CPS v. WMK

FCMC 2080 / 2018

[2020] HKFC 65

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2080 OF 2018

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J U D G M E N T
(Sole or joint custody, sole or joint care and control/shared care,
the appropriate split of time during term time and other directions)

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Introduction

1.  This trial arose out of a partially successful Children’s Dispute Resolution hearing.  However, although the parties were initially able to reach some consensus, difficulties have continued, particularly with respect to the father’s overnights with the children, two girls now aged 9 and 5 ½ years old respectively.  The elder child A, who was born on the XX February 2011, has started to resist overnight staying access with her father and it seems that the younger child, M, who was born on the XX June 2014, will sometimes follow suit.  The father says that the mother is unable to control her emotions and that the difficulty is not with access per se but with the handovers.  He says that it is not possible for the children to be handed over to him successfully in the mother’s presence.  The mother says that the children genuinely do not wish to stay over with the father for extended periods of time and she denies that she is in any way responsible for this.      

2.  The father wishes ultimately to have a shared care arrangement on a 2:2:5:5 basis and he proposes putting in place now a structure that will eventually lead to this.  Thus he suggests alternate weekend staying access from after school on Fridays until Monday mornings and for day time access after school on Monday and Tuesday’s until 8:00 pm.  He wishes the arrangement to be reviewed in 12 month’s time and at that stage for further overnights to be introduced on Mondays and Tuesdays.  He is also seeking sole custody of the children although ultimately he is agreeable to joint custody.  He also wishes to continue to split the school holidays on a 50:50 basis.

3.  The mother for her part asks for a more traditional order with sole care and control vesting in her and defined access to the father. She is currently proposing that the father have staying access for either one or two nights each weekend and that all other day time access be discharged save for the morning access when the father is supposed to take M to school on Monday mornings and A to school on Thursday mornings.  She wishes the order for joint custody to continue and is happy to share the school holidays on a 50:50 basis.     

Background 

4.  I have set out the background to the parties’ relationship in brief, in the judgment on Maintenance Pending suit/interim maintenance dated the 10 June 2019, as follows:

4.   The parties married on the XX September 2010 and separated in or about June 2015. The husband, who is Australian, is now 45 years of age and he works as senior actuary. The wife, for her part, has worked both as an administrator in a hospital and as a piano teacher, but she is not working at present. She is 41 years of age and is of Chinese descent. The wife issued a divorce petition on the 15 February 2018 on the basis of two years separation and the decree nisi was pronounced on the 19 September 2018.

The issues

5.  The issues then are these:

What arrangements should be put in place for the children’s care during term time and when and how should those arrangements be reviewed?

Should the court order dated the 26 November 2018, in relation to the children’s school holidays, also remain in place or should it be varied?

Should the order for joint custody also remain in place, or should sole custody vest in the Respondent father?

The law   

Custody, Care and control, joint care and control/shared care and access

6.  The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 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;

7.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says 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 views 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;

8.  For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

9.  Case law has developed over time and the most authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Reference should be made to that judgment as necessary. In particular Hartmann J said this of custody/joint custody/care and control:  

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 moulding 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.

10.  This case could also be said, to be another 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 “until such time as the petitioner can demonstrate her commitment to both, ensuring the children can enjoy a reasonable access with their father free from mental or physical barriers imposed by the petitioner or her mother, and the responsibilities co-parenting in general”.

11.  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.

12.  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 A and M more vulnerable than they are at present?

13.     In so far as the terms care and control and shared care are concerned, I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control and shared care: 

Joint care and control

21. Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22. The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. … What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/rens best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case.  As I have said it is not possible for me to make a “parallel parenting” order as such.  However, I would like to make an order that supports the concept of parallel parenting. Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access.  This will make no difference at all to the practical arrangements that I intend to put in place.  They would have been the same in either event. However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

Detailed arrangements were then set out accordingly.

14.  In this case Mr Felix Li for the mother says that the mother is not concerned with labels. Further as I explained to the parties during the trial it seems to me that the correct approach is to first of all consider what practical arrangements would be optimal for the girls and to then make an order that reflects those arrangements.

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. In this instance I have considered all of these factors when considering the issues, but I have decided not to go through the list item by item. 

Discussion

17.  I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the Social Welfare Officer, Ms Y who prepared two reports the first dated the 8 August 2018 and the second dated the 16 August 2019 and from the Single Joint Expert, namely Dr B, who along with her team prepared a Child Evaluation report for the court dated the 8 February 2019.   

Each party’s open proposals

The father

18.  The father set out his open proposals on a number of occasions including in his closing when he said as follows:

2. Firstly, I would like to reiterate my proposals on custody and care and control from my opening statements.  Those were:

(i)     A 12 month (maximum) interim arrangement of bi-weekly Monday and Tuesday after school until 8pm and from Friday after school until Monday morning,

(ii)     an eventual shared care and control arrangement on a 50/50 basis on a 2/2/5/5 basis with Mondays and Tuesday (inclusive of all public holidays, school special days, etc), to be implemented within 12 months.

(iii)    holidays to be split equally

(iv)    with sole custody to be granted to me until such time as the Petitioner can demonstrate her commitment to both,

i.    ensuring the children can enjoy a reasonable access with their father free from mental or physical barriers imposed by the Petitioner or her mother, and

ii.   the responsibilities of co-parenting in general.

3.   I still firmly believe that the evidence after cross examination still supports my proposals as set out in above over those proposed by the Petitioner.

The mother

19.  In the mother’s closing Mr Li summarized the position post trial as follows:

1)   M’s proposal going into Trial: staying access on a bi-weekly basis from Friday 4pm (or after school) to Sunday 8pm; and weekly access on every Friday 4pm (or after school) to 8pm.

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
Week 1	M morning pickup			A morning pickup	Staying access from Fri 4pm/ after school to Sun 8pm
Week 2	M morning pickup			A morning pickup	After school to 8pm

2)   M’s proposal revised during trial: staying access on bi-weekly basis, on the first weekend, from Friday 4pm (or after school) to Sunday 8pm; on the alternate weekend, from Friday 4pm (or after school) to Saturday 3pm (when M picks up the Children at ballet class);

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
Week 1	M morning pickup			A morning pickup	Staying access from after school to Sun 8pm
Week 2	M morning pickup			A morning pickup	Staying access from after school to Sat afternoon

20.  Mr. Felix Li, counsel for the mother, added as follows in his closing submission:

Agreed Position during Trial

4.   By the time the Court finished hearing evidence, parties were in agreement in a number of issues. They are:-

(i)     Labelling - F does not insist on labelling (Day 5, XX of F, 12:52) while M agrees that in the long run parties can be under a 50:50 shared care arrangement only that she feels it would not work at present (Day 2, XX of M, 16:32).  M also does not insist on labelling;

(ii)     There shall be a transitional period - only that the length and progression is currently in dispute (see below);

(iii)    During this transitional period, parties are to engage in professional help to resolve their family relationship issues, and it is agreed at Trial that these include:-

(a)  Parties to engage in a parental co-ordinator be it going back to W or to look for a new one;

(b)  Parties are to separately seek individual help - F claims he has been seeing Dr. Z and he shall continue to do so, and M has promised to visit Dr. H, a Counselling Psychologist;

(c)  Parties are to enroll in co-parenting courses including and not limited to the Deena Stacer online course, and/or courses offered by the AAFT and HKFWS. Information was passed to the parties by the Court during Trial;

(d) The Children, i.e. BOTH A and M, are to re-commence play therapy either with Dr. L or to look for a new one;

(iv)    The above sessions/therapies are all done with a view to improve the relationships within the family so as to cater for the possibility of moving towards shared care in the future;

(v)     F shall pay for the above sessions/therapies and discussions were held in relation to F’s financial ability referring to the MPS Judgment; it was agreed that F will be in a position to pay for them and F also confirms the same in his testimony in addition to confirming his willingness to do so;

(vi)    There will be staying access in going forward as it has been in the past - parties do not dispute the appropriateness of F having staying access and only dispute on the length and/or frequency of these staying access;

(vii)   The Undertaking of F taking M to school every Monday and A every Thursday to continue [A/48/D] unless Court views otherwise;

(viii)  Long holidays shall be equally split [See Attachment 1 as to parties AGREED proposed pattern of split & F’s letter to M as proof];

(ix)    The parties will be brought back to this Court to check on their progress sometime after Judgment, by way of a progress report or otherwise.

The experts

The Social Welfare Reports

21.     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.

22.  In this case the Social Welfare Officer filed two reports dated the 8 August 2018 and the 16 August 2019 respectively. In her first report Ms. Y recommended as follows:

35. Taking into account the parents’ views, the childcare history, the childcare plan, the parent-children relationship and the children’s views, the Investigating Officer would like to recommend as follows:

(i)     Custody of the family children, A and M be jointly granted to the Petitioner mother, Madam C and the Respondent father, Mr. W;

(ii)     Care and control of the family children be granted to the Petitioner mother;

(iii) Visiting access be granted to the Respondent father every Monday to Friday;

(iv) Staying access be granted to the Respondent father from Friday to Sunday bi-weekly;

(v) School holidays be split equally or alternately or agreed by both parties; and

(vi) Overseas trips to both the Petitioner mother and the Respondent father once or twice annually or agreed by both parties.

23.  These recommendations basically remained unchanged in Ms Y’s second updated report where she said as follows:

Conclusion and Recommendation

28. During the present enquiry, both Madam C and Mr. W were impressed to be loving and concerning parents towards the A and M.  Despite their divorce, both of them tried their endeavor to cater the children’s various developmental needs and maintain an affectionate relationship with them. They were eager to shoulder up the parental responsibility in their upbringing process.  As observed, Madam C was a dedicated mother who was a full-time main caregiver to commit herself in the childcare and hence the mother-daughter bonding was strong and attached. Similarly, Mr. W was a hands-on and responsible father to their children. Having regarded that both parents were equally important to the children and the aim of the joint custody was served to let the children experience the intimate involvement and co-parenting of both parents in their upbringing, joint custody was considered preferable and still recommended in this case.

29. Regarding the care and control, Madam C and Mr. W had divergent views in that Madam C remained to ask for sole care and control whereas Mr. W wished for a joint one.  Their respective child care plans were considered feasible for the two children.  Nonetheless, it was a pity that they could not work out a shared plan on care and control in view of their difficulty to have reasonable and constructive communication.  Madam C was all along a main caregiver and a committed mother to the children.  She had built a secured, trustful and attached mother-daughter relationship with the children and fulfilled to meet their emotional and developmental needs. Meanwhile, the children explicitly expressed their preference of being with the mother.  On the other hand, Mr. W was also a caring and responsible father who took up childcare role whenever he could.  In light of Mr. W’s commitment in his work, some of the childcare responsibilities would be vested to the domestic helper, which is considered to be less desirable for the children, comparing to the plan of the mother to provide full-time care together with the support from the maternal grandmother.  For the best interest of the children, the care and control to the mother was still considered as the most suitable caring option.

30. On the other hand, with his good educational background and knowledge in childcare and parenting, Mr. W could undoubtedly play an important complementary role of providing positive' access time with A and M, which was conducive to their healthy development and growth. The two children would be definitely benefited from the father’s supervision, guidance, care and love if they could meet intensively.

31. In view of the above, I remained to recommend that Madam C continued shouldering up the main carer’s role to look after the daily care of the children while Mr. W would have the access time with the children to maintain the father-daughter relationship.

32. Taking into consideration of the parents’ views, the childcare plan, the parent-child relationship and the children’s views, the Investigating Officer would like to recommend as follows:

(i)   Custody of the family children, A and M be jointly granted to the Petitioner mother, Madam C and the Respondent father, Mr. W;

(ii)  Care and control of the family children be granted to the Petitioner mother;

(iii)     Day access be granted to the Respondent father every Tuesday and Friday;

(iv) Staying access be granted to the Respondent father from Friday to Sunday bi-weekly;

(v)  School holidays be split equally or alternately or agreed by both parties; and

(vi) Overseas trips to both the Petitioner mother and the Respondent father annually or agreed by both parties.

24.  The father took great exception to many of the statements/assumptions made by the Social Welfare Officer in her reports, which he said were not backed up by the evidence. In particular, he objected to what he said was the assumption that the mother was the primary care taking parent prior to the party’s separation. The father said that this was simply not the case and that prior to July 2018 he had been very involved in every aspect of the girl’s lives and that to all intents and purposes he had been the caretaking parent. The father sets this out in his affidavit of the 24 July 2019 when he says as follows:

My Care of the Children

72. The entire history of my children includes me caring for the children on a full-time basis at all times I was not at work

73. During the period that I had my least time with the children, which was before M was born, I was still caring for A more than 50% of her waking hours. I have therefore always been the primary carer.

74. I have over my entire life cared for children. From the time my youngest brother was around 2 years old, my mother would leave him in my care when she would go to the out to various school events.  At that point, I was a 14-year-old caring for my 3 brothers and one sister aged from 2 to 12.  I often also cared for my cousins on my mother’s side at the same time - two girls and one boy aged between 3 and 9 years old.

75. I have cared for my own two children single handedly over long periods (multiple days) which the petitioner has not.

76. I am competent in all aspects of domestic duties having spent significant periods of my life attending to my own domestic needs.

77. I have lived in several countries amongst many cultures and do not harbour any racist attitudes that may lead to an identity crisis in the children.

78. The children have a caring, loving, enjoyable, interesting, and safe homelife free from adult conflicts and issues whilst in my care.  This is conducive to them growing into mature and stable adults.

79. I have attended to the development of all aspects of the children’s lives including, cultural, arts, sport, cooking, domestic responsibilities, manners, academia and music.

80. I have nurtured the friendships that the children have established themselves and ensured that they continue to be able to develop healthy relationships.

81. I have a strong commitment to ensuring continued involvement of both parents in the lives of the children.  This includes:

(i)     Telling the children their mother has done a great job with their hair, expressing how nice A’s lunch prepared by her mother when her lunchbox comes home empty and how nice it is of her mother to bring her lunch.

(ii)     Encouraging the children to bring arts and crafts back to the petitioner’s house including making specific paintings and crafts for their mother.

(iii)    Arranging for their mother to attend A’s birthday party for her school friends hosted by me at my apartment (unfortunately, the petitioner was upset when asked politely not to try and make a scene.)

(iv)    Arranging alternative access dates when my access fell on the petitioner’s birthday.

82. My demonstration of such care is contained in the exhibits.

(v)     I have provided a video of 45 hours (all of March) which I think demonstrates all of the above.  Exhibit 7.

(vi)    Evidence of the activities I took extensively over the lifetime of the children.

(vii)   Recorded admission from the petitioner that she indeed did not spend many of the hours claimed over the period (in this case 2017).

83. The development areas I have exclusively (except for piano teaching which the petitioner has very recently also started assisting the children) been involved in as a hand-on parents include (Exhibit 2):

(viii)  Sports:

i.     I taught A to ride a bicycle without training wheels

ii.     I taught both children to swim unassisted

iii.     I taught Ato ride a bodyboard

iv.     I taught A to play tennis.

v.     I have taken the children on hikes and exploring forests.

vi.     I taught the children to climb trees and to get down safely.

vii.    I taught both children to ice-skate.

(ix)    Learning and Educational

i.     I have taught Aadvanced mathematics (to a grade of middle high school in Australia)

ii.     I have taught both children English.

iii.     I have taught the children to play the piano from an early age

iv.     I have taught A to play pop songs on the piano and sing simultaneously.

v.     I have taught the children to compose their own songs

vi.     I have taught M the piano.

vii.    I have introduced them to percussion and string instruments.

viii.   I regularly play educational games with both children.

ix.     I have encouraged the children to explore the natural environment and to spot and photograph animals, to catch tadpoles, butterflies and dragonflies, to look at insects under a microscope

x.     I have grown fruit, vegetables and herbs with the children.

(x)     Life Skills

i.     Cooking and Baking

ii.     Manners

iii.     Helping with domestic chores

iv.     Using Computers

v.     Shopping

vi.     Interacting with children and adults who are unfamiliar with them

vii.    Interacting with children of different racial backgrounds

(xi)    Leisure

i.     Children’s games such as hand and leg string and elastics games

ii.     Various hand clapping games

iii.     Going on picnics.

iv.     Building sandcastles. collecting rocks and shells

v.     Painting

vi.     All manner of children’s indoor and outdoor games

vii.     Making puppets and putting on shows

viii.     Creating craft from everyday items around the house.

25.  He reiterated this in the witness box pointing out inter alia that he generally returned home from work before the mother prior to March 2018, which is when the mother resigned from her job, and that generally he was the more available parent. He also maintained that he was the one who normally assisted the girls with their homework, as evidenced by WhatsApp messages in September 2017 and January 2018 showing attempts by him to find someone to help him with the girls’ Chinese homework. He said he always assisted with their English and Maths homework. He also provided photographs showing his involvement with the children’s hobbies and other weekend activities.

26.  The father also disputed the suggestion that he could not be a fully hands on parent going forward because of his work commitments and that it was likely that he would have to rely on the services of a domestic helper, as compared to the mother who does not work outside of the home at present. In doing so he also pointed out that the mother currently relies heavily on her domestic helper for assistance, together with her mother, the maternal Grandmother and that this is during a period when she is not working. I should say at the outset that I accept entirely that the father is a fully committed parent who has been able to reorganize his work schedule so that he has been able to pick up the children from school and organize their time appropriately when they are in his care. This includes ensuring that they do their homework. I have also had the benefit of watching a condensed video of the father’s access time over a year long period, which supports his position in this respect. I have further taken into account the fact that longer term it is likely that the mother will also need to work either on a part time or full time basis. It follows that I also accept that the father was a fully involved parent prior to him moving out of the matrimonial home.

27.  In his affidavit the father recounts the following:

172.  During the first round of interviews, the SWO passed me a box of tissues and then stated this will be difficult for you to hear.  She then stated that “in the case of young children, especially girls, as long as the mother passes the minimum level of competency the mother will always be awarded custody of the children”.  I enquired as to what the “minimum level” was which the SWO was unable to explain.

173.  There is certainly an implied bias towards the mother in the mind of the SWO.  I believe this also to be borne out in many of the concrete statements about the mother’s care over the duration of the marriage, which appeared to be taken purely on the basis of believing the petitioner’s statement despite the body of physically documented evidence produced to counter those statements.

28.  He also put this scenario to the Social Welfare Officer in the witness box, who said that she could not recall this interaction. I tend to accept the father’s version of events and I also accept that it is likely that the Social Welfare Officer jumped to conclusions when she said that the mother had always been the primary caretaking parent. In reality I accept that both parents had worked outside of the home during the marriage and that both had been involved in their children’s care.

29.  The father was also concerned that Ms Y seemed to accept what had A said at face value without considering the possibility that A might have been coached in some way by the mother, or she at least knew what the mother might expect of her. In her second report Ms Y said as follows:

Views of the Children towards Custody and control and Access

21. A and M were interviewed together twice during the home visitations at their parents’ home.  They shared that they were being with the mother for playing, fun-seeking activities and supervising homework for A most of the time; with the father for watching television programmes and movie, and playing.  A expressed that she wished to live with her mother but not with her father M nodded to echo A’s view.  They stated that they would be very delightful when staying with their mother, but felt boring with their father. They said that in their feeling, time with the mother passed fast, but with the father passed slowly.  They wanted to meet their father at daytime but not staying with him overnight.  They added that their mother’s cooking was good and dishes she prepared was delicious.  They liked the meal their mother cooked more, compared to the domestic helper of the father.

30.  In his closing submission the father makes the following points:

47. The SWO also explained that she gave significant weight to the voice of the children.  Two particular things stand out.

(i)   When asked if she believed the children were coached or under duress to give the answer that they wanted their mother, the SWO officer did not believe there was any coaching.

(ii) When describing how she ascertained the voice of the children, the SWO explained that she went into a room at my apartment with the children, introduced herself without stating her objective to gather information on access.  The SWO stated that before she had the opportunity to provide any cues or questions to the children about their wishes, A volunteered that she wanted to only stay with her mother.  The SWO did not feel it at all suspicious that the children knew which questions to answer before she had asked them (and in the absence of any other indications that she was there to collect such information.) The SWO stated in cross examination that she “did not know why A would have volunteered such information but she did”.

48. There is clear evidence of coaching.  It is unfortunate that the children had come prepared with knowledge provided to them by either the Petitioner or the grandmother on the purpose of and information to be provided to the SWO.  The true wishes of the children will unfortunately never be revealed due to this interference in the process.  Based on the evidence of their significant enjoyment, relaxed nature, good academic scores, etc during their access time with me, it is hard to believe that their wishes were represented even remotely honestly.

31.  I accept that in this instance the views of the children are likely to be difficult to ascertain and in any event given that A was only 8 years old and M only 5, at the time when they saw Ms Y, it is not really appropriate to attach too much weight to their stated views in any event. It is also of note that in a high conflict situation such as this, where there have been a number of highly emotive incidences, it becomes even more difficult to rely on the stated views of young children who are caught in the so called and accurately phrased “miserable middle”.      

The Child Custody Evaluation Report dated the 8 February 2019

32.  The Child Custody Evaluation report made a number of concerning findings including the following:

Both Mr. W and Ms. C. for all intents and purposes, appear to be invested, loving and caring parents with a wide range of cognitive. emotional and financial resources at their disposal in order to excel in their respective parental roles.  Unfortunately, Ms. C and, to a somewhat lesser degree, Mr. W continue to relate to each other with open hostility, and consequently their negative interactional style appears to be enacted at the emotional expense of their children.

While Ms. C claims to welcome Mr. W as an equal in the co-parenting arrangement there is much evidence to suggest that, in practice, this is simply not the case.  In particular, A’s quite natural ambivalence towards her parents’ separation and the changes it triggered within their family system seems to be leveraged by Ms. C as she selectively focuses on the negative aspects of both the changes in their family situation and Mr. W’s approach to parenting in general.  Both parents are reminded to be aware of the difference between what they want as individuals and what their children need from them as parents.  A and M should therefore be encouraged to hold in mind a positive image of both parents as well as be able to express love for and be loved by both their mother and their father.  This can be done in small steps by encouraging emotional individuation whereby the girls can begin to understand that their parents can be angry at each other, yet they are free to have different emotions without feeling disloyal, fearful of punishment and/or worried about the emotional fragility of either parent in their absence.

Very young children can and do form multiple attachments. While Mr. W has been heavily involved in parenting from the outset and appears to be considered a primary attachment figure by both girls their current preference for their mother is clear.  As such, it is important that this preference, however gained, be respected while at the same time giving Mr. W ample opportunity to continue to solidify his relationships with A and M in order ensure the development of attachment security with both parents and eventually achieve a 50/50 shared Care and Control arrangement. However, in the short term, it is recommended that A and M spend no more than four consecutive nights away from their mother, except during their arranged holidays, until a neutral third party deems it in their best interest to increase Mr. W’s Access.

33.  In the Recommendations the following is suggested:

Recommendations for Mr. W and Ms. C

1.     Mr. W and Ms. C have already been awarded Joint Custody of A and M.  Ms. C should be granted Care and Control with generous access and visitation given to Mr. W.  Care and Control Orders should mandate a two-week rotating schedule with no more than four consecutive nights with Mr. W until a neutral third party deems it in the children’s best interest to move to a more equal, 50/50 week-on, week-off shared split. Holidays and important events should be equally split on a rotating bi-annual basis.

2.     Mr. W and Ms. C should continue to instruct their Parenting Coordinator.  This neutral third party can monitor the effectiveness of their parenting strategies at any given time as well as guide changes in Access as they move towards a shared split.  This approach will ensure that all parties understand that their cooperation is necessary and their actions are being monitored.  As they get older, a Parenting Coordinator should also be consulted in order to assist the family make important decisions regarding the children’s education.

3.     With the help of their Parenting Coordinator. Mr. W and Ms. C should discuss and agree upon a set of clear communication rules for the children when in the care of the non-custodial parent.  This information can then be shared with A and M and maintained across both homes. To begin with, calls with the non-custodial parent during access visits should be strictly scheduled at a time that is convenient for all parties.

4.   Both children need their parents’ encouragement and support if they are to successfully build healthy relationships with each parent.  This reassurance goes beyond surface level gestures to encompass the much deeper level of subtle messages each parent sends to them about the other. There is great value in both children having a continued relationship with each parent.  Research strongly suggests that children profit from having relations with both parents as all relationships within the family system are continuously interactive and potentially transformative for each family member.

5.   Both parents should consider attending family therapy together with the view of improving their overall relationship and in doing so facilitate more effective co-parenting exchanges.

6.   It is recommended that Mr. W and Ms. C continue to invest in purchasing and/or acquiring a second set of essential items both girls routinely use.  This will make transitioning between the two homes much less labor intensive and tedious.

7.   Parental disagreements should be handled behind closed doors, or if necessary, with the help of a third party.  Parents should pick these battles carefully as it is not necessary to have uniformity across households, raising points of disagreement only when they are considered to be very important and with respect for the other parent’s views.

8.   It is also extremely important that one parent not be perceived as the “good” parent and the other the “bad” parent, something that A and M can exploit or take advantage of.  This is only possible if both parents remain supportive of each other and of each other’s authority.

Recommendations for the W Children

1.     It is likely that both children will benefit from ongoing weekly therapy to help build emotional literacy and appropriately manage intense or negative emotions they may harbor as a result of their parents’ divorce.  It is also important that any possible damage to the parent-child relationship be appropriately explored and addressed.  These sessions may also help Mr. W and Ms. C develop consistent strategies to manage M’s sometimes difficult behaviors.

2.     It is important that A’s parents help reduce the inner conflict she is feeling.  It is likely she will feel comforted through positive affirmations about her father and the use or inflammatory and/or negative language with respect to any family members should be avoided at all costs.

3.     Until A and M are feeling more comfortable with shared custody arrangements, it is recommended that each parent avoid school and social events that fall on the other parent’s scheduled access dates.

34.  As will be seen I largely agree with these recommendations, although it falls outside of the ambit of this judgment to make orders with respect to all of the proposals. However, I have also taken on board the suggested undertakings proposed by Mr Li for the mother in paragraph 20 above. 

Discussion

What arrangements should be put in place for the children’s care during term time and when and how should those arrangements be reviewed?

35.  At the time of writing this judgment, Hong Kong remains on high alert because of COVID 19 and the children are not currently attending school. Consequently, I intend to make orders that assume that the children will be returning to school after the Easter holidays. However, I shall also make an order in the alternative, in the event that this does not materialize.

36.  At present the father is supposed to have access in accordance with the court order dated the 23 August 2018 i.e. access from after school on Tuesday and Thursday’s until 8:00 pm and on alternate weekends from Friday after school until 8:00 pm on Sunday. In addition, it was agreed that he would take M to school on Mondays and A to school on Thursdays. The mother now proposes that the father have no access to the girls during the week other than taking them to school as agreed to previously. The difficulty with this suggestion is that it reduces significantly the frequency of the father’s access with the girls and in my experience may make it more difficult to encourage longer periods of access going forward.

37.  The mother further claims that the children do not enjoy their access time with the father. However, there is little to support this suggestion and I accept that the video in particular shows an entirely natural, relaxed and happy environment at the father’s home during the father’s time with the girls. In other words, the girls seem happy during the access. The father complains of a number of incidences where access has not taken place as ordered and where, to put this as neutrally as possible, there has been unpleasantness at the handovers, which has been witnessed by the girls. It is his view that it is the handovers that are the problem as opposed to the access itself. I would tend to accept what he says in this respect. Thus I would also accept that wherever possible handovers and access generally should not take place with both parents present.

38.  Mr Li suggested to Dr B that given the girls reluctance to always go on access and to stay over with the father for extended periods of time, that it may not be appropriate to move towards a shared care regime in any event. This was not accepted by Dr B in the witness box, who reiterated that in her view this should be the ultimate goal, notwithstanding the fact that there is no legal presumption of 50:50 shared care arrangement in Hong Kong. She also remained of the view that this should be the ultimate goal even if this was difficult for the girls emotionally. She also thought it likely that the girls may have been coached by their mother, whether this was conscious or unconscious behaviour on her part. When it was suggested that the overnights should be reduced given A’s negative emotions around them, Dr B said that reducing the number of nights would simply reinforce her negativity, especially given the fact that she has handled longer holidays with the father, seemingly without too much difficulty in the past. In her view it might be sensible to keep things more or less as they are for 3 – 6 months and to then move towards more overnights. Notwithstanding that she was also very much in favour of a full weekend from Friday after school until Monday morning on an alternate weekend basis and also proposed having a further assessment in 12 months time.

39.  The father for his part wishes it to be stated in the order that it intended in due course to move to a 50:50 shared care regime on a 2:2:5:5 basis. I have given this a great deal of thought and although I appreciate that there is some incentive in NOT making these arrangements work without such an order, I am in some difficulty in that it is impossible for me to know whether or not this will necessarily be in the best interests of the children in the longer term. Thus this order is made on the premise that it goes some way towards creating the structure that the father seeks, but there is no assumption that the court will increase the staying access as requested by the father in 15 months time. It is one of the options open to both the parties and the court but it is not the only option. I accept however that it is very important that the children begin to have regular overnight staying access with their father and that this is clearly explained to them. This must begin immediately.

40.  Consequently, having considered all of the evidence, including Dr B’s report and her testimony in the witness box, I shall make an order for alternate and slightly longer overnight weekend access, which should allow both parties to spend quality time with the children, on a week on/week off basis. I also accept that the children should be picked up from school by the father on Friday afternoons and dropped back at school on Monday mornings. Although this increases the length of stay over the weekend by one night I agree with Dr B that this should not be too big a deal and the upside is that the children will not have to cope with any further potential conflict at the handover. In addition, the father shall have access on each Monday evening, from after school until 8:00 pm on the weeks that he has the long weekend and on Mondays from after school overnight until Tuesday morning on the other weeks. This also has the advantage of reducing the need for parental involvement with handovers during term time.  I have considered whether the father shall have Monday and Tuesday evening access as a prelude to a 2:2:5:5 shared care arrangement and as discussed above, have decided against this for the time being. The girls are still quite young and it seems to me that this may be too big a jump at present – i.e. to have little contact with the mother for 5 full days in one stretch. I shall also discharge the Thursday evening access. The arrangement with respect to access on Monday and Thursday mornings shall be slightly altered in that the father shall take M to school on Wednesday mornings. It is of note that the father will naturally drop the girls off on some Monday and Tuesday mornings when they are in his care in any event. In making this order I recognize that it goes a little further than originally envisaged by Dr B in the witness box. However, it seems to me that it is preferable in this instance, to limit the interaction between the parents as far as possible, so that pick ups and drop offs are generally done at school. It also ensures that the father has overnight access each week, as originally suggested by the mother. I agree that this seems sensible. I do not agree that the overnights should only take place at the weekend.  

41.  Thus the time table during term time shall normally be as follows:

	Fri	Sat	Sun	Mon	Tue	Wed	Thur
Week 1	Staying access from after school on Friday until drop off at school Monday morning			Pick up after school. Drop off at 8:00 pm		M morning pick up	A morning pickup
Week 2				Staying access from after school to drop off at school Tuesday morning		M morning pick up	A morning pickup

42.  This arrangement shall be reviewed in June 2021 and both parties are required to undertake the necessary work to ensure that this arrangement works as set out in paragraph 20 (iii) – (v) above.  

43.  An short updated report is requested from Dr B in 15 months’ time – i.e. to be filed on or before the 1 June 2021 (before the end of the next school year).

44.  In the event that the children do not return to school in April, then after the end of the Easter school holiday the father shall have alternate weekend access as set out in paragraph 41 above, from 4:00 pm on Friday until Monday at 8:00 pm and from Monday at 10:00 am until Tuesday at 8:00 pm on alternate weeks.

Should the order dated the 26 November 2018, in relation to the children’s school holidays, also remain in place or should it be varied?

45.  The order dated the 26 November 2018 states as follows:

Chinese New Year school holiday

(i)     The Chinese New Year school holiday shall be split between the parties on a 50:50 basis with the Respondent having the second half of the holiday.  The Respondent shall have the Children from 6 pm on 7 February 2019 until 6 pm on 13th February 2019;

Easter school holidays

(ii)     The Easter school holidays shall be split between the parties on a 50:50 basis with the Respondent having the first half of the holiday.  The Respondent shall have the Children from 9am on 19th April 2019 until 12 noon on 25th April 2019;

Summer school holidays

(iii)    The Summer school holiday shall be split between the parties with the Respondent having the first two weeks of the holiday and the Petitioner having the second two weeks.  The last three weeks of the holiday shall be split equally.  The Children shall be in the care of the Respondent from 9 am on 13 July 2019 until 6 pm on 26 July 2019; and from 9am on 10 August 2019 until 12 noon on 21 August 2019;

(iv)    The Children shall be in the care of the Petitioner otherwise.

Single public holidays

(v)     Single public holidays not forming part of the longer school holidays shall be alternated between the parties with the Respondent having the Children on from 9 am to 6 pm on 5 April 2019 and 7 June 2019.  The Petitioner shall have the Children from 9 am to 6 pm on 13 May 2019 and 1 July 2019.

Staff Development Days

(vi)    Staff Development Days shall be alternated between the parties with the Respondent having the Children on 16 May 2019.  The Children shall be in the care of the Petitioner otherwise.

46.  The parties both agree to split the school holidays 50:50. Attached to Mr Li’s closing submission is a document entitled “Parties Agreed Holiday Proposals”. This states as follows:

Attachment 1: Parties’ Agreed Holiday Proposals

Parties are in agreement that in principle that for long school holidays, each holiday is to be split equally in chunks.  With availability of school dates in 2019-2020, parties are able to work out the following splits: -

1.   Christmas 2019: (13 days)

(i)     F to have the Children from 8pm of Thursday 19 December 2019 until 25 December at 5pm;

(ii)     M to have the Children from then until 1 January 2020.

2.   Lunar New Year 2020 (12 days)

(i) M to have the Children from 22 January until 27 January 8pm;

(ii) F to have the Children from 27 January 8pm until 2 February 8pm.

3.   Easter 2020 (12 days)

(i)     The parent whose main access is on the first weekend start the holiday for the first half;

(ii)     Holiday is 4 April to 15 April;

(iii)    Handover date would be 9 April 2020 8pm

4.   Summer 2020: (45 days)

(i)     Parties to rotate on firstly on 14 days each (e.g. M 14 day, followed by F 14 days);

(ii)     Followed by 8 days each (e.g. M 8 days and F 8 days)

(iii)    Summer holiday is 13 July to 26 August

For singular public/school holidays, parties will share on equal and alternate basis.

47.  This proposal seems sensible and I am happy to make an order in these terms. Going forward the mother shall have the first half of the children’s Christmas school holiday in 2020 and in all even years going forward. The father shall have the first half of the Christmas school holiday in all odd years. It is of note that he had the first half of the holiday in 2019.

48.  Similarly the father shall have the first half of the school Lunar New Year holiday in 2021 and in all odd years going forward. The mother shall have the first half of the Lunar New Year school holiday in all even years. It is of note that the mother had the first half of the holiday this year – in 2020.

49.  In so far as Easter school holiday is concerned, I agree that this should also be split 50:50 and whichever parent has the weekend access before the start of the holiday shall have the first half of the holiday.

50.  I also agree that the summer school holiday shall be split on a 50:50 basis with each party taking a 14-day tranche followed by an 8-day tranche. It is further directed that whichever parent had the first half of the Easter holiday shall have the second tranche of the summer school holiday.

51.  Single public holidays and single school holidays, not in the longer school holidays shall be alternated between the parties.

Should the order for joint custody also remain in place, or should sole custody vest in the Respondent father?

52.  The father asks for sole custody because he wants to ensure that he has reasonable access to the children without any mental or physical barriers being imposed by the mother. The difficulty is that I am not convinced that an order for sole custody could or would achieve that goal. Custody is concerned with important decision making. Although the father complains that the mother has behaved in a high handed manner, with respect, for example, to the choice of school for A, ultimately he accepted that choice of school. In so far as I am aware, there is nothing else immediately on the horizon of a custodial nature. It is clear that notwithstanding the almost chronic level of conflict that exists in this case, ultimately both parties are good enough parents, who want what is best for their children. In such circumstances it seems to me that the order for joint custody should remain in place.        

The father and the mother in the witness box and generally

53.  When considering matters of this nature the court is charged with considering the character of both parties in the witness box. I should say at the outset that the father strikes me as being a very bright man. Although he has some mental health issues (Bipolar I disorder), it is clear that he is able to manage this condition appropriately and I accept that he has had no discernible episodes since 2011. The mother for her part seems to still be somewhat preoccupied with the breakdown of the marriage. In addition, it is very clear that neither appears to have any form of functioning parenting relationship with the other and that they have not developed the necessary strategies in order to be able to deal with each other on a day to day basis. There also appears to be a lot of underlying emotional baggage that affects their ability to interact with each other. Thus I agree that they will need assistance going forward both in terms of appointing an affordable parental co ordinator and in obtaining appropriate therapeutic support for themselves.

Costs

54.  Although this is a very high conflict case there is nothing here which takes it out of the realms of the ordinary in so far as costs are concerned. Consequently, I shall make an order nisi to be made absolute in 28 day’s time that there be no order as to costs. If either party wishes to challenge this, then they will need to take out the appropriate application. There shall be certificate for counsel and I thank him for his assistance in this matter.

Conclusions and order

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

i)     Order 1 of the court order dated 7 May 2018 shall remain in place in that the Petitioner and Respondent shall continue to have joint custody of the two children of the family namely A, a girl born on the XX February 2011 and M, a girl born on the XX June 2014, with shared care as set out in paragraph 41 above. This arrangement shall commence when the children return to school anticipated to be after the Easter school holidays in April 2020.

ii)     In the event that the schools continue to be suspended the Respondent shall have weekend access as set out above and in addition he shall have access all day on Monday in week one, returning the children to the mother at 8:00 pm on Monday evening and overnight staying access from Monday - Tuesday in week two commencing at 10:00 am on Monday and ending at 8:00 pm on Tuesday.    

 iii)    The children shall be in the care of the mother otherwise.      

School holidays        

iv)      The parties shall split the school holidays on a 50:50 basis as set out in paragraphs 46 – 51 above.

v)      Other orders and directions as set out in paragraphs 20 (iii) – (v) as repeated in paragraph 34 above shall also be adhered to and included in the order.

vi)    The First Appointment hearing shall be adjourned to the 9 June 2020 at 9:30 am. Both parties do personally attend that hearing. 

vii)  An updated report from Dr B shall be called for to be filed on or before the 1 June 2021.

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

ix)      Liberty to apply.