TPF v. W

FCMC 16179/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16179 OF 2011

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JUDGMENT
(Access arrangements)

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Introduction

1.  This is an application by a respondent mother for additional access to the only child of the family, V who is a 12 and a half year old girl, having been born on the XX October 2003. Although the mother’s summons references both access and financial arrangements, this hearing is to determine the access arrangements for V only.

2.  In the mother’s summons dated the 13 March 2014 the mother seeks shared care of V as follows:

1. Paragraph 1 of the Order made by H.H. Judge S.D. Melloy on 29^th March 2012 be varied to the extent that the Respondent be granted defined access to TWKV(“V”) as follows:

(a) The Respondent shall have staying access of V from Sunday at 11:00 am to the beginning of school on Wednesday.  If it is a school holiday, V is to be returned to the Petitioner at 11:00 am on Wednesday.

(b) The Petitioner and the Respondent shall have staying access to V over the School Holidays being Christmas and New Year holidays, Chinese Lunar New Year holidays, Easter holidays and Summer holidays (the “School Holidays”) equally.  The Petitioner shall take the first half of the School Holidays and the Respondent shall take the second half of the School Holidays.

(c) The Petitioner and the Respondent shall have staying access to V over the public holidays of Labour Day, Buddha’s Birthday, Tuen Ng Festival, HKSAR Establishment Day, Mid-Autumn Festival, National Day and Chung Yeung Festival (the “Public Holidays”) alternately.  The Petitioner shall start the staying access to V over the Public Holidays first.

2. The Respondent be released from the undertaking contained in clauses 5.5.1, 5.4.2, 5.4.3, 5.4.4, 5.4.5 and 5.4.7 of the Chinese Mediation Agreement dated 30 January 2012.

3.  This application is made in an environment of consistent and ongoing conflict. The parties seem unable or unwilling to compromise on even the smallest of issues. They were also unable to decide on the choice of senior school for V which necessitated a further hearing. Consequently the parties have been in and out of court on a regular basis following the original mediated agreement dated the 30 January 2012 and subsequent court order dated the 29 March 2012. In that order it was agreed inter alia that the Petitioner father would have sole custody and care and control of V with reasonable access to the mother. The issue of custody is not challenged and the mother has not sought to vary this aspect of the order. However she does seek considerably more access that the original mediated agreement allowed for. V was 8 years old at the time of the mediated agreement.

4.  There are also additional difficulties in that historically V has been very resistant to having overnight staying access with her mother. This has made it difficult for a more traditional order to be put in place whereby for example school holidays might be shared more or less equally and the parties might also either share or alternate the weekends.

5.  V has also been interviewed by the social welfare officer involved in her case on several occasions and also by the clinical psychologist. She has also met me so that she was able to express her own views directly with respect to the choice of a senior school for her. On this occasion however she has refused to participate in the interview process. It is therefore difficult for me to place too much reliance on either the old reports, which are now outdated or the updated reports.

6.  The other point to note is that as this case has progressed the mother has sought more and more access – so that as things stand at present she is arguably seeking more contact time than the father – notwithstanding the fact that the father has sole custody and care and control of the child.              

The issues

7.  The father has identified nine issues in his closing submission and counsel for the mother has identified four. In broad terms I agree that I need to determine a structure for access from now until V turns 18 years of age. This should include regular access during term time and access during public holidays and school holidays. These arrangements need to include staying and day time access as appropriate and arrangements during examination periods and on special days such as birthdays and Mother’s day.

Background to the marriage

8.  The parties married on the XX October 2000 and had one child V, who was born exactly three years later on the XX October 2003. It seems that unhappy differences arose between the couple and the parties separated but continued to live under the same roof from in or about March 2008. According to the mother much of the difficulty within the marriage related to conflicts concerning the appropriate way to parent V. The parties physically separated in August 2011 when the father did not return to the matrimonial home following a trip with V to Canada. From that point on V has resided with the father. On the 18 November 2011 the father issued proceedings for divorce based on two years separation. The parties entered into mediation and an agreement was reached on all matters and encompassed in a Divorce Mediation Agreement dated the 30 January 2012. This then formed the basis of the court order dated the 29 March 2012.

9.  As indicated in paragraph 1 above the mother now wishes to be released from certain undertakings in the mediation agreement. The relevant clauses are as follows:

5.4.2  Both parties agree that Ms. W (Respondent) shall have access to the daughter V on every Monday, Tuesday and Wednesday from 5:30 p.m. to 8:30 p.m. and she shall keep contact and keep in touch with the daughter V. Both parties agree that Ms. W shall meet the daughter V on every Monday, Tuesday and Wednesday at 5:30 p.m. at the school playground where the daughter studies.  The daughter V shall be delivered back to Mr. TPF (the Petitioner) at 8:30 p.m. that night at the A Entry of Taikoo MTR.  If any dates as mentioned aforesaid is a public/school holiday, Ms. W agrees to give one day notice to Mr. TPF by telephone and by email for making a decision.  Ms. W agrees to waive her rights to the access of her daughter V while during school examination (total 6 days per year).

5.4.3  Both parties agree that Ms. W shall have access to the daughter V on every 2^nd and 3^rd day of Lunar New Year, Easter holiday, daughter V’s summer holiday, Christmas holiday and Ms. W’s birthday, one day on each occasion (total 6 days).  Ms. W shall meet together with the daughter V and shall have right to keep contact and in touch with the daughter V.  Both parties agree that on every morning of 2^nd day of Lunar New Year at 10:30 a.m., Mr. TPF shall deliver and Ms. W shall pick up the daughter V at the A Entry of Taikoo MTR.  The daughter V shall be returned back to the same place at 6:00 p.m. that day evening.  Both parties agree that on every 3^rd day of Lunar New Year, Easter holiday, the daughter V’s summer holiday and Christmas holiday, one day on each occasion (total 4 days), Mr. TPF shall deliver and Ms. W shall pick up the daughter V at 12:00 noon at the A Entry of Taikoo MTR.  The daughter V shall be returned back to the same place at 6:00 p.m. that day evening.  Both parties agree that on every birthday night of Ms. W, she shall meet the daughter V for her birthday dinner.

5.4.4  As far as the arrangement of access as mentioned in paragraphs 5.4.2 and 5.4.3 above are concerned, both parties agree that Ms. W shall on the day prior to the access have an access arrangement discussion with the daughter V.  In case if either the daughter V or Ms. W is unable to attend the access, the access will be cancelled automatically.

5.4.5.  Both parties agree that in the future if either Mr. TPF or Ms. W need to change the time and place of any access, one day notice before the access, either by telephone and email, shall be given to each other.

5.4.7  Both parties agree and promised that the access arrangement mentioned in paragraph 5.4 above shall be made subject to the daughter V’s own welfare, health, interests and normal activities.  Both parties agree that should the daughter V is unable to present any access meeting as mentioned in paragraph 5.4. above, both parties shall not request the daughter V to attend the access meeting involuntarily.

(Clause 5.5.1. relates to financial matters).

Background to the litigation

10.  The parties have been at loggerheads over V for a considerable period of time. They disagree for example on the best way to treat V’s eczema and on her schooling. Staying access has also been a matter of considerable difficulty. On the 7 October 2014 the court made an order for interim staying access on alternate weekends from Friday after school until 6:30 pm on Saturday when V attends her ballet lesson. The mother drops V off at her ballet lesson and the father picks her up from there. In addition single public holidays are alternated with the mother having access on her days from 10:30 am – 8:30 pm. Access on Monday’s Tuesday’s and Wednesday’s was ordered to continue from after school until 8:30 pm.

11.  Unfortunately there were difficulties even with this minimal level of staying access and on the 31 December 2014, following the second Children’s Dispute Resolution hearing, the level of staying access was reduced during term time to once per month. Day time access on Monday’s Tuesday’s and Wednesday’s was ordered to continue during the term and a replacement mechanism was put in place for access during school tests and examinations in March and June. Staying access during the school holidays was increased slightly to two nights and day time access was also increased with the stipulated time stated to be from 11:30 am to 8:30 pm.

12.  On the 29 June 2015 an attempt was made again to increase term time staying access to twice per month from 4:00 pm on Friday to Saturday at 6:30 pm. Access on Wednesday’s was cut back to alternate weeks and the access arrangements for the school summer holidays was set out to include two longer weekends, one for July and one for August together with increased day time access over the summer on Tuesday’s and Wednesdays. An attempt was also made to incorporate more staying access over the Christmas school holiday and Chinese New year of 4 days/3 nights. In the absence of any agreement between the parties this was to take place in the first weekend of the school holiday i.e. from Friday after school until Monday evening. Single public holidays continue to be alternated.

The present arrangements for V

13.  V started senior school in September 2015.  At present she is taking extracurricular Japanese lessons on Monday’s and Friday’s after school – run by X University and ballet lessons on Wednesday  from 6:15 – 7:30 pm and on Saturday late afternoon. In addition she is learning to play the piano and she practices most days and has a lesson on Sunday afternoon’s at 4:00 pm. She also enjoys cooking and playing table tennis. In addition she has a very heavy academic work load as she is in a Band One English school. The father said at the end of the trial that she has 10 subjects to study and that she often does not get to bed until 12 midnight. Her normal bedtime is 11:30 pm. She gets up at 6:45/7:00 am. She also has pets i.e. a hamster, turtles and fish which she is responsible for looking after. V also likes to travel and she has historically enjoyed spending time with her extended paternal family in Canada.  

14.  In terms of the access V presently sees her mother as set out in paragraph 12 above. There are still difficulties however with the access arrangement and the staying access in particular continues to cause problems. Other disputes also arose during the examination periods.     

The law   

15.  As indicated before in the Ruling dated the 6 March 2015 on the choice of school and choice of the school net, the law governing applications concerning children is set out in s 3 Guardianship of Minors Ordinance, Cap 13, which states as follows:

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;

16.  The court is concerned with the best interests of the individual child and what might work well for him or her. It is generally understood that it is the right of the child to have an ongoing relationship with both of his or her parents.

The proposals made by each parent

The mother’s proposals

17.  The mother’s final proposal was put forward in counsel’s closing submission dated the 5 April 2016 as follows:

E.   R’s proposals

16. After the trial, in consideration of the evidence given, R has updated from her 4^th Statement of Proposal and makes the current proposal in regards to her access period:-

During School Term

(1) R shall have staying access on every weekend from after school on Friday to 9:00 pm on Saturday to V.

(2) R shall continue to have access to V on every Monday, Tuesday and Wednesday from after school until 9:00 pm.

(a) Alternatively, R shall continue to have access to V on every Tuesday and Wednesday from after school until 9:00 pm; or

(b) R shall continue to have access to V on every Tuesday from after school until 9:00 pm.

Long School Holidays

(3) The parties shall have staying access to V over the Long School Holiday being Lunar New Year holidays, Ester Holidays, Summer holidays and Christmas holidays equally as follows:

(a) Lunar New Year holiday shall be split equally with R shall have staying access commencing from 11:00 am on the Second Day of Lunar New Year to 9:00 pm on the last day of staying access.

(b) Easter holidays, Christmas holidays and Summer holidays shall be split equally.  P shall take the first half and R shall take the second half of the Easter holidays, Christmas holidays and Summer holidays in 2016 and all even years going forward.  R shall take the first half and P shall take the second half of the summer holidays in 2017, and all odd years going forward.

Single Public Holiday

(4) The parties shall alternate the single public holidays with Ching Ming Festival, the Birthday of the Buddha, HKSAR Establishment Day, and National Day in 2016 and all even years going forward to R and Labour Day, Tuen Ng Festival, Day following the Mid-Autumn Festival and Chung Yeung Festival in 2017 and all odd years going forward to R.  R’s access shall be from 10:30 am to 9:00 pm.

(5) R shall have access to V on every American Mother’s Day from 11:00 am to 9:00 pm.

(6) The parties shall remove V out of the jurisdiction of Hong Kong for holidays purposes exceeding 10 days each year unless with the consent of the other parent or with the leave of the Court.

(7) Notwithstanding the above said access arrangement, the parties shall attend the school events of V, and her examination of extra-curricular activities.

(8) The access in the above said (1) and (2) shall start at 11:00 am if it is a school holiday.

The father’s proposals

18.  The father’s final proposal was likewise attached to his lengthy closing submission as follows also dated the 5^th April 2016:

PETITIONER’S CLOSING STATEMENT OF PROPOSALS (2016-03-16) (for trial before H.H. Judge Melloy on 1st, 2nd, 3rd and 16th March 2016 at 10:30 am) The following proposals had been made reference to the recommendations from 1st, 2nd and 3rd Social Investigation Reports, 1st and 2nd Clinical Psychologist Reports and witness evidence and comments given in the witness box during the trial of the case on 1st, 2nd, 3rd and 16th March 2016. School days 1.   The Respondent shall have staying access twice a month on alternate weekend from after school at 4:00 pm on Friday to 6:30pm on Saturday to the child of the family, namely TWK, V (“V”) when she shall attend the ballet class.  V shall be dropped off at the ballet lesson by the Respondent and shall be picked up by the Petitioner at the end of the said ballet class. 2.   During the week with staying access, the Respondent shall have 1-day access on Wednesday from after school until 8:30pm; and during the week without staying access, the Respondent shall have 2-day access on Monday and Wednesday from after school until 8:30pm. [Ref: Paragraph 33 (ii) 2nd SI Report dated 17.6.2015 on School days: “…(the Respondent) to have 1 night staying access twice a month preferably from Friday to Saturday; …2 day access and 3 day access on alternative week, preferably 2 days couple with staying access..from after school to 8:30 pm.”]; and [Paragraph 41 (a) CP Report dated 22.12.2014 last 3 sentences: …in order to decrease the tension as related with the insecurity and struggles of the child experiencing in the staying access, the frequency of staying access should be decreased, e.g. from twice to once per month.] 3.   Access during test and examination periods shall be cancelled without replacement at V’s best interest. -   [Paragraph 5.4.2 of Mediation Agreement: (The respondent) Ms W agrees cancel her rights to access V during her examination period (total 6 days) -   Reference was made to the comments from clinical psychologist Ms L in the witness box. Other School Holidays 4.   The Respondent shall have 3 days and 2 nights staying access during V’s school holidays at Christmas, Chinese New Year and Easter.  For avoidance of doubt and in the absence of any agreement between the parties, the access shall take place in the first weekend of the holidays.  The school holidays access shall replace the school term access. [Paragraph 33 (iii) of 2nd SI Report dated 17.06.2015: Mdm W to have 1 or 2 night staying access cum day access, totally access day to be half period of school holidays, at their agreeable date and time.] 5.   In the event there is second week during the school holiday, the Respondent shall have day access during the following week on Monday and Wednesday from 11:30 a.m. to 8:30 p.m. 6.   Summer Holidays (i)   The Respondent shall have 3 days and 2 nights staying access to V on alternate week basis. For avoidance of doubt and in the absence of agreement between the parties, the staying access starts on the first long weekend of the full week holiday from 4:00 pm Thursday to 6:30 pm on Saturday. (ii)   For the weeks in (i) without staying access, the Respondent shall have 3-day day access on Monday, Tuesday and Wednesday on alternate week basis. [Paragraph 33 (i) of SI Report dated 17.06.2015: - If V has overseas trip with her father; Mdm W to have a 2 night staying access and 3 or 4 day access on alternate week, total access day almost half of the remaining summer holiday; -   If V has no overseas trip with the father, Mdm W to have day access and staying access on alternative week, including 3 night staying access once with 1 night next staying access; most preferably 2 nights; 3 or 4 day access a week.  Total access day almost half of the summer holiday.] Single Public Holiday 7.   The parties shall alternate the single public holidays including Ching Ming Festival, the Birthday of the Buddha, HKSAR Establishment Day and National Day in 2016 and all even years forward to the Respondent; and Labour Day, Tuen Ng Festival, Day following the Mid-Autumn Festival and Chung Yeung Festival in 2017 and all odd years going forward to the Respondent from 12:30pm to 8:30 p.m.

The recommendation made by the Social Welfare officer

19.  As indicated above both the Social Welfare officer and the Clinical Psychologist were in some difficulty at trial given that V appears to have “voted with her feet” and refused to participate in the latest round of reports. There could be many and different reasons for this and I do not intend to offer up any one hypothesise.

20.  In her concluding remarks the Social Welfare officer stated as follows in her updated report dated the 16 February 2016.

26. Both parents held diversified view on the future access arrangement.  They also expressed much co-parenting difficulty regarding access and other V’s matters in the present adjournment.  It reflected their communication problem and limited mutual trust.  For the best development of the child, parents’ continuous collaboration for child’s welfare after separation was most desirable and unavoidable.  Both parents may consider sacrificing their self-interest for V’s best interest.  Otherwise, V might easily be trapped between the parents’ conflicts.  In order to tackle the persisting co-parenting difficulty, establishing mutual trusting and respectful relationship, jointly participation of two parents in co-parenting counselling was highly recommended.

27. Due to V’s resistance to contact investigation social worker, no direct information or experience about access condition and future arrangement could be obtained from V.  Both parents also did not want to push V for the present social investigation, as they worried the negative impact the parent-daughter relationship and possible stress to V.  Talking about the future access arrangement of V who is a teenage, her wish and view should be considered.  However, lacking of such important information, it was difficult to make any recommendation regarding a change on the present access arrangement.

She agreed that the recommendations made in her previous two reports were now out of date and that the recommendations made could no longer be relied upon as she simply did not know what V’s own views were at this time.

The recommendation made by the Clinical Psychologist

21.  Likewise the clinical psychologist made the following concluding comments:

Conclusion and Recommendations

18. Information gathered from Mr. T suggested that Mr. T was still very committed and devoted in his parenting role.  His grave concern on V’s academic performance was noted and he had demonstrated his strong willingness and effort in facilitating the child’s learning and academic performance.  It seemed to me that he felt a bit frustrated for helping V as she, stepping into adolescent stage, may be at times rebellious towards his teaching and guidance though V may cherish his help at times.  He compared his parenting with that of Mdm. W and he tended to attribute V’s rebellious attitude towards him was to the relatively loose parenting of Mdm. W.  He remarked that the access days and duration were too much for V to spare time to manage the school demands.  His grievance towards Mdm. W was still present and he really hoped that Mdm. W would return the container he bought for containing the cream for V.  He objected further increase in staying access or time for day access.  My concern is that Mr. T’s emphasize on V’s study and his comparison on Mdm. W’s parenting could not bring any benefit to the father-daughter relationship.

19. Mdm. W enjoyed very much the current improved mother-daughter relationship which was more intimate than before.  She experienced that the daughter had grown up mentally and physically after she was promoted to Form One.  She had not yet fully sense V’s strong resistance in meeting helping professionals for talking about the access matter until V showed strong reactions.  Though Mdm. W perceived that V was a bit resistant to have more monthly staying access, she still wanted to make an effort try to fight for more chances to relate with her daughter in a more frequent term.  Her grievance towards Mr. T was still present and she did not want to communicate with him.  Though she sensed that V may be trapped in the middle now because V had developed good relationship with her and at the same time she wanted to protect the father’s feeling, Mdm. W preferred to communicate with V directly.  As reflected from her description, I have a concern that Mdm. W still tended to place her own pace and need to connect with the daughter higher than that of V’s feeling and needs.

20. I had no chances to meet V and cannot gather her views.  It seemed to me that V’s refusal might be a reflection of her need for autonomy and her firm position of not want to get involved much in the parental disputes.  As a child of twelve years old, she had demonstrated her enough ability to refuse by verbal expression or in physical resistance to see anyone or to face with the access arrangement.  As noted, V had very busy schedule for her extra-curriculum activities and probably heavy school work and demand.  It may not be easy for a girl who can always maintain an average level and have good social relationship in a Band One school.  I opined that the parents should try their best to set aside their dispute on access for the best benefit for the child and to give a least disruption of the current condition to make a smooth transition for V from childhood to adolescence stage.

22.  When answering a question posed by the court Ms L suggested that it might be possible to eliminate the after school access on Monday’s Tuesday’s and on alternate Wednesday’s altogether because the mother and daughter would be able to communicate by electronic means in any event and their relationship was much improved from before. She thought that V might then be able to enjoy her after school activities more freely and have time for all of her homework and revision. She also thought it might be possible to increase the staying access slightly. In so far as the holidays are concerned she preferred the staying access to remain as currently ordered without any further increase.

Discussion

23.  The difficulty with the mother’s proposal, if I were to put that proposal at its highest, is that it would mean that V will spend much more time with her than with the father – notwithstanding the fact that the father has sole custody and care and control. V would only have Thursday after school and evening and Saturday evening and all day Sunday with her father. I do not accept that the little time that she has with her father after access with her mother on Monday’s Tuesday’s and Wednesday’s is very significant in this context. When I put this to the mother in the witness box she said that she would miss V very much otherwise. As I pointed out to the mother however, this is not about what is best for her but rather what is best for V. I also have some concerns that this arrangement is putting too much pressure on V. It is also difficult to see how she will be able to fit a social life of her own into this schedule once she gets a bit older.

24.  The other point to note is that although access to the non caretaking parent three times per week after school may be perfectly appropriate for a younger child, it is not so appropriate for an older child. The difficulty is that normally by that stage the older child would be having regular overnight staying access with the non resident parent. Unfortunately that has not happened here.

The character of the parties and their relationship with V

25.  Both parties appeared unwilling or unable to compromise on even the smallest of matters. I have no doubt that their continual bickering causes V much distress. I accept that V has a close relationship with her father and that this continues notwithstanding a more rebellious attitude on her part from time to time as she gets older. He appears to be a devoted father.

26.  I also accept that V has a closer relationship with her mother than before and that this is likely to be important for her as she enters into adolescence. Thus it is important for V to have regular contact with both parents.

The mediated agreement

27.  For the avoidance of doubt both parties will be released from the undertakings given in paragraphs 5.4.2, 5.4.3, 5.4.4, 5.4.5 and 5.4.7 of the Mediated Agreement dated the 30 January 2012.

Access during the school term

28.  Generally speaking I accept that V should have significant periods of time at home with the father and that this is necessary if she is going to keep on top of her homework etc. Although I appreciate that V does some of her homework at her mother’s I accept that she often has to top this up when she returns to her father’s home after access. This is not sustainable longer term especially as V’s level of homework is likely to increase as she gets older. Having given the matter some thought therefore I am going to make an order that the mother shall continue to have staying access twice per month on alternate weekends from after school at 4:00 pm on Friday to 6:30 pm on Saturday. The drop offs and pickups shall continue as before with the mother dropping V off at her ballet lesson and the father picking her up from there. I anticipate however that V will eventually stop taking ballet. In that event the mother’s access shall end at 6:30 pm.

29.  In so far as day time access is concerned I have considered eliminating this as suggested by Ms L the clinical psychologist. The difficulty with that suggestion however is that the contact between the mother and daughter would then be seriously curtailed – especially given V’s resistance to full weekend staying access. In such circumstances I will make an order that the mother have access to V on Monday’s and Wednesday’s after school. The access shall be from after school or the extracurricular activity until 8:30 pm. I accept that it would be helpful for V to have both Tuesday’s and Thursday’s after school at her father’s home on a regular basis. Both parties shall be responsible for ensuring that V has time to do some homework when she is in their care.  This will mean that V has two evenings during the week with each parent and that the weekends are shared once every two weeks. The father will also have one full weekend with V once every two weeks. As I have said I accept that V should have some longer periods of time to do her homework at her father’s home.

30.  In so far as the school exams and tests are concerned – I also accept that during those periods the access during the week shall be cancelled. There will be no makeup access. It seems that the issue of makeup access has caused a lot of friction between the parties and for no useful purpose. This is a matter of some regret. In such circumstances it seems more sensible to simply cancel the access during the exam period.    

The school holidays 

31.  Unfortunately V appears historically to have been resistant to increased overnight staying access during the school holidays. It is not clear what her present views are on the subject. This is also unfortunate. Ms L was of the view that the holiday arrangements should not be altered. The father appears to be of the same view whereas the mother is proposing a more radical departure with V having staying access with her for half of the school holidays. The difficulty with imposing this sort of order is that there is a possibility that V will simply choose not to comply with it. Doing the best that I can in the circumstances therefore I will make an order that allows for the mother to share in significant public holidays as follows:

Christmas school holiday

a) This is normally a two week holiday. Last year V spent Christmas day with the mother. There was however an incident over this period which I will not go into her, but suffice it to say that V did not spend as much time at her mother’s home as had originally been intended. The original order was that the Respondent shall have 4 days/3 nights staying access with V during the Christmas, Chinese New Year and Easter holidays. In the absence of any agreement this staying access was to take place during the first weekend of the holiday – i.e. generally from Friday after school. The mother now asks that the Christmas holiday be split and the father asks that the staying access be reduced to 3 days/2 nights and that in the event that the holiday is for two weeks that the mother shall have access to V on Monday and Wednesday during the day in the second week from 11:30 am – 8:30 pm.

b) There are normally a number of special events during this school holiday including Winter solstice, Christmas day, Boxing Day and New Year’s Day. Generally speaking if parents split this holiday one parent would have Christmas day/Boxing day and the other would have New Years day. I accept however that V is unlikely to agree to staying access for 7 days. I am also conscious of the fact that the arrangement did not work particularly well last Christmas. Going forward then the parties shall alternate Christmas day/Boxing day and New Year. In 2016 V shall spend three nights with her mother from the 30 December 2016 – 2 January 2017 i.e. from 11:30 am on the 30th December 2016 to 8:30 pm on the 2 January 2017. This arrangement will take place in all even years. In all odd years V shall spend three nights with her mother from 11:30 am on the 24 December to 8:30 pm on the 27 December. This means that V will spend the Christmas period with her mother. This arrangement will begin in 2017 and will continue in all odd years thereafter. The winter solstice evening shall be alternated between the parties with the father having winter solstice in 2016. Other than as set out above the Mother shall have access to V on Monday’s and Wednesdays from 11:30 am to 8:30 pm. For the avoidance of doubt if part of the overnight access falls on either a Monday or Wednesday there will be no additional access.

Lunar New Year

c) The mother has asked for access from 11:00 am on the second day of the Lunar New Year and asks for half of the holiday. The father’s position is as set out above. The school holiday is normally for 10 – 14 days. Going forward then the father will have New Years Eve and the first day of the Lunar New Year. The mother shall have overnight staying access to V from 11:30 am on the second day of Lunar New Year to 8:30 pm the following day. Otherwise the Mother shall continue to have access to V on Monday and Wednesday’s from 11:30 am to 8:30 pm during this period. For the avoidance of doubt if part of the overnight access falls on either a Monday or Wednesday there will be no additional access.

Easter holidays

d) This is normally a two week holiday with Easter being a four day holiday. This holiday will be alternated between the parties with the mother having Easter in 2017 and in all odd years and the father having Easter in all even years commencing in 2018. Thus the mother shall have access to V from 11:30 am on Good Friday to 8:30 pm on Easter Monday from 2017 onwards. In even years the mother shall staying access to V for three nights/four days on the last weekend of the holiday commencing on Thursday morning at 11:30 am to Sunday at 8:30 pm. Otherwise the Mother shall continue to have access to V on Monday and Wednesday’s from 11:30 am to 8:30 pm during this period. For the avoidance of doubt if part of the overnight access falls on either a Monday or Wednesday there will be no additional access.

The school summer holidays

e) I accept that in an ideal world both parties should have an opportunity to take V away on holiday during the summer. I have not however been addressed on this specifically during the trial. I also accept that V is unlikely to agree to simply splitting the summer holiday period. Consequently I am inclined to accept the father’s proposal as set out in paragraph 18 (6) above.  In the event that either party wishes to take V away for a holiday then they will each need to make an application to the court in the normal way.

Single Public Holidays

f) The parties are in agreement that single public holidays should be alternated as set out in paragraphs 17 (4) and 18 (7) above. An order will be made in those terms. However the parties are not agreed on the time for access. For the avoidance of doubt the access shall be from 11:30 am to 8:30 pm.

32.  In addition the mother shall have access to V on Mother’s day from 11:30 am – 8:30 pm. In the event that the parties’ birthdays fall during V’s time with the other parent then the arrangement shall be altered so that V has dinner with the birthday parent from after school until 8:30 pm if it is a school day or from 4:30 – 8:30 pm otherwise.             

Costs

33.  Given that this is a child related matter I shall make no order as to costs.