CHAN v. SUEN

[English Translation – 英譯本]
FCMC2500/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 2500/2014

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Judgment
(Custody)
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Introduction

1. This trial is about an application in respect of the rights of custody, care and control of the petitioner (mother/wife) and the respondent (father/husband) of their two sons.  The two sons are aged 9 and 7 respectively and studying in the same primary school.  The younger son has special educational needs and lives with the mother after the parents’ separation.  It has been recommended in the social investigation report that the status quo be maintained and the parents have joint custody with the care and control of the children given to the mother and reasonable access to the father.

2. On the date of the trial, both parties consented to joint custody of the two sons but could not reach an agreement on their care and control.  The mother requested the care and control of both sons while the father asked for the care and control of one son, and both parties basically agreed that the other parent would have reasonable access.  The father wished to have the care and control of the children but has yet been certain if he wanted to have the care and control of both sons at the same time.  During the period pending the updated social welfare report, he indicated to the social worker his wish of having the care and control of the younger son in case he could not have that of both, nevertheless, at the trial he requested the care and control of one of the sons.  The mother objected to separate custody and alleged that the father asked for the care and control of the son(s) only because of the current public [housing unit].

Background

3. The father (now aged 38) was born in the mainland and is the sixth child of a family having seven children.  His parents are both Hong Kong residents.  He came to Hong Kong for family reunion in 1993, and his siblings have also come and settled in Hong Kong one after the other.  The father has finished the first year of secondary school in the mainland.  Since 1997, he has worked as a cook.  During the period between July 2014 and February 2015, his working hours were from 2:00 pm to 2:00 am.  Since the employer had closed down the business, he has stopped working for some time.  At the time of the trial, he indicated that he was working as a substitute cook.  He is now living at the matrimonial home with his two elder sisters who have just been granted one-way permits.

4. The mother (now aged 34) was born in the mainland and has one younger brother.  In 1995, she was granted a one-way permit and came to Hong Kong.  Her father has passed away.  Since early 2010, she has been working at the fast food shop operated by her mother from 7:30 am to 8:00 pm. Since the separation, she has moved away with the domestic helper and the two sons and has been living temporarily at the residence of her mother and younger brother.

5. The two parties got married in Hong Kong in 2005, and the two sons, who were born in 2006 and 2008 respectively, are now primary three and primary one pupils.  Because of matrimonial problems and family disputes, the mother called the police for help in January 2013, and since then the family has been a case followed up by the social workers.  The persistent matrimonial and family problems remained unresolved.  On 14 February 2014, the father complained that the mother had not been giving sufficient care to the sons and even applied violent force on her.  The mother called the police for help.  On the same day, she moved away from the matrimonial home with the two sons and the domestic helper and stayed in her maiden home.  Because of this incident on 14 February 2014, the father was bound over to be of good behaviour.

6. On 4 March 2014, the mother petitioned for divorce on the ground of unreasonable behaviour.  The court granted a decree nisi of divorce on 29 July 2014.  During that period, the two parties disputed on the issue of custody.  Social welfare report was called for and a children’s dispute resolution hearing was held on 24 December 2014, but no agreement was reached.

7. On 24 December 2014, this court fixed the trial of the case be held on 22 and 23 April 2015, asked for an updated social welfare report and ordered both parties to file affidavits within 42 days in respect of the trial of the children’s custody.  The father did not file any affidavit as ordered, for which the mother took out a summons on 6 March 2015 to require him to file an affidavit within 7 days.  The father was absent in the hearing of the summons, and on 20 March 2015, I made an order in his absence that he had to file an affidavit within 7 days.  Nonetheless, the father did not file any affidavit.

8. On the first day of the trial, I explained to the father the trial procedures.  He indicated that he understood but elected not to give evidence and would put forward his requests only by way of submission.  Therefore only the social worker and the mother testified at the trial.

The mother’s case

9. The mother agrees to the social worker’s recommendation that the care and control of the two children be given to her.  She says that she has all along been the main carer of the two sons and she understands their needs.  The father has never looked after the two sons on his own.  He is of hot temper and has at times scolded her with foul languages in front of the two children, and he has even resorted to violence on her and the maid.  Since she could no longer tolerate the father’s unreasonable behaviour, on 14 February 2014 she left the matrimonial home with the two sons and the maid.  With the maid’s assistance, she continues to take care of the two sons.  She does not agree to separate the two sons and says that she is capable of keeping them under care and control.

10. According to the mother, the father’s working hours as a cook are long and his work is unstable.  He is of hot temper and easily resorts to violence.  His family can provide only limited help.  It is therefore not appropriate even if the care of only one son is given to him. Furthermore, the younger son has speech problem, hyperactivity disorder, attention deficit and dyslexia and needs regular treatment, and hence it would be to the boy’s benefit to maintain the existing care.

11. Nevertheless, the mother admits that the father’s care to the two sons is of equal importance and agrees to have joint custody and cooperate in respect of access arrangements as the actual situation requires.  She is willing to communicate in advance by phone or text messages so as to minimize the risk of having conflict and to enhance the cooperation between parents on the children’s issues, which would be more beneficial to the two sons.

The father’s case

12. The father agrees the content of the social welfare report as well as joint custody, however he does not accept the social worker’s recommendation of giving the care and control of both children to the mother.  The father admits to be suffering from mania but says that the violent incident alleged by the mother was minor for which he was only ordered to be bound over, and that he was even acquitted in respect of the alleged assault on the maid.  The father argues that the mother needs to work and is unable to take care of both sons at the same time, and since the sons also often quarrel, separate custody would be the most desirable arrangement, and the mother may choose first as to which son is to be put under her care and control.  The father is now working as a substitute cook and would try to find a permanent job as a cook.  To him, it does not matter which son is put under his care and control, and his family would help him.

13. In the father’s view, the mother has deliberately made life difficult for him in respect of access visits, obstructing the two sons to go along with their father and the paternal family or join their gatherings.  He wants to have more involvement in the two sons’ affairs. Since the separation and the moving out of the matrimonial home by the two sons with their mother, the home has instantly become quiet and forlorn, and he has no spiritual sustenance and motivation in life.  He also wants to do something as compensation to the children and thus wishes to have the custody of one son.

Issues in dispute

14. Both parties consent to have joint custody and agree that the parent who is not given the rights of care and control should have reasonable access.  At the trial, both parties have reached an agreement on how to communicate to minimize the risk of conflict, and the mother agrees that the father may contact the school and tuition centre to enquire about the two sons’ academic progress and she would cooperate in this regard.  Both parties have also reached consensus on future access. However, their views are still different in respect of the arrangement of custody.  The issues in dispute in this case are:

1. Should the two children be put under separate custody?

2. How should the care and control of the elder son and the younger son be dealt with?  And

3. How should costs be dealt with?

Law

15. Before dealing with the evidence, it is advisable to first look at the laws of Hong Kong applicable to applications regarding matters of illegitimate children, and the general principle applicable to such applications is set out in section 3 of the Guardianship of Minors Ordinance (Cap 13).  The relevant part of the ordinance is in the following:-

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-

(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; and

(ii) shall not take into consideration whether, any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b)  ... a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

16. Moreover, the checklist laid down in section 1(3) of the English Children Act 1989 in relation to the welfare of children is of high reference value:

Checklist

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

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, [maturity,] sex, [societal and cultural] background, and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

17. Furthermore, it is also worthwhile to make reference to the list in this regard in the Law Reform Commission report of March 2005, which, apart from the factors for consideration under section 1(3) in the Children Act 1989 above , it is also suggested that the following factors be taken into account:

(a) the nature of the relationship of the child with each of the child's parents and with other persons;

(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(c) any family violence involving the child or a member of the child's family;

(d) 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;

(e) any other fact or circumstance that the court thinks is relevant.

Children’s Dispute Resolution Hearing

18. The aim of the Children’s Dispute Resolution Hearing implemented pursuant to Practice Direction 15.13 is basically to support the parents so that they are able to effectively parent their children after separation or divorce.  The purpose is to ensure that whilst the best interests of children remains the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere.  The focus is therefore on the children’s best interests together with the duties and responsibilities of their parents.

19. Both parents have to attend the children’s dispute resolution hearing to discuss about the arrangements for their children, and shall give their best endeavours to reach an agreement on all relevant matters pertaining to their children.  Unlike a financial dispute resolution hearing, a children’s dispute resolution hearing is not privileged, and therefore if no settlement can be achieved, anything said or any admission made in the course of the hearing shall be admissible as evidence in trial.

Social Welfare Investigation Report

20. The social welfare officer of this case has been following up the case since the court ordered for a report on 22 July 2014, and she has prepared a total of two social welfare reports for this case, which are dated 30 October 2014 and 1 April 2015 respectively.  As she has observed over the past six months or so, the two sons have been properly looked after.  They are studying at the same school where they have lessons from 8:30 am to 4:30 pm.  They are taken to the school by the maid.  In the afternoon, after school, they have some teatime snacks at the fast food shop where their mother works, and after that the maid takes them to a tutorial centre nearby.  At around 7:00 pm, they go back to the fast food shop, and after having their homework checked, they have dinner and return home after that.  Shortly after the parents’ separation, because of the arrangements of work, the father has tried his best to pick up the children after school on weekdays so as to have access.  However, since the two children are enrolled on tutorial classes one after the other, such access arrangements has not been able to continue.  Although the court on 13 November 2014 made an order which temporarily defined the access arrangements, both parties have managed to discuss and arrange access by themselves, and day and overnight access have been carried out smoothly.

21. The elder son indicated in the first investigation report that he knew his parents were going to divorce and thought they would turn into good friends.  He wished the parents to continue to play a part in his matters and also wanted to continue to live with the mother together with his younger brother and be able to meet the father or stay overnight at the father’s place on holidays.  However, in the second investigation report, he expressed his wish of living with both parents together with the younger brother.  In respect of access, he would be equally happy when meeting either his father or mother.

22. As to the younger son, in the first investigation report, he seemed to know but not fully understand the parents’ divorce.  He indicated that he could have two places of residence after his parents’ separation and wished the parents to continue to play a part in his matters and to live with them.  In the second report, he expressed his wish of living with his parents and his elder brother.  As to access arrangements, he indicated that he would miss his mother when he was with the father, and also miss his father when he was with the mother.  He wanted to meet the parents more often.

23. The mother has all along wanted to have the care and control of both sons to maintain the status quo.  In the first investigation report, the father once indicated that if he could not have the rights of care and control of both sons at the same time, he would still want to have the care and control of the younger son, but he subsequently resumed and maintained the wish of having the care and control of both sons in order to avoid separating the two brothers, which might affect their ties of brotherhood.  However, in the second report, he again expressed the wish of having the rights of care and control of the younger son if he could not have the care and control of both sons at the same time for the reason that the two brothers often quarrelled to compete for toys and mobile phones, and they should better be separated.  It was also said that if in future he did not have time to take the younger son to follow-up medical appointments, his relatives could help.

24. The investigation officer is of the view that both parents love their sons and ought to learn to put aside the unhappy experience and differences in the past, go hand in hand together to pragmatically cooperate and participate in the two sons’ important matters, and make rational decisions in the best interests of their sons so that both sons can benefit from their parents’ love and care at the same time.  Moreover, the two brothers get on well with each other, and since they are young, if they are to live apart, it is believed to be difficult for them to develop a solid and strong bond of brotherhood.  Thus, allowing the two brothers to continue to live together and giving the rights of care and control of them to one of the parents would be in the best interests of the two children of the family.  Therefore, it is recommended to give joint custody but not separated care and control.

25. As to care and control, the investigation officer finds that since both parents love the two sons, have established a good parent-and-children relationship with each of them and would employ a maid to help in taking care of them, both parties can take care of the two sons.  However, having regard to the current arrangements, continual care provided by the present carer can reduce the change in the sons’ life.  Furthermore, in the light of the younger son’s special educational needs in respect of his conditions including speech problems, attention deficit and hyperactivity disorder, if his carer can meet his needs in supervision of behaviour in daily life and speech training and so on persistently, stably and consistently and take him to follow-up medical appointments so that he/she can personally understand his condition and progress, it ought to be more beneficial to the child.  On the contrary, having too many carers dealing with his speech and behaviour problems may bring inconsistent requirements for his speech and behaviour, causing difficulties of adaptation.  Therefore, the investigation officer recommends that the mother be given the care and control of the two sons.  In addition, since the two parties have managed to arrange access by themselves smoothly, it is recommended that the father be given reasonable day and overnight access.

Assessment of evidence

Care and control

Present condition of the children of the family

26. The mother is all along the main carer of the sons and everything has been arranged by her.  The elder son is aged 9 and is now a primary three pupil.  He works and rests as scheduled.  He has fixed time for lessons from Mondays to Fridays and is taken to and from school by the maid.  After school, he first goes to the fast food shop where his mother works to have teatime snacks and then goes over to the tutorial centre opposite to have tuition.  After that, he returns to the fast food shop where his mother checks his homework and has dinner after finishing all the homework.  After dinner, he and his younger brother go home together in his mother’s company.  He has tuition sessions and goes to interest classes on Saturdays and Sundays respectively. The younger son, aged 7, is a primary one pupil.  He goes to the same school with his brother and the timetable is similar.  His schedule for daily life is also similar to his brother’s.  The two children’s performance in the main subjects is just moderate, and both parents indicate that they need to rely on the tuition centre to help the sons’ schoolwork.  The tuition is arranged by the mother, while the father once doubted why the sons have to do homework at the fast food shop after dinner. The mother explains that the tuition centre prioritizes exercises which are thus done first, and homework involving copying would have to be done later at home if there is not enough time.  Due to the two children’s moderate academic performance at school, it is thought that the current arrangements of tuition classes and extra-curricular activities are in their best interests.  The father has never taken the initiative to go to the sons’ school to enquire about their condition there, nor has he approached the tuition centre to try to understand the services provided.  After consideration, the mother is found to be more attentive in the sons’ studies.

27. The children’s health is also looked after by the mother.  The elder son has sought medical treatment because of having pain all over the body, of which the cause has yet been found out, and now he has to attend follow-up medical appointment once every 5 months in his mother’s company.  The younger son has speech development problems and attention deficit with hyperactivity disorder and has special educational needs.  He has to go to different specialist departments of hospitals in various regions in the mother’s company to receive medical treatment and attend follow-up appointments regularly.  The father has indicated to the investigation officer that the younger son is slow in eating and has attention deficit with hyperactivity disorder, and that if he is to take care of the younger son, he would try his best to attend his medical appointments with him, and his relatives can help when he is too busy to go.  Up to now, the father has never personally attended to the younger son’s special needs.  The younger son needs not only an adult’s company in attending medical appointments, what he needs more is a carer who can cope with the needs in his daily behaviour supervision and speech training in a persistent, stable and consistent manner.  After consideration, it is of the view that in the near future, only the mother is able to attend to the younger son’s needs in this regard.

Children’s wish

28. The elder son has indicated in the first welfare report that he wished to live with his mother together with his younger brother, but said in the updated report that he wished to live with his parents together with the brother.  He expressed that he was happy to see either of his parents.  The younger son in the first welfare report indicated that he had two places of residence after the parents’ separation, and said in the updated report that he wanted to live with his parents together with his elder brother.  According to him, when he was together with one of the parents, he would miss the other one.  He wanted to meet the parents more often.  Both children have indicated the wish of living with both parents.

29. I agree with the investigation officer’s observation that both parents have endeavoured to minimize the adverse effect caused to the children by the divorce and avoid making them the heart of their conflict.  It is not uncommon for children to argue at times, from which they can in fact acquire some social skills.  Both boys have expressed the wish of living with their brother, which reflects their harmonious relationship.  I agree that if the two brothers are put under separate custody at the present stage, it would be relatively difficult for them to develop a strong and solid brotherhood bond.  They have already undergone one family change because of the parents’ separation, and at present, while they have just adapted to the new living arrangements, it will not be in the interests of these two closely-tied little brothers if they are further separated and put through another change.

Father’s suggestion

30. Although the father has elected not to file in any affidavit or testify, he had previously indicated in the children dispute resolution hearing (Resolution Hearing) that the (then) access arrangements were acceptable, and in any event he requested to have the care and control of the two sons.  He said that his family would assist, his residence was close to the sons’ school, he would hire a domestic helper and make use of the tuition centre, and the two sons could go home at around six to seven o’clock in the evening.  At that time, he said that his working hours were from 10 am to 10 pm with breaks in between, which is different from the working hours of “2 pm to 2 am” that he had told the investigation officer.  In any event, the father is now a substitute cook and, in view of his previous working hours, the time he works in future will probably be similar.  On school days, the children have to go to the tuition centre to do homework after school.  Comparing with the mother’s working hours from 7:30 am to 7:00 pm, the time the father can spend together with the sons is less.

31. The father said in the Resolution Hearing that the mother had to rely on the maid and the tuition centre.  His proposal would nonetheless put him in the same position.  According to him, his proposal is better in the sense that his family can help and his residence is closer to the boys’ school.  It is true that the father has more relatives in Hong Kong, nevertheless, the grandparents told the investigation officer that whether the father was given the care of or only the access to their two grandsons, they were ready to coordinate with him and provide assistance.  It is clear that even if the care and control are given to the mother, so long as the father requests, the grandparents are willing to help.  For the father’s siblings, some of them are new immigrants and have their own plan of work and life, and they at most can only play a supporting role, or otherwise, the father would not have to hire a maid.  Up to now, the younger son always attends the follow-up medical appointments in his mother’s company.

32. In the Resolution Hearing, the father mainly complained that the two sons could not return home for rest until very late at night, by then they were already very tired and their studies would be affected.  The mother is now living with the sons at her maiden home which is relatively far away from their school.  However, since the mother is working at the maternal grandmother’s fast food shop which is near their school, they would have dinner at the fast food shop before going back home.  In the Resolution Hearing, the mother said that she could arrange both sons to go to bed at 9:30 pm.  In cross-examining the mother, the father pointed out that he had seen her still working in the fast food shop when he walked past at 8:30 pm, and hence challenged her that she did not finish work at 7:00 pm.  The mother at the trial agreed that sometimes the two sons were still having dinner at the shop at 8:30 pm.  She testified that the fast food shop closed at 7:00 pm, however, since the children had to finish homework before having dinner, and sometimes it was not until later at night that the younger son who was dyslexic managed to finish all homework, she could only try her best to bring them home before 9:00 pm.  After consideration, the court accepts the mother’s testimony and agrees that the arrangement of first having some teatime snacks and then having dinner after finishing the homework is to the two children’s benefit.

33. It is worth-noting that the father still asked the mother for reconciliation at the Resolution Hearing.  However, he has never suggested he himself move out to let the mother and sons move back to the matrimonial home so that their travelling time can be shortened. The mother testified that the father had told her that he could not get himself accustomed to living at small premises.  It would not be difficult to understand why the mother thought the father made the requests for the purpose of retaining the eligibility for continuing to stay at the matrimonial home.  The two aunties who recently emigrated and settled down in Hong Kong are now living at the matrimonial home temporarily.  The current matrimonial home is a public housing unit which will certainly be disposed of by the Housing Department in accordance with the existing policies after the divorce.  The mother and two sons may no longer need to stay at the maiden home in future.  The father’s current complaint that the residence and the school are too far apart may not exist in the long term.  After consideration, I do not think that the father’s proposal put forward in the Resolution Hearing is better than the mother’s arrangements.

34. Since the two parties could not reach an agreement on the care and control of the children, the case was adjourned for trial and the investigation officer was requested to prepare an updated report. Obviously, the father also found that the proposal put forward in the Resolution Hearing was in no way better than the current arrangements, he told the investigation officer that he wished to be given the custody of the younger son if he could not have the care and control (custody) of both sons.  This contradicts what he had agreed previously, namely, separate custody would affect the brother’s ties and give rise to conflicts.  He explained to the investigation officer that the brothers presently often argued to compete for toys and mobile phones, and hence he thought separate custody would be more desirable.  If that was the case, why did he not directly ask for the custody of the younger son but instead requested the younger son’s custody only when he could not have the custody of both sons[?]  The investigation officer did not recommend giving the custody of the younger son to the father in light of the child’s special needs.  After consideration, I am of the view that the father has not carefully considered the younger son’s interests before seeking the custody of the child.

35. The father has no dispute over the factual background obtained from investigation in the two reports prepared by the investigation officer. Obviously, after considering the younger son’s needs, the father also realized that his hasty request for separate custody was not in the younger son’s benefit, hence at the trial, he requested in the opening submission to have separate custody and let the mother choose first, and upon knowing that the mother requested to maintain the status quo, he expressed his willingness of having the custody of either son.  If the impact caused by the longer distance between the school and the residence on the two boys’ rest time was his true concern, separate custody was simply not the solution.  If he was truly concerned about how the two sons got along with each other and believed that separate custody was the solution, why did he suggest separate custody on the premise that he would fail to get the custody of both sons, and why did he not take careful consideration before requesting the younger son’s custody and afterwards indicated that the custody of either one would suffice?  He, while complaining the mother for failing to take care of the two sons on a full-time basis because of her work, also admitted that the sons could be financially supported only if both parties worked to make money.  After consideration, it is considered that maintaining the status quo is the best way to protect the best interests of both children of the family.

Access

36. The father made no complaint about access in the Resolution Hearing.  The investigation officer testified that both parties had been able to cooperate in the arrangements for access by the time she prepared the updated report.  The father in the opening submission said that he had some problem with the access during Easter while he requested to take the two children out of the territory to visit relatives.  The mother refused his request on the ground that the travelling documents had expired, which in his view was just an excuse she used to make life difficult for him.  On the second day of the trial, the mother produced the two children’s expired travelling documents and agreed to ensure that the documents would always be effective for at least six months in future.

37. The mother testified that the father had hot temper and scolded her non-stop with abusive words whenever he lost temper, which she could not tolerate but had to hang up the phone.  She agreed that the two parties could communicate with each other if the father did not scold her with abusive words, and she wished him to show her respect.  The father admitted that he was suffering from mania but did not agree that he swore, and in his view, he and the mother managed to communicate and cooperate with each other.  Both parties agreed to communicate by text messages in future to avoid the previous unhappy experiences over telephone conversations from happening again.

38. At trial, the mother suggested that the children should finish the homework before the access visit, the father’s response was that he could help them in their homework though limited only to copying, Chinese dictation and arts and craft.  The mother also accepted that it might not be practical to require the children to finish all homework before the access visit during long holidays and agreed to let the father be responsible for guiding them to finish the homework that he was able to help.  The father agreed the mother’s suggestion that for the first three to four days of long holidays, the children have to do their homework first, and then the remaining time would be equally divided for the mother to have the first half and him the latter half.  Both parties also agreed that in case of any request for variation, final arrangements should be discussed and confirmed by text messages not less than three weeks beforehand.  For predictable special days, such as access on birthdays, both parties agreed to have the arrangements discussed and confirmed by text messages not less than three weeks beforehand.  For unpredictable occasions, such as banquet invitations from friends or relatives, accidents and critical illness, both parties agreed to have the arrangements discussed and confirmed by text messages as soon as possible upon being notified.

39. The mother agreed to give the father a copy of the two sons’ timetables of the current school term within seven days and send him a text message with a copy of the new school term timetables within seven days upon the receipt so that he can make advanced arrangements for the sons’ activities during the holidays.  In respect of going out of the territory, I have told both parties that leave from court is required for either parent to arrange the two sons to go out of the territory for touring, visiting relatives or joining studying tours, and hence they have to discuss well in advance and apply to the court for leave within a reasonable time.  Therefore both parties must also notify the other side the plan of going out of the territory one month beforehand.

Conclusion

40. Both parties consent to have joint custody.  The mother agrees that for the purpose of having joint custody of the sons with the father, she will give the father’s contact information to the tuition centre within seven days to enable him to enquire the tuition centre on his own about the sons’ condition.  The mother says that the school has already had the father’s contact information, and she will upon receiving the school notices send him a text message copying them to him.  She will also send the preliminary assessment result of the younger son’s learning ability to him by text message within seven days to enable him to understand more about this son’s condition and will also upon receiving the updated assessment result forward a copy to him.

41. The circumstances have been carefully considered in its entirety, including the age of the two children of the family, their needs in respect of daily life and education, their relationship with the parents and the relationship between them, the parents’ attitude towards the children, how the parents view their own parental duty, the wish of each member of the family, arrangements for caring the children and the impact of changing the existing circumstances on the children.  After consideration, it is confirmed that maintaining the current arrangements for caring with minimal change is the most effective way to protect the best interests of the two children of the family.

42. For the above reasons, it is ordered that the two parents shall have joint custody of the two sons with the care and control of the said children given to the mother and reasonable access to the father.  I reiterate that both parents are equally important to the two children of the family.  It is hoped that the parents continue to communicate and cooperate with each other, directly communicate with each other by text messaging to minimize unnecessary conflict, respect each other and more effectively cooperate for the benefit of the two sons.

Costs

43. It is found that since the father had not given his best endeavours in the [Resolution] Hearing, no agreement was reached in respect of the care and control of the two sons, and hence this trial had to be arranged.  The father nevertheless failed to make good use of the chance to put forward better arrangements to the benefit of the two sons and did not file any affidavit as ordered by the court, which resulted in the application by the summons on 6 March 2015.  The mother was granted legal aid and the costs concerned will be paid by public funds.  Whether it is for the purpose of reconciliation or of reserving the eligibility for the existing public housing unit that the father asks for the care and control (custody) of the two boys is truly unknown.  However, from the father’s repeated changes of stance, namely changing from the request for the custody of both sons to the custody of the younger son, to finally the custody of either son, it can only be inferred that he has not regarded the best interests of the two sons his priority.

44. The father has failed in obtaining the rights of care and control, hence he should be liable for the costs.  Having considered that the father did not testify and time has been spent on discussing about the access and the means of communication between the two parties in future, the appropriate way to deal with the costs is:

1) In respect of the arrangements for children, there be no order as to costs up to the children dispute resolution hearing on 24 December 2014, and the mother’s own costs to be taxed in accordance with the Legal Aid Regulations.

2) The father to pay the mother the costs of the application of the summons of 6 March 2015, to be taxed if not agreed, and the mother’s own costs to be taxed in accordance with the Legal Aid Regulations. 

3) The father to pay the mother 50% of the costs relevant to this trial, to be taxed if not agreed, and the mother’s own costs to be taxed in accordance with the Legal Aid Regulations.

The above order nisi shall become absolute at the expiration of 14 days if there is no further application.

Order

Upon the petitioner and the respondent consent to joint custody of the two sons.

And upon the petitioner’s undertaking to provide the father’s contact information to the tuition centre and send a text message to the father with copies of the two sons’ school timetables and a copy of the preliminary assessment result on the younger son’s learning ability.

And upon the petitioner’s consent to send text messages of copies to the father within 7 days after receiving the two sons’ new school term timetables and within 7 days after receiving the younger son’s updated assessment result on his learning ability.

And upon the consent of the petitioner and the respondent to the following principles of the access arrangements in long holidays:

1) Let the children do homework on the first three to four days of the long holidays, and then equally divide the remaining holiday time with the petitioner having the first half and the respondent the latter half.

2) In case of any request for variation, the final arrangements shall be confirmed upon discussion not less than three weeks beforehand.

3) For predictable special days, such as access on birthdays, the arrangements shall be confirmed upon discussion not less than three weeks beforehand.

4) As to unpredictable incidents, such as banquet invitations from friends or relatives, accidents and critical illness, both parties shall discuss and confirm the arrangements as soon as possible after being notified.

And the petitioner and the respondent agree that the arrangements for children in future will be communicated by text messages.

It is ordered as follows:

1. The petitioner and the respondent shall have joint custody of the two sons.

2. The petitioner shall have the right of care and control of the two sons.

3. The respondent shall have reasonable access to the two sons.

4. The petitioner shall at any time ensure that the two sons’ travelling documents be effective for not less than six months.

5. For the arrangements of children, there shall be no order as to costs up to the children dispute resolution hearing on 24 December 2014, the mother’s own costs shall be taxed in accordance with the Legal Aid Regulations.  This cost order nisi shall become absolute at the expiration of 14 days if there is no further application.

6. The respondent shall pay the petitioner the costs of the application of the 6 March 2015 summons, to be taxed if not agreed.  The petitioner’s own costs shall be taxed in accordance with the Legal Aid Regulations.  This cost order nisi shall become absolute at the expiration of 14 days if there is no further application.

7. The respondent shall pay 50% of the costs relevant to this trial, to be taxed if not agreed.  The mother’s own costs shall be taxed in accordance with the Legal Aid Regulations.  This cost order nisi shall become absolute at the expiration of 14 days if there is no further application.