GKLJ v. WE also known as WFYE

CACV 168/2022

[2022] HKCA 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 168 OF 2022

(ON APPEAL FROM FCMC NO. 16521 OF 2015)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I.  The appeal

1.  This is an appeal by the respondent mother (‘the Mother’), pursuant to leave granted by this Court, against the judgment of Deputy District Court Judge Jacqueline Lee dated 27 January 2022. The Judge varied the access arrangement agreed by the petitioner father (‘the Father’) and the Mother in April 2018 in respect of their child J now aged 11. That agreement was embodied in a consent order dated 11 April 2018 (‘the 2018 order’).

II.  Background

2.  The following is a summary of the background of the case.

3.  The parties were married in February 2009, having met in 2000. The Father is now 55 and worked as a department head of a bank. He was recently made redundant by the bank. The Mother is now 46 and is a full‑time mother. She used to work in the financial industry.

4.  On 29 December 2015, the Father petitioned for divorce. On 14 March 2016, the Father and the Mother agreed that they have joint custody of J with sole care and control of J to the Mother. Under the 2018 Order, the Father and the Mother agreed by consent to have shared care and control of J, in the following terms :

1)  J spending Wednesday afternoon (or 5 pm if not a school day) until 9 am Sunday with the Father; and

2)  J spending Sunday 9 am to Wednesday morning (5 pm if not a school day) with the Mother.

5.  The divorce decree absolute was granted on 30 May 2018.

6. On 12 March 2020, the Mother issued a summons to vary the 2018 order. The Judge summarised the change sought by the Mother in her summons and also the proposal by her at the Pre‑Trial Review (‘PTR’) as follows:

(1)  Mother’s Summons

During Term Time

a)  Week 1 [1(a)] of the Mother’s Summons

(i)  One overnight stay with the Father on Thursday from 7:30 pm to Friday morning, allowing the Father to take him to school on Friday.

b)  Week 2 [1(b)] of the Mother’s Summons

(i)  J will stay with the Father from Friday 7:30 to Monday morning, allowing the Father to take him to school on Monday.

The Mother also specified that for the periods : (1) Beginning of November to the last school day of December and (2) Beginning of May to the last school day of June, the above Week 1 and Week 2 arrangements ‘shall be dispensed with’ and the Mother will ‘compensate’ the Father with the arrangement that he could spend time with J from Friday 7:30 pm to Sunday 9 am every week ([1(c)] of the Mother’s Summons).

Term Breaks (October break, Christmas, Chinese New Year, Easter and Summer)

(i)  As above.

2)  Mother’s proposal at the PTR

During Term Time

(i)  J will stay with the Father every Friday 6:30 pm to Saturday 6:30 pm.

Term Breaks

a)  Week 1 J will stay with the Father from Friday 6:30 pm to Saturday 6:30 pm.

b)  Week 2 J will stay with the Father from Friday 6:30 pm to Sunday 6:30 pm.

7.  In summary, the Mother sought to reduce the access time of the Father in her summons and sought to further reduce it in her PTR proposal. Her proposal would only allow the Father to have 24 hours’ access per week during term time, and only 3 nights over 2 weeks during J’s long holidays.

III.   Basis of the Mother’s application to vary

8.  In the Mother’s affirmation (5^th affirmation) in support of the variation, she stated that J’s best interests were not being served by the agreed access arrangements and J continued to suffer the ill‑effects of that arrangement. The Mother complained of the Father’s parental failings. J has been under performing at school. In December 2020, J’s school notified the parents that although J was attending Primary 5, he was performing at Primary 3 level only. J failed three out of four of his core subjects in Primary 5. He was given a ‘probational promotion’ and had been requested to resit his mathematics examination in August 2021. J managed to push his mathematics grade up at the resit and his school agreed to promote him to Primary 6. In November 2021, the school raised the issue that J may not be able to promote to secondary school, and it suggested that J should work on his mind set about study and improve his learning attitude. J also has behaviour problems at school. Dr. Visher had prepared a psychological evaluation of J :

‘J’s key cognitive challenge is with visual-spatial processing impacting his organisation, capacity to focus and executive functioning. J is also experiencing ongoing elevated anxiety and lowered self-concept after significant changes in his family situation. Both factors contribute to a lack of attention and focus. J’s symptoms are consistent with a twin diagnosis of Non-Verbal Learning Disorder (NVLD) and Adjustment Disorder with Mixed disturbance of Emotions and Conduct…’

9.  The Mother contended that as a full‑time mother, she is fully available for J and is able to give consistent care and targeted support to J, while the Father’s time was all taken by his employment.

IV.  The Judge’s Decision

10.  The Judge did not accept the Mother’s proposal. Instead she accepted the Father’s proposal so that the Mother is to have access of J from afterschool to 6 pm on Wednesday, Thursday and Friday.

11.  The Judge heard the evidence of the Father and Mother. She also heard the evidence of the social welfare officer, Ms Tam who had prepared two social investigation reports (‘SIRs’) and the single joint expert Dr Craigen who had prepared a psychological evaluation of J. The SIRs recommended maintaining the status quo of the access arrangements. Dr Craigen recommended a slight adjustment to the access arrangements by suggesting J to have an additional overnight stay at the Mother’s place on Wednesday evening. The Judge also read the report of Dr. Visher.

12.  The Judge found both parents to be loving and caring parents. She did not accept that J’s academic performance and behaviour problems were caused by the Father. She held :

‘ 47. In short, I do not accept the Mother’s case that J’s academic underperformance was caused by the Father’s inability to give him consistent care and targeted support. It is not objectively substantiated by any of the reports. As one can see from the observations of the reports, the family situation no doubt has significant impact on J, but J also faces challenges with his visual-spatial processing and/or other executive functions.

48. I do not find that it is fair to suggest that J’s academic underperformance is caused by the current access arrangement. In fact, neither Dr Craigen nor Ms Tam ever suggested that the current care and control arrangement is the cause or the root-cause of J’s academic underperformance.’

13.  The Judge found J’s problems are caused by the on‑going conflict of his parents :

‘ 60. The effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. I agree with both Ms [Tam] and Dr [Craigen] observations that there are a number of factors which caused J’s academic underperformance. J’s academic underperformance becomes one of the factors which affected J’s behaviour. The other factor is the parents’ on-going conflict which caused J to have loyalty conflict and anxiety.’

V.  The notice of appeal

14.  In the notice of appeal, the Mother asked for the following relief :

1)  J be under her sole care and control.

2)  During school term, J will stay with the Father every Friday 6:30 pm to Saturday 6:30 pm. The rest of the time J will stay with her.

3)  During the four long school holidays of Christmas, Easter, Summer and October; J will be with the Father from 6 pm on Thursday evening to 9 am on Sunday morning. For the rest of the time J will stay with her.

15.  While the Mother had originally set out in the draft notice of appeal many grounds of appeal, the only ground we granted leave to appeal is that the new arrangement imposed by the Judge, i.e. the Mother will have additional access of J from afterschool to 6 pm on Wednesday, Thursday and Friday is chaotic, plainly wrong and not in the best interest of J.

16.  The Mother’s complaint is that under this new arrangement, she and J are in a constant race against time to carry out their tasks and to travel to and from the J’s school and their respective homes: the Father lives in Happy Valley, the Mother lives in Pokfulam and J’s school is in Aberdeen. She detailed the problems in her 9^th affirmation which is admitted for the purpose of the appeal on a provisional basis. She said that the daily travel time was between 45 minutes to one and a half hours. This means that she and J only have one and a half hours together and many of the essential daily tasks cannot be performed. She said J is under a ‘strict time frame and a ticking clock. He is constantly rushing and now lives his life under tremendous pressure, even more so than before’. J had expressed disappointment and sadness to the new arrangement.

17.  With leave of this Court, the Father had filed an affirmation, in which he took issue with the Mother’s evidence on the travelling time and indicated he was prepared to move to be closer to the Mother’s residence so as to reduce J’s travelling time.

VI.  Our View

18.  The Mother’s summons below did not seek sole care and control of J and this should not be entertained on appeal. The only issue is the new arrangement. The problems of the new arrangement arose after the judgment below was made. Although the Father said the travelling time between the various locations is less than what the Mother said, we recognized the Mother and J might encounter problems arising from the rather short time frame within which there might be various tasks that had to be accomplished. As the Court is only concerned with the best interest of J and if the problems encountered by the Mother and J impacted on J’s best interest, then it is a reasonably arguable point for the purpose of granting leave. However, as the case of G v G [1985] 1 WLR 647 reminded us, appeals in custody cases or in other cases concerning the welfare of children are not subject to special rules of their own. Rather, as the appeals are concerned with the exercise of a judicial discretion where on the same evidence different judges might reach widely different decisions, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.

19.  The question ultimately is whether the Judge’s decision is plainly wrong. We are unable to say it is. Nor do we feel able to say it is beyond the generous ambit where judicial discretion is to be exercised. After all the Judge’s decision to reject the Mother’s application is in line with Ms Tam’s recommendation and also, apart from the Wednesday overnight access, it is in accordance with the recommendation of Dr Craigen. The Mother chose not to follow Dr Craigen’s recommendation and pursued her own access proposal. Although Dr Craigen under cross‑examination by the Mother accepted that the Mother’s proposal is ‘a workable option’, nonetheless she maintained her own recommendation. She said that it will help to promote the relationship between the Father and J because J is going to have a more hands‑off approach and encourage his independence as a young man : J is now sitting on that cusp of change as a young adolescent or pre‑teen. Although the short duration of access on Wednesday to Friday is unusual, the Judge was probably trying to give both parents an equal amount of time on these three days while J is helped with his homework. She explained the proposal :

‘ 11. ......The Mother is to have care of J from afterschool to 6 pm on Wednesday, Thursday and Friday, when the Mother could supervise and do school work with J. The Mother is being asked to bring J to the Father at 6 pm, so the Father could continue to see J at dinner, follow up with his school work in the evening, and take him to the school bus on Thursdays and Fridays.’

20.  We also recognize that the current school term will soon finish on 21 June. This is followed by the summer vacation and in late August J is going to secondary school where he will probably have different school hours, work schedules and afterschool activities which may require adjustments to the access arrangements. We do not consider it would be in the best interest of J to vary the access arrangements, which only came in place in late January, at this point and to change it yet again after the summer vacation. In our view, the more appropriate course is to leave the new arrangement as it stands and for either of the parents, if necessary, to seek variation from the Family Court which will have a fuller picture by then of J’s schooling and afterschool activities. We will encourage the parties to search for common grounds on the access arrangements which plainly will be in the best interest of J for them to do so.

VII.  Conclusion

21.  We will dismiss the appeal with an order nisi that there will be no order as to costs.