JDYS v. EYCK ALSO KNOWN AS KEYC

HCMP 3584/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3584 OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO. 12871 OF 2009)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

I. Two applications

1.1   There are two applications before us.  The respondent father applies for leave to appeal against the decision of Deputy District Judge Grace Chan (now H H Judge Grace Chan) made on 9 March 2016.  The Judge refused leave.  The petitioner mother asked for leave to adduce new evidence in her opposition to the father’s application.

1.2   This Court directed that the two applications shall be dealt with on paper on the basis of the parties’ written submissions.

II.  Background

2.1   This is a case concerning a dispute over the daily care and control of three children following the divorce of their parents. 

2.2   The mother and the father are both medical practitioners.  The mother is a paediatric surgeon running her own private clinic.  The father is a general medical practitioner working in a private medical group.  They were married in 2003.  Three children were born to the couple: ‘N’ a boy born in 2004, ‘AN’ a girl born in 2007 and ‘AS’ a girl born in 2008.  The marriage broke down and the couple were separated in 2009.  On 20 April 2011, the marriage was dissolved by a divorce decree granted by the Family Court.

2.3   Having gone through a mediation conducted by a senior counsel specializing in family law, the parents eventually reached settlement on children matters.  By a consent order dated 1 February 2011, joint custody of the children was granted to both parents, with care and control to the mother and defined access to the father (the ‘1^st Consent Order’).

2.4   Shortly afterwards, about two months after the 1^st Consent Order was made, the father requested for increased weekday access and took out a summons for that purpose.  In response, the mother took out a summons seeking variation of joint custody to sole custody in her favour.  In the end, both summonses were withdrawn and on 15 November 2011, a consent order was drawn up providing, among other things, that the mother shall only be required to inform, discuss and get mutual consent with the father on major issues of the children, and the parents shall have alternate weekends with the children (the ‘2^nd Consent Order’).  After the 2^nd Consent Order there were further subsequent variations of the access arrangement.  The access arrangement of the father to the children during school term that had been put in place since January 2015 is as follows :

1) Each Mondays and Wednesdays access from after school to 8 pm;

2) Week 1: staying access from Friday 3 pm (after school) to Saturday 6 pm;

3) Week 2: staying access from Saturday 10 am to next Monday when the father will take the children to school;

4) The father had to take/collect the children to/from the extracurricular activities during his access time, and to drop off the children at the mother’s home at the end of each access.  

2.5   On 22 May 2014, the father took out a summons seeking, again, increased access to the children.  The mother disagreed.  Two children dispute resolution hearings were held in the Family Court to reconcile the difference but, no compromise was reached.  This then led to a 7-day trial before the Judge. 

2.6   The father’s initial position, as stated in his summons, was that he should have increased access to the children, that is, the children should stay with him either from Thursday (after school) until 6 pm on Saturday, or from 6 pm Saturday to Tuesday morning when he would bring the children back to school on an alternate basis; and he should have Wednesday dinner access from 6 to 8 pm.  This positon was later changed when the father asked that he should have the shared care and control of the children on a week on/week off basis, meaning that the children would stay with the father in week 1 and with the mother in week 2 and vice versa. 

2.7   A social welfare officer and a single joint expert in child psychology were appointed by the Judge to assist her in assessing the desirability of granting the father shared care and control of the children (respectively the ‘SWO’ and the ‘SJE’).  The SWO prepared two written reports while the SJE prepared one report setting out their observations and recommendations on the issue of shared care and control.  The reports were admitted in evidence at trial.

III.  The decision below

3.1   The issues before the Judge were whether the father should be granted the shared care and control of the children and if so, what should be the proper arrangement.  The SWO and the SJE were called to give evidence in court.  The father and the mother also gave evidence.

3.2   On 9 March 2016, the Judge gave judgment granting the father shared care and control of the children but refused the father’s proposal for a week on/week off arrangement.  In the view of the Judge, the week on/week off arrangement was not in the best interests of the children.  The Judge made an order setting out detailed directions on the practical arrangements for the daily care of the children.  The relevant parts of the order for the purpose of this application are :

1) The children shall stay with the father from Thursday after school until 8:30 pm of Saturday of the same week;

2) The children shall stay with the mother with the remaining time of the week;

3) The father shall be responsible for picking up the children at their school on Thursday and returning them to the mother’s residence on Saturday at 8:30 pm;

4) A fixed daily telephone / Facetime / Skype access to the children with the other parent not staying with the children between 7:30 pm and 8:30 pm for not more than 30 minutes in total. 

IV.  The father’s grounds of appeal

4.1   The father recognizes that he is challenging the exercise of a discretion by the Judge but he argues that the decision is plainly wrong in that :

1) The Judge erred by making a finding of fact, that is, that the access arrangement recommended and supported by the two court experts was ‘too radical and extensive a change for the young AS’ (now aged 7), when there had been no evidence to support that finding.  She nonetheless substituted her own ‘opinion’, which was contrary to the recommendation of the SWO and SJE.  The Judge reached this opinion merely because the child had lived with her mother since the parties separated, but there had been no evidence in support of that opinion.

2) The Judge erred by failing to meet the children in circumstances were she was making a finding as to the maturity of one of them, which was contrary to the assessment of the Court’s experts, when meeting that child would have afforded her the opportunity to make her own assessment rather than reach an opinion unsubstantiated by the evidence.

3) The Judge failed to give any consideration to the proposal made by the SJE, that with a week on /week off arrangement, the parent who does not have care of the children that week would have a mid week dinner with the other parent to maintain contact.

4) The Judge erred by making an order that reduced the children’s time with their father while making no assessment of the impact of this on the children, when they had clearly stated that they wished more time with their father and she recorded that she would give heavy weight to their views – she failed to take into account that the eldest son N (aged 13 in January 2017) was growing into a young man and would welcome a stronger presence of a male role model in his life which could be filled by his father.

5) The Judge erred in reaching a conclusion that reduces the father’s time with the children when this is inconsistent with her other finding.

6) The Judge did not give reasons for acting contrary to the recommendations of the experts.

7) The issue of shared care is a matter of importance which should be reviewed by the Court of Appeal.

V.  Our view

5.1   The one and only one ‘principle’ in decision concerning children is whether it is made in the best interest of the children.  We are not convinced that it is reasonably arguable that the decision below is not in the best interest of the children and the Judge’s discretion has been wrongly exercised which requires the interference by this Court.

5.2   The starting point is that the Judge had by her order changed the ‘care and control’ of the children from that of sole care and control by the mother to shared care and control of both of the parents.  As to the issue of the recommendation of week on /week off shared arrangement by the SWO and SJE, it is important to recognize that in none of their reports it is said that this particular arrangement is the only workable arrangement in the circumstances of the case.

5.3   It is equally important to recognize that the status of a recommendation by the experts should not be raised to the status of a decision which should only be interfered with on grounds similar to an appellate Court interfering with an exercise of discretion : Naziya Aslam v Ali (Custody and Removal) [2009] HKFLR 294 at paragraph 27, per Rogers VP).  Ultimately the decision on how the children should spend time with their parents lies with the Judge and her alone.

5.4   In our view the Judge had properly considered the recommendations, rejected them and gave reasons for her decision.  This is what she said :

‘ 95. There is no doubt in this case that the children maintain a very close and loving relationship with both parents. I am particularly impressed by the father’s close bonding with the children despite the relatively limited access time available to him under the 1^st and 2^nd Consent Orders. His access to the children has been gradually extended by me since the 2 CDRs. No adverse effect on the psychology of the children can be noted. They have fully embraced the fact that they have 2 homes with different styles in parenting of their parents.

96. There is also no doubt in my mind that the children truly and strongly wish to see their father more and not only during weekends, though it is noted that there is not a uniform view among the children as to the duration of each block of time they should spend with each parent.

97. The SWO recommends a week on/week off shared care arrangement. The SJE opines that the children are robust enough to cope with this arrangement. These are the opinion that this court needs to consider, but is not bound to follow. I take the view that if a one-week-on/one-week-offpattern is installed at this stage, that means that the children will spend a week at a time away from the other parent, which especially for small child (ie AS) can be a long time. This suggestion has also overlooked the fact that the mother has been AS’s main carer since the separation, at which time AS was only less than 1 year old. In my opinion, a week on/week off arrangement is too radical and extensive a change for the young AS.

98. Besides, the week on/week off arrangement fails to address to the father’s own alleged concern of the need to assist the children in their study, in that he would not be seeing and helping them in their homework during the whole week of the mother’s week.

99. Upon considering all the circumstances of the case and upon balancing all factors, I come to the conclusion that in the best interest of the children, they should be staying with their father from each Thursday to Saturday during school term, with the rest of the week with their mother. Such an arrangement would allow the children to see each parent for a block of time within a week during which they would be subjecting to one parenting style only. This arrangement would also minimise the number of hang-over and significantly cut down the travelling to and fro under the current access arrangement. The parents can also spend time with the children during both the weekdays and the weekends/Sundays, albeit not a full weekend.’  (emphasis added)

5.5   We do not see how by making this arrangement, the Judge can be criticised for not having regard to the best interest of the children and that there was no evidence to support her opinion.  In the first place there is no evidence that the then access arrangement is unsatisfactory to the three children.  In fact, all three children expressed their satisfaction with the then access arrangement. It must not be forgotten that any change in the then access arrangement will involve all three children and not just one or two of them.  The Judge’s view that the change will be too radical and extensive a change for the youngest child AS cannot be plainly wrong.  She was after all six years old at the time of the hearing and had been taken care of mainly by the mother since her birth.  As one would expect, in view of her age AS did not express any strong view on the access arrangement.  The SWO’s report of 22 October 2015 recorded :

‘ 22. 6-year-old [AS] told that she equally loved her parents and was happy to live with each of them. She preferred both of them to stay with her if she was sick and was also accompanied by either parent to go to the theme park. She felt satisfactory about the present access arrangement. She forgot the past access schedule and neither understood the week on / week off pattern. [AS] shared that she wanted to see her father in a half day while her mother for another half day, or she could meet one parent during the weekdays and the other parent during the weekends.’

5.6   The argument that the Judge should separately seek the view of AS is not grounded by the reality of the situation.

5.7   Likewise while the eldest son N who was then 11 was of the view ‘that the week on / week off pattern should be the easiest and fair way to share the living with each parent’, the middle child AN, who was then eight, said that ‘the changeover of the week on / week off pattern was too frequent’.  AN’s idea was in fact to split the mouth equally into two halves so that she could spend her time equally with the parents.  One may ask, is the Judge expected in the circumstances to augment the shared arrangement by the father having the children for a whole period of two weeks in accordance with the wish of AN?

5.8   It is then said that the Judge had forgotten that under the proposed recommendation the parent who does not have care of the children that weekwould have a mid week dinner with the other parent to maintain contact.  Again, this ignores what the Judge said about the desirability of the children being subjected to one parenting style at one time.  To impose a meeting by another parent during the week would more likely cause more problem because of the different parenting style of the parents which shows that the father is more disciplined and the mother is more laid back in her approach.

5.9   It is then said that the new arrangement ordered by the Judge in fact gave the father less time with the children and in effect reduced the father to a ‘weekend father’.  As the Judge observed, there is no perfect arrangement.  But it must not be forgotten that the children’s bed time is 8.30 pm, so the time the father could spend with the children under the former access arrangement on each Monday and Wednesday after school was a relatively short period of time indeed.

5.10   It may well be the concept of shared care will need to be examined again after the last decision of this Court in 2002 in H v H (CACV 42/2002), but we do not consider that this is the right case to address this issue.  To do so will subject the parents and children to a further period of uncertainty and anxiety which could not be in the best interest of the children.

5.11   Accordingly we will not grant leave. 

5.12   We would add that it is clear that both parents are loving and caring parents and as the children are growing older, particular in respect of N, it is natural that the father would like to spend more time with them.  But with children, unless the situation is so exceptional, the better approach is not to immediately resort to litigation just because one parent seems not to be achieving what he or she hopes to achieve.  Ultimately the best interest of the children does not depend on the subjective view of one parent but on the overall circumstances of the case. 

VI.  New evidence

6.1   The mother has sought to rely on the progress report made after the Judge’s order, which in essence shows that the new arrangement is working well to the best interests of the children. 

6.2   The stricture relating to admission of new evidence on appeal must subject to the overriding principle that in children cases the aim is to achieve a result that is to the best interest of the children.  Hence if the new evidence has a direct and material bearing on this issue, the Court will not simply refuse to admit the new evidence solely on the ground that the evidence is only produced on appeal.  In the present case as we are able to reach a decision on the materials considered by the Judge at the time of the trial, it is not necessary to rely on the new evidence.  We will make no order on the application.

VII.  Costs

7   We will make no order as to costs in view of the nature of the application.