeating at this juncture, that regardless of the current arrangements she will need to attend full day school once she enters primary school. It is anticipated that she will go into K3 at the same school in September 2019, but thereafter she will need to change schools for her primary school education. In such circumstances it is further directed that both parties shall apply for whichever schools they deem appropriate for O, with a view to her commencing her new school in August/September 2020.  Both parties may apply for whichever schools they deem appropriate in the first instance and each side shall cooperate with the other with respect to those applications including any interviews or assessments.   

63.  In so far as the current schooling arrangement is concerned and for the avoidance of doubt and notwithstanding the slight change in the care arrangement, it is further ordered that in the absence of any further agreement between the parties, O shall continue to attend all day school on Thursday and Fridays.   

Costs

64.  Given that this is truly a child related matter there shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs such costs to be taxed on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Orders 

65.  Consequently, the court shall make an order as follows:

i)    There shall be an order for joint custody of the child of the family namely O, a girl born on the XX January 2014 with shared care as follows:

Term time

-   During term time O shall be in the care of the 1^st Applicant [father] for four nights per week from Sunday at 9:30 a.m. until Thursday morning, when the child is taken to school. This arrangement shall commence on Sunday 23 June 2019.

-   O shall be in the care of the 2^nd Applicant [mother] from Thursday after school until Sunday morning at 9:30 a.m.

-   O shall be picked up by the 1^st Applicant at the 2^nd Applicant’s home and the 2^nd Applicant shall make arrangements to pick up O from school on Thursday.

School holidays      

ii)    The parties shall split the school holidays on a 50:50 basis as set out in paragraphs 55 – 57 above.

Additional orders

iii)    O shall spend mother’s day and the mother’s birthday with the 2^nd Applicant mother and father’s day and the father’s birthday with the 1^st Applicant father as set out in paragraph 53 above.

iv)   O shall have remote access daily with the parent with whom she is not staying at 7:30 pm by Skype, Video WhatsApp or telephone.

v)    It is further directed that a) a parental co coordinator be appointed by the parties and that the cost for such shall be split equally between the parties and b) the parties shall each attend a parenting course for high conflict families.

vi)    Other orders and directions as set out in paragraphs 32, 50, 51, 53, 62 and 63 above shall also be adhered to and included in the order.

vii)   The First Appointment hearing and the callover in relation to the arrangement’s for O’s primary schooling shall be adjourned to the 16 October 2019 at 9:30 am. Both parties do personally attend that hearing. 

viii)  An updated Social Investigation Report shall be called for in 6 months’ time to include recommendations for schooling.

ix)    There shall be an order nisi to be made absolute in 14 day’s time that there be no order as to costs. There shall be certificate for counsel.