K V v. S P

FCMC 11048/2019

[2020] HKFC 191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11048 OF 2019

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  J U D G E M E N T

 (Care and Control)

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Introduction

1.  This is the hearing of the petitioner mother (the ‘Mother’)’s application for the care and control of the younger daughter (‘Anu’) of the family. The respondent father (the ‘Father’) opposes her application.

Background

2.  Both parties are Hong Kong permanent residents of Indian origin.  Neither speaks much Cantonese or English and are native Punjabi speakers.  The Father, aged 44, who came to Hong Kong in 1997, is a construction site worker.  The Mother, aged 36, who came to Hong Kong in 2004, is a dish washing worker.  The parties were married in 2004 in Hong Kong.  Within wedlock the elder daughter (‘S’) was born in 2005 and the younger daughter (‘Anu’) was born in 2014 in Hong Kong (together ‘the children’).

3.  The Mother left the matrimonial home, a public housing unit, leaving the children to the care of the Father in March 2018.  From March to November 2018, the Father quitted his job to take care of the children at home.  In May 2018, the Mother petitioned for divorce under FCMC 6294/2018.  In November 2018, the Mother took Anu to live with her.  The Father resumed working in November 2018.  In March 2019, the Father employed an Indian helper to stay at his home to take care of the children and the household chores. 

4.  On 25 June 2019, upon the Mother undertaking to file a fresh petition on 1 year separation with consent, before Her Honour Judge Melloy:

(1)  It is ordered that each party’s respective position in relation to the arrangement for the children shall be set down for a CDR hearing scheduled for 24 October 2019; and

(2)  It is by consent further ordered that during the summer holidays, the parties shall alternate the weekend with effect from 13 July 2019 in that: -

a)  Both children shall be in the care of the Mother from 10 am on Saturday, i.e. 13 July 2019 to 4 pm on Sunday, i.e. 14 July 2019;

b)  Both children shall be in the care of Father from 10 am on Saturday, i.e. 20 July 2019 to 4 pm on Sunday, i.e. 21 July 2019;

c)  The Mother shall pick up and return S when both children are in her care;

d)  The Father shall pick up and return Anu when both children are in his care;

e)  The above arrangement shall be alternate and continued until further order.

5.  On 13 September 2019 the Mother filed a fresh petition based on the ground of 1 year’s separation with consent under the present proceedings. 

6.  On 24 October 2019, by consent it is ordered by Her Honour Judge Melloy that:

(1)  Joint custody of the children of the family, be granted to the parties;

(2)  Care and control of S be vested in the Father and the interim care and control of Anu be vested in the Mother;

(3)  (a)   With effect from 25 October 2019 the parties shall alternate the weekend in that:-

(i)  both children being in the care of the Mother from 5 pm Friday until 10 am on Sunday subject to the Mother being available to care for the children or to make appropriate arrangement for both children;

 (b)   The public holiday shall be shared as follows:

(i)  the Father shall have access to both children in 2019 Christmas and 2020 Easter holidays, from 10 am on 25 December 2019 from 6 pm on 26 December 2019 and from 10 am on 10 April 2020 to 6 pm on 13 April 2020 respectively; and

(ii)  the Mother shall have access to both children in 2020 New Year and 2020 Chinese New Year holidays, from 10 am to 6 pm on 1 January 2020 and from 10 am on 25 January 2020 to 6 pm on 28 January 2020 respectively. 

(iii)  The above arrangements be alternated every year.

(c)   During other public holidays, other single public holidays or dual public holidays shall be shared on an alternate basis as follows:-

(i)  The Mother shall have access to both children on 30 April 2020, 1 May 2020, 1 July 2020 and 26 October 2020;

(ii)  The Father shall have access to both children on 25 June 2020, 1 to 2 October 2020; and

(iii)  The above arrangement shall take place from 10 am until 6 pm on the same day or from 10 am on the first day until 6 pm on the second day.

(d)   During Diwali festivals, the parties shall have access to both children in two evenings after school on an annual rotation with the effect that the Mother be granted access on 11 November 2020.

(e)   Each year on giving one-month notice in writing to the other party, a party may take both children within the school holidays for a holiday up to 14 days either within or outside the jurisdiction provided that the notice gives details of location and itinerary including accommodations.  Otherwise, no leave for the parties to remove the children from the jurisdiction.

(f)  It is directed that in the event that the Mother is unable to care for or to arrange appropriate care for the younger child, especially during the school holidays, the younger child shall be in the care of the Father during those periods.

(4)  The issue of care and control for Anu shall be adjourned for trial.  There shall be a PTR hearing in that respect on 7 February 2020 at 9:30 am.

(5)  Both parties do personally attend that hearing.

(6)  There be liberty to apply.

7.  A further Order dated 5 June 2020 set directions for this hearing all of which are substantially met.

8.  The following issues now fall to be determined by this court:

(i)  Should care and control of Anu be vested in the Mother or in the Father?

(ii)  Once the above has been determined, what arrangements should be made for access?

9.  Despite their differences in the issue on the care and control of Anu, the parties accept that:-

(i)  both parents have the roles and responsibility over the welfare arrangement of the children and the parties should have joint custody over the welfare of Anu;

(ii)  both children should live together as they have good sibling relationship;

(iii)  the other party should have reasonable access if the care and control of Anu is granted to either party.

10.  The Mother’s case is as follows:

(1)  The Father likes drinking alcohol and will break things at home after drinking too much.  The marital relationship has been not good all along and the Father has used physical violence against her.

(2)  The Mother decided to move out in March 2018 because the matrimonial home is registered in the Father’s name with the Housing Authority.  She is seeking the Housing Authority to consider her divorce suit and to allocate a public housing unit for her to live with the children.

(3)  The Mother is a dish washing worker.  Her working hours are normally between 8:30 a.m. and 4:30 p.m.  Anu is attending full time kindergarten and her school usually finishes at 4:30 p.m.  S is studying Form 2 and her school usually finishes at 3:30 p.m.  The Mother usually returns home from work at about 5 p.m.  Then she spends all time in taking care of two children.  During weekdays, after she prepares the meals, finishes household chores and helps Anu in bathing, they will spend time on chatting and watching TV.  During weekends and holidays, when she does not have to work, she will take the children out to do some shopping and at times buying shoes and clothing for them. 

(4)  In view of her young age, Anu naturally needs her more than the Father.

(5)  The Father, who has to work during weekdays and Saturdays, needs the home helper to take care of the children.  When Anu is in his place, she is taken care of by the home helper instead of the Father.

(6)  The Mother is the only one who used to take care of the children’s schooling, such as buying books and uniforms for the children and attending the teacher-parent meetings.  

(7)  The Mother wants the children to do well in school.  She can teach and assists Anu in her homework.  S takes help in her homework from private tutors in a tuition centre. 

(8)  S once told the Mother that she would consider living with her in case the Mother moved closer to Tsing Yi.  However, she has recently changed her mind.  The Mother suggests that it is because the Father has coached the elder daughter to turn against her.

(9)  The Father alleges that the Mother has only taken care of Anu for about 8 days in the month of May 2020.  This is not the case.  Since the Order dated 24 October 2019, she has complied with the court order to look after the children according to the terms of the said order.

(10)  Since May 2020, the Mother has rented a flat in Tsing Yi.  There are two bedrooms in the flat of about 400 to 450 sq. ft.  The children have their own bedroom.  The living room is spacious and there is a study table for the children to study at home.

(11)  The Mother wants Anu well and will take good care of her.

11.  The Father’s case is as follows: -

(1)  The Father is a construction site worker.

(2)  According to the Father, the marital relationship is nice.  He is a social drinker but not a habitual drinker.  There has never been any incidence of violence between the parties.

(3)  After the Mother left the matrimonial home in March 2018, the Father quitted his job to take care of the two children at home. In November 2018, the Mother took Anu to live with her.  In late March 2019, he employed an Indian helper to stay at his home to take care the children and the household chores.  Despite the Mother’s case that since November 2018 Anu has been living with her and despite that the order dated 24 October 2019 provides for Anu to live with the Mother, the Father suggests that Anu spends more time living with him than with the Mother.  S is residing with him

(4)  They have 2 bedrooms, 1 dining room, 1 living room, 1 bath room, 1 kitchen.  While he is at work, the domestic helper looks after the children.  If he is not working, he will take care of them.  During school holidays, he will bring them to beach and parks.

(5)  He has met and talked with the school teachers about the family’s change of circumstances.  He agrees to take photos of the school report and share on phone message with the Mother and talk with her about the children’s progress.  He agrees to attend school functions with the Mother such as parents’ evenings and sports days.  If any of the children has problems at school, the school can contact both the Mother and him.

(6)  Although Anu is struggling in school, due to language difficulties, neither parent can be of much assistance to the child in her school work.  S attends Form 2 and is proceeding in a stable condition in general.  She is ready, willing and be able to assist Anu in her school work.  Thus, Anu should stay at his home during the week Sunday night to Friday morning at the very least and care and control should be given to him.

(7)  The Mother should have access on the weekends and major holidays.  The children can communicate with the Mother by mobile when they are with him during the weekdays.

(8)  Ms. Wong, the case social worker, recommends care and control be given to him.

Applicable legal principles

12.  The law governing applications concerning children in Hong Kong can be found at s.19 Matrimonial Proceedings and Property Ordinance, Cap. 192 where it is stated that the court has the power to make such order as it thinks fit for the education and custody of children under the age of 18 years.

13.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which refers to the welfare of the child as being the first and paramount consideration of the court.

14.  There is a checklist recommended by the Law Reform Commission that many judges have found useful when determining issues relating to children.  I shall not refer to this checklist in its entirety when considering the issues, but I shall refer to those sections which seem to me to be of particular relevance when considering the matter overall.  For ease of reference, I reproduce the checklist below:

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

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

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

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

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

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  The range of powers available to the court in the proceedings in question.

(l)  Any other fact or circumstance that the court thinks is relevant.

Discussion

15.  I now turn to consider the issues, the law and the parties evidence as set out in their Form J and affirmations and as given orally by them during the hearing.  I heard from Ms. Wong, who attended court to give evidence.  Ms. Wong has prepared two Social Welfare Reports dated 11 June 2019 and 28 July 2020 respectively. 

The child’s physical, emotional and educational needs; How capable each of the child’s parent is of meeting her needs

16.  Both parents make complaints against the other in relation to each side’s ability to take care of the child. 

17.  In the Social Welfare Report dated 28 July 2020, Ms. Wong reported the caring and access arrangements of Anu between June 2009 and June 2020 as follows: -

Caring and Access Arrangement of Anu between June 2019 and January 2020

8.  Anu was staying with the mother from Monday to Friday and staying with the father from Friday to Monday between June 2019 and January 2020.  As usual practice on school days, the mother went to father’s home to bring Anu to school directly on Monday morning.  The mother would then arrange Anu to attend school and to take care of Anu after school from Monday to Thursday. The mother would bring Anu to father’s home after school on Friday.  As the mother would usually be engaged at work during weekends, Anu would stay at father’s home from Friday afternoon to Monday morning.

9.  When interviewed, the mother claimed that she had arranged weekend overnight access for Anu about half of the total weekends between June 2019 and January 2020 as she had job duty on the other weekends. However, both the father and S revealed that the mother had not arranged any day access or overnight access for Anu during weekends in those eight months as the mother usually had work duty on Saturdays and Sundays

10.  As disclosed by the father, there were a few times that the mother told the kindergarten staff that Anu was sick and did not attend school.  The mother then brought Anu to father’s home. Nevertheless, the father did not find any sickness of Anu.  The mother came to bring Anu back at night time.  In view of such, father believed that the mother could not arrange off duty on time and then could not provide care and supervision to Anu immediately after school on those days.

Caring and Access Arrangement of Anu between February 2020 and June 2020

11.  Between February 2020 and early June 2020, Anu had no school day as there was class suspension owing to COVID-19 pandemic.  The mother alleged that she left Anu at the father’s abode when she had work duty, and kept arrange Anu to stay with her about 2-3 days a week between February 2020 and May 2020.  Nevertheless, both the father and S insisted that the mother paid no visit or arranged no access for Anu between February 2020 and May 2020. The mother only resume access arrangement for Anu after attending the court hearing on 5.6.2020.

12.  According to the record from the father and S, the mother only resumed access to Anu on 9.6.2020.  The mother brought Anu out from father’s place in the late afternoon on 9.6.2020 and brought Anu back to father’s place at 6:15am on the next day. The mother would only arrange Anu to stay with her in case she had day off on Saturday.  Nevertheless, Anu would stay at father’s home during mother’s duty day on Sunday.  This pick up pattern continued throughout June 2020.

18.  In the same report, Ms. Wong set out Anu’s school performance as follows: -

Schooling Performance of Anu

13.    According to Ms TANG, Anu’s class teacher, Anu’s school attendance at K.3 was unstable between September 2019 and January 2020 (the mother was responsible to take care of Anu on school days during the period).  The absent record of Anu from school and the notes the mother made were summarized as follows:

	Days of absent/total number of school days (from school record)	Notes made by the Mother
September2019	3 absent out of 20 days (12/9 Thursday, 13/9 Friday, 30/9 Monday)	Mother alleged that Anu only absent for 1 day with no reason provided.  Later on mother claimed that Anu had no absent during this month.
October 2019	5 absent out of 21 days (11/10 Friday, 17/10 Thursday, 18/10 Friday 24/10 Thursday 25/10 Friday	Mother alleged that Anu attended school on all school days during this month
November 2019	1 absent out of 14 days (25/11 Monday)	Mother claimed to forget the reason of Anu’s absent.
December 2019	5 absent out of 14 days (16/12-25/12) No medical certificate was received from mother upon school teacher’s request	Mother claimed that Anu was suffering from chicken pox.  She did not get the medical certificate from doctor. Besides, teacher did not call her to ask for the medical certificate.
January 2020	1 absent out of 12 days (20/1 Monday)	Mother claimed that Anu attended school on all school days during this month.

14.  Class was suspended owing to the COVID-19 pandemic from February 2020 to 14^th June 2020. After class resumption on 15.6.2020. Ms TANG revealed that Anu had full school attendance (Anu attended school from father’s place during the period).

15.  According to Ms TANG, Anu could not communicate with teachers and classmates either in English or in Chinese. She could only understand Indian from one of the teachers at kindergarten.  Anu was very weak in learning and could not perform homework writing independently.  On school days between September 2019 and January 2020 (the period which Anu was placed under the care of the mother during school days), the writings in Anu’s homework liked the writing style of an adult which were far beyond Anu’s writing ability. School teachers had shared with the mother about Anu’s slow learning progress but no improvement was noted whi1e Anu was placed under mother’s supervision.

16.  When the mother was first interviewed by the investigating officer, she claimed that she would teach Anu and supervise her to finish homework.  The mother commented that Anu could write nice words with her assistance, but insisted that she did not finish the homework for Anu. However, during investigating officer’s second interview with the mother, the mother admitted that she was incapable to supervise Anu’s study and did not do any revision with Anu at home.

17.  After class resumption in June 2020, Anu was staying at father’s place after school.  The father arranged Anu to attend school by school bus daily.  S helped to supervise Anu’s homework after school.  The mother took Anu with her after Anu finished her homework at father’s place.  As commented by Ms TANG, the writings in Anu’s homework was surely written by Anu during this period.  There was marked improvement in Anu’s learning and in her understanding of teachers’ instruction during lessons.  Improvement in Anu’s school attendance and homework completion were noted while Anu was under the care and supervision of father and S from June 2020 onwards.

19.  In conclusion, Ms. Wong states

28.  During the social investigation, both sides of the parents held different versions on the detailed care and access arrangement of Anu between June 2019 and May 2020.  As there was no written record on both sides and Anu was too young to tell the truth, the true picture could not be verified.  Yet, there was also discrepancy on Anu’s school attendance and homework supervision between the Mother allegation and class teacher’s records and observation.  Anu was observed to receive very limited guidance and supervision on her study when she was under mother’s care immediately after school but Anu’s study performance improved after receiving guidance and supervision from S after school from June 2020 onwards.

29.  Both sides of parents showed love and concern on Anu and were ready to take up the care and control responsibility on her.  However, as both parents were not grown up in Hong Kong, they were not familiar with the school curriculum here.  S, who was grown up and study in Hong Kong since birth, played a significant role in supporting Anu’s study.  Presently, S was living together with the father and was ready to render homework supervision on Anu in case Anu to be placed under father care and control.  S expressed her strong resistance to live together or even make contact with the mother.  S was not ready to stay at mother’s place and to render any child care assistance to the mother.

30.  To sum up, Anu could receive a stable child care arrangement at father’s place with the assistance of S and the Indian helper of the family.  With such child care arrangement, Anu’s daily routine would not be disturbed, especially during her school days. On the contrary, the mother was engaged at work with no social support.  Although the mother loved Anu and had tried her best to manage the caring of Anu, including negotiating Saturday day off with her employer and renting a bigger flat which was closer to father’s place, her guidance and supervision on Aus’s learning and social development was still relatively weak.

31.  From June 2020 onwards, the mother cou1d manage to pick up Anu after the latter finished her homework at father’s place under the homework supervision from S.  However, the homework and revision demand in primary school would be much more than that in kindergarten level.  Anu should be in need of more reliable guidance and stable support while it might cause much burden on Anu in case she needed to travel between both parents’ places after finishing all her homework and revision when she was promoted to primary school in September 2020.

20.  Ms. Wong recommends care and control be given to the Father because he offers a stable child care arrangement.  In contrast, the Mother always has to juggle between taking care of the child personally and work commitments. 

21.  Above all, it appears from information that I can gather from Ms. Wong’s report that, during the interim care and control period, when Anu was taken care of by the Mother, she was missing school and falling behind in her school work.  Anu is in K3 but has below average cognitive performance.  She has significant delay in language, weak in word reading and significant development delay.  It is suggested she attends a special child care centre in September 2020 for a year before proceeding to mainstream school.  Both parties prefer her to attend mainstream school.  Neither parent, due to language difficulties can be of much assistance to the child in her school work.  S attends F2 and is proceeding in a stable condition in general and is placed 45 out of 160 in the whole form.  S, who lives with the Father, is ready, willing and able to assist Anu in her homework.

22.  The Mother suggests that the Father has coached S against her.  In this regard, S’s view is worthy of noting.  In the Social Welfare Report dated 11 June 2019, Ms Wong reported S’s view as follows:

26.  S commented that the quality of care by the mother was not satisfactory. Under mother’s management, the home was not in tidy and hygienic condition. Furthermore, the cooking of her mother was not very well.

27.  S disclosed that she preferred living with father instead of with mother.  First of all, her father showed love and concern on her.  Secondly, the living condition of father’s place was spacious and was close to her social network. Thirdly, the father managed her daily routine well and took good care of her. Fourthly, with the assistance of the Indian helper, her daily care was now catered at an even better quality.

28.  She had once told her mother that she would consider living with her in case her mother moved closer to Tsing Yi. However, she had changed her mind recently.  As claimed, the mother needed to work hard to earn her living and could not have holiday frequently.  There were several episodes that her mother could not take leave from work but requested her to take leave from school so as to take care of Anu at home.  Luckily, the father had no job order at the material time and could help to take care of Anu.  In the end, S was able to attend school as usual.  S foresaw that in case she and Anu were placed under the mother’s care, they would probably be left unattended at home or be arranged to father’s home to wait for mother’s pick up after work at late night.

29. Although in traditional mindset, girls are better to be cared by parent of same sex, S communicated with father well, and could share her thoughts with father and the helper well in case she had special need in her upbringings. She believed that the care arrangement by father was better than by mother.  S expressed that she all along maintained good and close relationship with Anu.  She hoped that both she and Anu could be placed under the care of the father.

23.  In the Social Welfare Report dated 28 July 2020, Ms. Wong stated: -

24.  S commented that the mother was an irresponsible and self-centered person.  The mother was busily engaged at work and could not provide a stable child care condition for Anu.  The mother could only offer Aus to watch television at home but could do little on teaching or supervising Anu’s study after school.  The mother had not arranged any access or visit to Anu while Anu was staying at father’s place between February 2020 and May 2020.  However, the mother was dishonest towards the Judge at Family Court.  The mother only resumed access arrangement for Anu after attending the court hearing on 5.6.2020.  S viewed that the mother only concerned her own benefit, and did not put Anu’s welfare as the prime concern. She strongly believed that the mother insisted to fight for the care and control of Anu mainly for the aim to get a tenancy of public rental housing unit from Housing Authority.

25.  S expressed her annoyance to act as the middleman between her separated parents. She was blamed by the mother that her negative views on the mother were influenced by the father.  Nevertheless, S stated that she was an adolescent with independent thinking.  Her negative comments on the mother was mainly based on her past experience and her observations.  It had nothing to do with the influence from the father.

26.  S strongly refused to have any contact with the mother and to pay any more visit to mother’s place.  She enjoyed the caring arrangement at father’s place as the father was a responsible person and the Indian helper was taking good care on the family’s diet, daily routine and home hygiene.  She was maintaining good sibling relationship with Anu.  She would like to live with Anu at father’s place in order to ensure the best care and supervision to A.  She was committed to render assistance in supervising Anu’s study in case Anu was allowed to be placed under the care and control of the father.

24.  I tend to accept Ms. Wong’s view that S’s negative views on the Mother are mainly based on her past experience with the Mother.

25.  The Mother suggests that the children are taken care by the home helper instead of the Father when they are in his place, and that she is the only one who really cares about the children and spending time on them.  The Father stresses that if he is not working, he will take care of the children.  Having seen the Father in the witness box, I am satisfied that he shows love and concern on the welfare of the children.  It also seems to me the fact that the Father quitted his job to take care of the two children at home during the period from March 2018 to November 2018 shows his love and concern for the welfare of the children.  I accept that Anu’s physical, emotional and education needs are generally provided by the Father when she is with him.  

26.  The Mother holds a strong belief that Anu is very small and is in need of care and concern from mother. She believes that girls are more free to discuss things with mother than with father in their upbringings.  The Mother suggests that in view of her young age, Anu should live with her.  In Brixey v Lynns [1996] 2 FLR 499 (HL) (Scotland), (per Lord Jauncey at 505 B-D), it is said:-

“My Lords, to summarise, the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However, where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail. Such is not this case.”

27.  Anu is aged 5 and is going to attend P.1.  As she is in young age, she cannot make a decision with a clear and independent thinking.  She requires close guidance and supervision from adults in her present developmental stage.  Ms. Wong’s observation is that the social support on the Father’s side is relatively stronger when comparing with the Mother’s side.  With the help from S as well as the home helper, the Father could provide a stable caring regime for Anu.  On the other hand, the Mother has to work during daytime, often overtime at night and weekends.  With little social support, she might have difficulties in providing a stable care arrangement for Anu.  

The ascertainable wishes and feelings of the child concerned

28.  Anu is too young to understand the family dynamics and to think of her welfare arrangements.  

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

29.  It is Ms. Wong’s observations that Anu has good bonding to both parents and maintains a good interaction with family members of both sides. 

Any harm which the child has suffered or is at risk of suffering; Any family violence involving the child or a member of the child’s family

30.  There is no allegation about any harm that Anu has suffered or are at risk of suffering or any family violence involving the child.  As to the Mother’s suggestion that the Father has used physical violence against her during marriage, Ms. Wong has made enquiry with S, who revealed that the parents had occasional quarrels in the past but she did not see the Father drunk or break things at home in recent years. 

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

31.  I take notice that Anu has expressed to Ms. Wong that she is happy to stay with either side of her parents.  Secondly, as we can see from Ms. Wong’s report on the caring arrangement of the child for the period from March 2018 to June 2019 (Social Welfare Report dated 11 June 2019), the period from June 2019 to January 2020 and the period from February 2020 to June 2020 (Social Welfare Report dated 28 July 2020), since the parties’ separation Anu has actually spent a lot of time in the Father’s home.  There is a considerable difference in what is said by the parties about how much time that Anu spent with them during the period from about June 2019 to May 2020.  The Father suggests that, even after the making of the interim order dated 24 October 2019 that provides for Anu to live with the Mother, she spends more time living with him than with the Mother.  The Mother disagrees.  After having heard the parties’ oral evidence and having carefully considered the Social Welfare Report dated 28 July 2020 and the records made by the Father and S (Exhibited ‘SP-2’), I prefer the Father’s evidence that Anu spent more time in his home than with the Mother during the period from about June 2019 to May 2020.  After having carefully considered all evidence, I consider that it is unlikely that there will be an adverse effect on Anu if care and control is given to the Father with reasonable access to the Mother.

Case Social Worker’s Recommendation

32.  In the Social Welfare Report dated 11 June 2019, Ms. Wong recommends: -

35. To balance between the views of different parties, the importance of sibling bonding, and the availability of child care resources from both parties, I would like to recommend for the consideration of Your Honour that:

i)  Both Petitioner and the Respondent be granted the joint custody of S and Anu;

ii)  The Respondent be granted the care and control of S and Anu; and

iii)  The Petitioner be granted the reasonable access of S and Anu.

33.  In the Social Welfare Report dated 28 July 2020, Ms. Wong recommends: -

32. To balance between the views of different parties, the availability of child care support and resources from both parties, the past and present of care and access arrangement for Anu, as well as for the benefit of the learning and development of Anu, I would like to recommend for the consideration of Your Honour that the Respondent be granted the care and control of Anu while the Petitioner be granted the reasonable access of Anu.

Conclusion

Care and Control

34.  Given the findings made above it seems to me it is appropriate in all the circumstances of this case for care and control of Anu to be vested in the Father.

Access

35.  I accept that the Mother should have access on the weekends and holidays.

Costs

36.  Given the nature of this dispute there shall be no order as to costs.

Disposal

37.  It is ordered that the Order dated 24 October 2019 be varied to the effect that: -

(1)  The care and control of Anu be given to the Father.

(2)  The Mother shall have access to both children from 5 pm on Friday until 10 am on Sunday subject to the Mother being available to care for or to make appropriate arrangements for both children.

(3)  School holidays and public holidays shall be shared equally between the parties.

(4)  During Diwali festivals, the parties shall have access to both children in two evenings after school on an annual rotation.

(5)  The Mother shall pick up and return the children.

(6)  In the event that the Mother is unable to care for or to arrange appropriate care for the children, especially during the school holidays, the children shall be in the care of the Father during those periods.

(7)  Each year on giving one-month notice in writing to the other party, a party may take both children within the school holidays for a holiday up to 14 days either within or outside the jurisdiction provided that the notice gives details of location and itinerary including accommodations.  Otherwise, no leave for the parties to remove the children from the jurisdiction. 

(8)  S. 18 declaration regarding both children.

(9)  There be no order as to costs save that the Father’s own costs be taxed in accordance with the Legal Aid Regulations.