ZZ v. LX

FCMP 167 /2018

[2023] HKFC 62

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 167 OF 2018

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J U D G M E N T
( Custody and access )

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Introduction

1.  This is the trial concerning the custody and access of a 5 years old boy, (“Son”), born in September 2017 out of wedlock. Due to the 5^th Wave of Covid 19, the trial was adjourned from 16 March 2022 to 3 November 2022.

2.  The Applicant aged 41 (“F”) and the Respondent aged 41 (“M”) are the respective natural father and mother of the Son, who is currently attending reception class at an International School in Hong Kong.

Issues Before Court

3.  As the parties have agreed that care and control be to M, the remaining issues are to be resolved as follows:

(1) Should sole custody be vested with M or joint custody be granted to both parents?

(2) Whether there should be defined access for F and if so, what should it be?

(3) Should F or M be allowed to take the Son outside jurisdictions for holidays?

Background

4.  Both parents were born and brought up in PRC and they graduated from PRC universities. Other than spending a short while in the UK studying for a Master degree, M was living in PRC and then in Hong Kong. 

5.  By a former relationship (not her previous marriage), M has another son who is now 8 years old (“Elder Son”) and attends Year 3 at the same International School with the Son. 

6.  M was an executive director of a listed company before she moved on to start her own worldwide investment business in 2015.  She is tremendously wealthy.  Just her alleged monthly expenditure on the Son alone was $150,000 and her spending on rent and salaries of servants came up to $250,000 back in March 2021.  The Son lives with M and the Elder Son in a luxurious flat of 280 sq. m.  They are served by 3 domestic helpers and 2 chauffeurs. 

7.  F is divorced with no children.  He specialises in crypto assets and its global development.  He worked in Hong Kong on and off from 2008 and started working in Hong Kong officially on 1 June 2018 under the Admission Scheme for Mainland Talents and Professionals.  In the past 4 years, he has been working for a company.  His present job title is Investment Director with monthly salary of $59,400.  His visa under the said scheme needs renewal every two years.  The next renewal will be in 2023.  He said that he will become a permanent resident of Hong Kong in June 2025. 

8.  Both F and M are very well educated, holding Master degrees in their respective fields.  F holds Master degree in Global Business Management (2011); Business Administration (2013) and is now studying (part-time) for a Master degree in Corporate Governance. 

9.  Parties met in 2008 and close friendship flourished thereafter for over 7 years before F became the Godfather of the Elder Son.  On 25 November 2015, he gave a speech as his Godfather in the celebratory banquet at Elder Son’s first birthday before many of M’s family and close friends. 

10.  F has been living alone in a 3-bedroom apartment in West Kowloon for 4 years free of charge, which is owned by his close friend in PRC.  He said that it is his plan to buy a property in Hong Kong when he became a permanent resident in 2025. 

11.  Parties started intimate relationship in the end 2015 and co-habitation started in early 2016 at the M’s place in Ho Man Tin.  The cohabitation ended a month after the Son’s birth, i.e. Oct 2017, when M asked F to leave on the pretext that she wished to redecorate the flat.

12.  F considers that the great disparity of parties’ respective wealth was the cause of the breakup while M believes F’s failure to consent to the Son’s migration visa application to Australia is the main cause of it. 

13.  F was a very traditional Chinese man who asked M to marry him after M was found pregnant in January 2017.  M declined his marriage proposal in March 2017.  

14.  According to M, when she was 4 months pregnant, she already decided to end the relationship with F.  She admitted she only first told F of such a decision in about middle January 2018.

15.  M was staying in Ho Man Tin. Each level of the building has only two flats with respective entrance gates facing each other.  M was living with F in one flat and the Elder Son and helpers in another when F was asked to stay in the flat opposite to allow M a better rest at night.

16.  F was working in Beijing during M’s pregnancy, he came back to attend almost all prenatal cares and check-ups with M.  F also stayed with M from August to October 2017, except one day when he had to return to Beijing to get his Hong Kong visa.  F continued to stay at the flat opposite until one month after the birth of the Son, he was asked to leave by M.

17.  In December 2017, M asked F to sign a consent to give permission for the Son to be granted an Australian Visa under the Business Innovation and Investment (Provisional) scheme for the purpose of migration to Australia.  M admitted that she gave reassurance to F that she would not relocate the Son to Australia and the consent to migrate was only a routine procedural matter.  Upon such representations, F gave consent at M’s solicitor’s office and he also signed on the visa application form twice, due to some unrelated error on the first form.  The last application form was signed on by F on 11 January 2018. 

18.  After F signed this last visa application form, M told him of the ending of their relationship through WeChat. 

19.  On 4 March 2018, F said that he received a phone call from Australian Consulate office asking him, inter alia, why he was not making application to migrate and what is the relationship between the parents of the Son.  He was told that it was not a routine procedural matter to consent.  He started to worry that M would take the Son away for good and also that the migration would affect his legal status as a father to the Son.  He suspended his consent immediately and in April 2018 he confirmed his withdrawal of consent after seeking legal advice. 

20.  Soon after he withheld the said consent, in March 2018, F suddenly discovered he could no longer access the WeChat of M’s friends where the Son’s photos or information were posted. M also blocked F from her WeChat ‘status’.  M stopped friends and relatives from divulging any news of the Son to F. 

21.  From about March to April 2018, M unilaterally decided that absolutely all communications must be through her solicitors.  Parties communicated by WeChat until 11 November 2018 and subsequently when F tried to contact M in May 2019 through WeChat, he found it was blocked by M already.  M insisted all communication must be throughout solicitors in the last 4 years.

22.  In August 2018, F commenced these proceedings for, inter alia, joint custody and access including staying access.

23.  In July, 2021, M’s and the Elder Son’s Australian immigration visa were granted.

24.  F said that M did not inform him that M and the Son have moved house.  For sometimes F had no idea where the Son was.  M did not inform or discuss with F about the choice of kindergarten and school and all the extra-curriculum activities.

25.  M also changed the surname of the Son from F’s surname to “Li” without informing F. The surname of the Elder Son is also “Li”.

26.  M said that the Son has no mobile phone and/or electronic devices while F said since November 2021, the Son already has a mobile phone of his own which he could use.  F complained that his many requests to see the Son by Zoom were denied by M.

27.  F said that despite his many repeated requests for attending school activities, receiving school reports, notices, activity information of the Son, M never replied.

The Law

28.  The general principles governing applications relating to children are set out in section 3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

“3. (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—

(a) In any proceedings before any court (whether or not a court a defined in section 2) the court—

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to—

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from 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) except where paragraph (c) applies, 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;

(c) where the minor is illegitimate—

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d) the Court of First Instance or a judge of the District Court may, an application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

29.  In the leading authority of PD v KWW (Child: Joint Custody) [2010] HKFLR 184, Hartmann JA (as he then was) explains the terminology of custody in detail:

“31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.

…

38. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter.”

30.  In relation to sole custody, Hartmann JA continued to say:

“40. In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason, it is often said that there is a thin line between sole custody and joint custody.

…..

Joint custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of the children.

…

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each other concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration. As this court has recognised (see, for example Y v P [2009] FLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but leave the child more vulnerable.”

(emphasis added)

31.  Lam J (as he then was) also pointed out the practical difference of sole or joint custody at §78 of the judgment:

78. I agree with the judgment of Hartmann JA. Though the line between sole custody and joint custody is a thin one, it is still one with potential practical significance. A parent with sole custody can determine the place of residence of the child. The other parent, whilst he or she might have a right to be consulted, does not have the power of veto. This could have immense significance in terms of removing a child from the jurisdiction.” (emphasis added)

32.  Ms Anita Yip SC leading Mr Perlman Sam for M also cited ML v YJ [2008] HKFLR 88, decided by Recorder Rimsky Yuen SC who granted sole custody to the mother on facts involving: 1) the mother residing with the children in HK while the father in Mainland; and 2) a lack of trust and cooperation on both sides with all communication being through lawyers.  Ms Yip and Mr Sam also relied on the Court of Appeal case Y v P (Custody) [2009] HKFLR 308, which endorsed the reasoning in ML v YJ (supra) and granted sole custody to the appellant wife.

33.  With due respect, I am of the view that ML v YJ which was decided in 2008 and the Court of Appeal case Y v P decided in 2009 have very little significance after the subsequent Court of Appeal case PD v KWW decided in 2010.

34.  It is trite that the Social Investigation Officer is the eyes and ears of the Court but the recommendations are not binding on the Court. In H v N [2012] 6 HKC 591, J Poon J (as he then was) said:

“36. In WSM v FSY [2005] 3 HKC 319, (CACV 352/2004, 27 July 2005), Cheung JA dealt with the approach to a social welfare report in the context of a s 3(1) inquiry thus :

“22. As we understand the position, the social welfare report, is, like all other material information, one of matters that the court should pay due regard in determining what is in the best interest of the child. No doubt because the social workers have carried out the background investigation, they are able to provide details of the family situation which are not otherwise available to the court. And to that extent the courts have said in the past that if the recommendation of the welfare officers are not followed then it is highly desirable that the judge should say why he has not done so : see W v W (A minor : custody appeal) [1988] 2 FLR 505.

23. This is a matter of commonsense but as more recent cases show, the judge’s reasons for reaching his own decision instead of relying on the recommendation are normally the very reasons for his declining to follow the recommendation. Unless his reasons are manifestly wrong he is not under any further duty to spell out the reasons for departing from the recommendation: see Re V (residence : review) [1996] 3 FCL 101 and Naziya Aslam v Rafagat Ali (CACV 144/2003). This is an approach we will also adopt. Otherwise the matter will be enmeshed in technicalities.

24. We will further add that a social welfare report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted. Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles. See also Z and Y [2001] 1 HKLRD 261.”

SIR Reports

35.  The following reports are prepared by the social work officer, Ms Tsang (“SWO”) and placed before this Court:

(i)    Social Investigation Report dated 17 June 2021 (“1^st SIR[1]”);

(ii)   Updated Social Investigation Report dated 21 February 2022 (“2^nd SIR[2]”).

(Collectively as “the Two Reports”)

36.  According to the 1^st Report, the Son was commented by the school to be a confident, talkative, smart and inquisitive child who had made brilliant progress in the term.  He was sociable and loved to interact and played with his classmates.  SWO observed that the atmosphere was harmonious while the interaction between F and the Son was close with lots of physical interaction and eye contacts. The father-son relationship was described to be intimate and harmonious.  The Son had been properly cared by M while F was a coach and playmate for the Son, who could be benefit from both parents’ love and care throughout his upbringing.  SWO thus recommended joint custody.

37.  According to the 2^nd Report, SWO observed that F and the Son had spontaneous communication with harmonious interaction.  When the Son had problem, he approached F for assistance.  F coached the Son with patience, took care of the Son’s needs and tried his best to fulfil the request of the Son.  Throughout the process, they laughed out from time to time and F appraised the Son whenever the latter accomplished a task.  The Son once told SWO that he liked to play with F and he normally went to F’s apartment on Saturday.  When the Son was interviewed in his bedroom at M’s apartment privately, he told SWO that “mommy said father is annoying”.  When the Son was asked if he wanted to go to F’s abode more often, he replied “No” and without further elaboration.  SWO commented that the Son could be benefit from both parents’ love and care throughout his upbringing, even if the parents had to communicate via their solicitors on the issue of the Son’s important issue.  Besides, the attitude of the parents towards one another also greatly affect the impression of a child towards the non-residing parent.  For a healthy development of a child, the involvement of the parents on the child’s issue is of vital importance.  SWO once again recommended joint custody.

38.  Although the Two Reports recommended a joint custody order, M challenges the bases of the Two Reports or the lack thereof.

39.  Concerning access, the only major distinction between the 1^st SIR and the 2^nd SIR recommendations is that in the 1^st SIR, a mono-monthly 4-hour day access to F was recommended whereas in the 2^nd SIR, a bi-monthly 3-hour day access on the weekend was suggested.

40.  M also disagrees with the latest proposal of bi-monthly access by SWO.

41.  SWO attended the trial for examination by the parties. Save as to the recommendations of joint custody and bi-monthly access, SWO’s evidence is largely accepted by M[3].

Joint or Sole Custody

42.  F asks for joint custody whilst M seeks sole custody mainly on the following grounds:

(i)    Due to a complete lack of communication and mutual mistrust, there has not been and will not be any reasonable prospect for the parties to co-operate in serving the best interest of the Son.

(ii)   Status quo should be maintained:

i.     M has been the de facto sole custodian and M’s “proper care” is acknowledged by all parties.

ii.    M is effectively making all major decisions relating to the well-being of the Son. 

iii.   F is more than happy with the Son’s welfare and is indeed grateful to M’s good work and whole-hearted devotion to taking care of the Son.

iv.   Joint custody with F may hamper the Son’s growth together with the Elder Son thus directly bringing about adverse impact on the Son’s welfare and indirectly having the same adversity on the Elder Son’s well-being.

(iii)   F fails to demonstrate his commitment to the Son since birth and his lack of participation in the Son’s life render him unsuitable to be a custodian parent.

Lack of Communication and Mutual Mistrust

43.  M said that there is no communication at all between her and F on any matter, including matter related to the Son.  All communication has been and only through solicitors since March 2018.  Even the number and frequency of communications between M’s and F’s lawyers are sparse, the scope of most communication is mainly centred around the Son’s access arrangement.

44.  On the contrary, F said that it was M who decided everything must go through solicitors.  It is her unilateral decision that she would not speak to F directly.  Since March 2018, F had tried many times to discuss with M on parental care plan but M refused.  In August 2019, F personally wrote a letter which was annexed to his solicitors’ letter[4]. M declined to communicate and wrote back “As to your client’s Chinese letter, our client just finds it rather inappropriate that she should write back and make the reply direct by-passing the legal representatives.[5]”

45.  I accept F’s evidence and submission.  Further, it is not disputed that F also tried to get M’s friends to talk to her.  Nonetheless, M’s solicitors replied in the letter dated 23 June 2020[6] as follows:

“We are instructed that your client have been sending messages to our client via our client’s friends and family members trying to persuade our client to settle the dispute with him in relation to the above action without going through the legal representatives. We found such conduct of your client inappropriate.

…

Our client is of the view that such behaviour of your client is very annoying and disturbing…

We are instructed, which we hereby do, to write to you again and ask your client to stop any communications with our client, be that direct or through some 3^rd parties,in order to avoid any misunderstanding unnecessarily and any unwarranted interference in her life.” (emphasis added)

46.  Even F might have been sending messages to M via her friends and family members trying to persuade her to settle the dispute without going through the legal representatives, it is wholly understandable since the legal costs in the family proceedings are well known expensive.  I do not think such conduct of F inappropriate as long as it does not amount to any harassment to M, her friends and family members.  I can see no harm to the Son if the parties’ common friends and family members are willing to help. 

47.  Indeed, M never denied that soon after F withheld the consent to give permission for the Son to be granted an Australian Visa for the purpose of migration to Australia, M blocked F from her WeChat ‘status’ and in March 2018, F could no longer access the WeChat of M’s friends where the Son’s photos or information were posted. 

48.  Ms Yip for M submitted that F’s tactic to leverage on his consent rendered any major long-term or short-term planning for the Son impossible, which indirectly affects the Elder Son’s wellbeing.

49.  F tried to explain his reasons for his withdrawal of the said consent.  For the purpose of determining the issue of joint custody, I do not think that I need to comment or decide as to whether F’s withdrawal is reasonable or not.  In my view, F’s withdrawal of consent by itself is not sufficient to show the mutual mistrust as alleged by M.  I am also not persuaded by M that F is not willing and ready to communicate and co-operate with M in respect of the Son’s welfare.

50.  Besides, I do not see any good reason as to why the parties have to engage lawyers for communication in respect of the welfare of the Son.  Communications via lawyers are always not only expensive but also time consuming as lawyers have to take instructions from their own clients and then give legal advice.  The parties are well educated and they are capable and sensible enough to communicate between themselves by way of, say email, WeChat or other means restricting to the matters or welfare of the Son, but nothing else.  Besides, there is no evidence to show that F has ever sent any messages, content of which is to harass or disturb M.  I find that M is unreasonable to insist to communicate with F via lawyers.

51.  Relying on the observations by SWO in the Two Reports, I have no doubt to find that the parties are competent and loving parents who are presumed to be able to make rational decisions in the interests of the Son and will be able to co-operate with each other concerning matters of importance in the upbringing of the Son. 

52.  I therefore reject M’s allegation of lack of communication and mutual mistrust.  I also disagree that there will not be any reasonable prospect for the parties to co-operate.

Status quo

53.  Ms Yip for M submitted that M has always been the de facto sole custodian of the Son, even before his birth and that the Court should strive to maintain the status quo as opposed to introducing uncertainty and instability that a joint custody regime will inevitably bring about.

54.  I have no doubt to accept that M has made all decisions relating to the Son’s up-bringing, from major matters such education, schooling, immigration, ECAs, medical, housing, religion (or no religion), travelling, to relatively minor matters such as helpers, carers, daily commuting, food, friends, playmates and the like.  F himself acknowledges M has done a great job.  That is the reason why F has never asked for care and control of the Son but just joint custody with defined access.

55.  With due respect, I do not agree with Ms Yip’s submission.  If the court has to determine the issue of care and control or even access, I will certainly accept Ms Yip’s submission of maintaining the status quo in favour of M.  But that is not the issue here.  As said in PD v KWW, there is a thin line between sole custody and joint custody.

F’s refusal to commit, disinterest and lack of experience

56.  M further complained that:

(i)    F does not concern himself with the Son’s major affairs.  He is complacent to let M decide and handle all of the Son’s affairs;

(ii)   F seems to be genuinely disinterested in the more mundane, day-to-day matters of the Son; and

(iii)  F has displayed himself to be lacking the parental experience, maturity, and capability to make custodian decisions.

57.  I really cannot agree with M’s complaint.  In the letter of F’s solicitors dated 24 April 2018[7], F had already proposed to discuss and make joint decisions on major decisions concerning the Son such as his education etc including daily activities etc. However, M never replied.   

58.  Ms Yip for M submitted that F through his solicitors the said letter used his consent for the Son’s application for Australian visa as a bargaining chip in exchange for, inter alia, joint custody.  In my view, the issue as to whether the court will grant leave to the Son’s relocation to Australia is entirely different from the issue of making a sole or joint custody order.  In other words, it is always possible that the court to grant leave for the Son’s relocation even though the joint custody is given to the parties.

59.  F was being criticised by M for not asking for access in 2019 for 5 months suggesting he was not a concerned father. However, F answered that he did make 12 consecutive requests via WeChat to see the Son but M did not reply. 

60.  In the letter of F’s solicitors dated 26 November 2020[8], F requested the Son’s information on daily and school activities on regular basis and regular weekly updated photo and video.  There are some lawyers’ correspondence concerning the Son’s affairs, which I do not think necessary to reproduce here.

61.  In short, I reject M’s allegation against F for his refusal to commit, disinterest and lack of experience.

Decision for the issue of custody

62.  Apart from the above, I am fully aware of many other disputes between the parties, such as M’s complaint of spicy soup incident, F’s complaint of change of the Son’s surname, two fathers of the Son, haircutting incident, M’s alienation etc.  I do not think that I need to discuss and analyse each and every disputes raised by the parties.  As said in PD v KWW, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. 

63.  No doubt, the dispute concerning the Son’s Australian visa is one of the main reasons for breakdown of the parties’ relationship.  As said by Sir George Baker P in S v O[1982] 3 FLR 15 at page 16:

“It is not unusual for illegitimate mothers, when they have had a row, or rows, with the father and the association had broken up, to try to keep the other out of the child’s life.”

64.  In case M plans to remove the Son outside jurisdiction no matter for the purpose of study in or migration to Australia or other country, separate application will have to be taken out and if F opposes, the court will then have to consider her application under different legal principles.  In my view, the fact that F is likely to oppose is insufficient by itself to establish M’s allegation of mutual mistrusts.

65.  I also cannot agree with M’s submission that joint custody with F may hamper the Son’s growth together with the Elder Son.  It is accepted by M[9] that F loves the Son.  F who is the Godfather of the Elder Son also has very good relationship with him in the past.  As found by SWO in the Two Reports, F and the Son have harmonious and close relationship.  F has high education background.  I believe that he is able to discuss all the important decisions relating to the Son with M sensibly and reasonably.  Having carefully considered all the circumstances, I come to the conclusion that in the best interests of the Son, joint custody be granted to the parties.

Access

66.  In the past, no regular pattern of access was agreed and the parties had to make arrangements for access each and every time through their lawyers.  In my view, that is undesirable.  I am also surprised as to why no interim access application has been made by F for the last few years.  F’s explanation that he was always in great fear to upset M is unacceptable.

67.  As said above, a bi-monthly 3-hour day access on the weekend was suggested in the 2^nd SIR which was prepared in February 2022.  The trial was originally fixed in March 2022 but adjourned to November 2022 due to Covid.  As at the date of the trial, SWO has not seen the Son and the parties for 10 months. 

68.  Ms Chan for F submitted that SWO’s opinion on access cannot be reliable as development of a child of the Son’s age is very fast.  Relying on the “Equality Principle”, F proposes very substantial access in his Amended Open Proposal, inter alia, as follows:

a.  Wednesday day access;

b.  weekly Saturday to Sunday overnight access;

c.  staying access for half of the long school holidays, such as Chinese New Year etc;

d.  day access in some festivals or public holidays;

e.  special day access for the Son’s birthday in even years, Father’s Day and F’s birthday etc.

69.  I note that the recommendations for access increased from once to twice a month between the Two Reports which was 7 months apart.  I also understand that not many arrangements for access were successfully made after the 2^nd SIR and before the trial, which may be due to various reasons such as the 5^th Wave of Covid, typhoon etc. 

70.  I further note that the Son has a very tight extra-curricular activities schedule.  In the meantime, I would accept that a bi-monthly 3-hour day access on the weekend as suggested in the 2^nd SIR is an appropriate arrangement.  Since the Son has never stayed overnight in F’s house and there is no evidence, especially from the Two Reports that the Son is ready for staying access with F.  I also accept the recommendation by SWO in the 2^nd SIR:

“…While (the Son) was still under a tender age and he was closely attached to his mother, a stable living environment with familiarised bedtime arrangement was important for (the Son) to maintain his sense of security and essential for his development at this stage. Thus, staying access and temporary leave from Hong Kong with the father were still not recommended…”

71.  In the circumstances, I would not allow staying access nor grant leave to bring the Son for holiday out of jurisdiction as requested by F.  I also disagree the equal sharing of the long school holidays in the meanwhile.  I do not accept Ms Chan’s submission based on the “Equality Principle” for the child’s access arrangement, which is different from the issue of custody.  For F’s access, I am of the view that maintaining the Son’s status quo is a very important consideration for the court.

72.  Ms Chan for F further contended that the F’s access should not be ‘supervised’ by M’s maid whose presence is not needed.  I do think that her presence is helpful as the Son is only 5 years old.  I do not consider that allowing the presence of M’s maid means the F’s access is ‘supervised’ in any legal sense.  However, I do accept that M’s maid should not be allowed to obstruct F’s access including but not limited to taking any voice or video recording during the access.

73.  Since F and the Son has very close relationship, I consider that in order to maintain and further develop the father and son bonding, it is necessary to increase the quantity of access gradually.  I tend to think that in the future, there is no good reason for disallowing staying access on regular basis, such as monthly or during the long school holidays.  If the Son has to attend any extra-curricular activities during his access, I believe that F shall undertake to bring the Son to attend.  In this regard, I need further investigation and assistance from the SWO.  Thus, an order for supervision and the progress report regarding increase of the defined access are necessary.

74.  Concerning F’s request for attending the school events, I consider that it is not an appropriate moment for F to do so as the Son may not be prepared to see F in the school but SWO may collect the Son’s view and give her recommendation in the progress report.

75.  Regarding leave to M to bring the Son for holiday out of jurisdiction, I can see no reason to refuse such request provided that M shall give F the details of the trip including the time, place, flight number (if applicable), accommodation and contact phone number at least 14 days before commencement of the trip.      

Conclusion

76.  Having carefully considered all the circumstances and in the best interest of the Son, I make an order as follows:

1. Joint custody be granted to the parties.

2. Care and control to M with defined access to F as follows:

i. day access from 12 noon to 3 pm on the second and fourth Sunday of each month commencing from 9 April 2023 or such time as mutually agreed by the parties;

ii.  video access for not more than 10 minutes between the time 8:00 pm to 8:30 pm on every Wednesday by WeChat or other means as agreed by the parties;

iii. additional day access on the following special occasions:

a.  Father’s Day from 12 noon to 4 pm or such time as mutually agreed by the parties;

b.  F’s birthday from 6 pm to 8:30 pm if it is a school day and from 12 noon to 4 pm if it is not a school day, or such time as mutually agreed by the parties;

c.  1-hour day access on the Son’s birthday if it is a school day and 4-hour day access if it is not a school day, with time to be mutually agreed by the parties;

d.  4-hour day access per week during the long school holidays namely, Easter, Summer vacation etc, with time and date to be mutually agreed by the parties.

3. The Son be picked up and returned at the Ground Floor, lobby of F’s residence.

4. The presence of M’s maid during F’s access is allowed provided that she shall not obstruct the access.

5. M shall provide F with copy of the Son’s school reports twice a year within 14 days upon her receipt of the same from the school.

6. Supervision order for a period of 9 months be granted and the progress report regarding increase of the defined access only be filed 1 month before the expiry of the supervision order.

7. Without prejudice to the recommendation in the progress report, F’s application to bring the Son for holiday out of jurisdiction be refused.

8. In case the parties disagree with the recommendations or reach an agreement for the increase of the defined access, they are directed to lodge and exchange their respective submissions (not more than 4 pages, font size 14 with double line spacing) concerning the defined access only 14 days upon receipt of the progress report.

9. Leave be granted to M to bring the Son for holiday out of jurisdiction provided that M shall give F the details of the trip including the time, place, flight number (if applicable), accommodation and contact phone number at least 14 days before commencement of the trip.

77.  As usual, I make no order as to costs including all costs reserved, if any.