KWFCJ v. SICL

FCMC 4500/2012

[2020] HKFC 127

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 4500 OF 2012

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J U D G M E N T

(VARIATION OF CARE ARRANGEMENT)

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Preliminaries

1.  By consent, the custody matter of the child of the family (“Son”) was agreed by the Petitioner (“Father”) and the Respondent (“Mother”) on 13 November 2012 (“2012 Order”).  The parties were granted joint custody, care and control of the Son.

2.  By the order dated 25 September 2015 (“2015 Order”), it was ordered, inter alia, that the care arrangements of the Son be varied to as follows :-

(a)  On rotation at Week A, the Son is under the care of the Father from Wednesday after school to Saturday at 4pm.

(b)  At Week B, the Son is under the care of the Father from Wednesday after school to Sunday at 2:30pm.

3.  The Father applied by way of summons (“Summons”) for, inter alia, variation of the 2015 Order in relation to the care arrangement of the Son, who was 10 years old at the commencement of this trial and shall be promoting to Primary 6 in a primary school which is academically demanding.  In the Summons, the Father asked that the Son be in the care of the Mother with details as follows :-

“For Week A:

(i) Tuesday and Thursday for dinner from 7pm to 9pm.

(ii) Sunday from 2:30 pm to Monday 8am.

For Week B:

(i) Tuesday and Thursday for dinner from 7pm to 9pm.

(ii) Saturday 4pm to Monday 8am”

4.  The Father also applied for other relief in the Summons, which had subsequently been dealt with.  The only outstanding matter for the determination of the Court in this trial is in relation to the application for variation of the care arrangement of the Son. 

5.  The Mother could not agree to the Father’s application.  A Children’s Dispute Resolution had been conducted.  No agreement could be reached, and the case had been adjourned for trial.  Even a few days before the trial, the parties had attempted mediation, but no agreement could be reached. 

Background

6.  The Father and the Mother were married in November 2005.  In 2008, the Son was born.  The Father petitioned for divorce on 30 March 2012. 

7.  The parties had reached agreement during a mediation conducted in September 2012.  Subsequently, by consent, it was ordered in the 2012 Order that joint custody, care and control of the Son be granted to the parties. 

8.  By another order by consent, the parties had entered into a full and final settlement of all ancillary matters, with the terms embodied in the order dated 6 March 2013. 

9.  Decree Absolute was granted on 7 May 2013.

10.  In March 2015, the Father re-married.  His present wife (“Step-Mother”) is a home-maker.

11.  By the 2015 Order, the care arrangement of the Son was varied, with details referred to in paragraph 2 above.  In addition, it was also ordered that :-

(a)  The Father has additional staying access on the Father’s Day;

(b)  The Father and the Mother have reasonable telephone or video access when the Son is not under his or her care; and

(c)  The Father and the Mother shall share the long school holidays of the Son with prior mutual agreement.

12.  In February 2017, the Son’s younger brother was born (“Step-Brother”).

13.  Before and after the Summons was taken out, there were various summonses taken out by the parties, including the applications for temporary removal for holidays and applying for passport for the Son.

14.  On 30 October 2017, amongst other directions given in relation to the arrangement for temporary removal for holidays, it was ordered in paragraph 3 therein that “For the avoidance of doubt, [Son] shall have the right to initiate any telephone or video calls to the other parent as he wishes”.     

15.  On 10 January 2018, the Summons was taken out by the Father, asking for varying the care arrangement of the Son.

16.  Subsequent to the taking out of the Summons, it was ordered on 21 August 2018 that the case be adjourned for a Children’s Dispute Resolution hearing.  The Court also ordered that the 2015 Order be varied to the extent that the Son be under the care of the Father on Tuesdays from after school to 6:30pm when the maid will return him to the Mother’s residence.  The parties have also agreed on 2 undertakings which were embodied in the order, as follows :-

“AND UPON the Petitioner and the Respondent undertaking to the Court and to each other that they shall treat each other with mutual respect and not to, directly or indirectly, denigrate or to make negative statements either orally or in writing about the other, their respective families and/or friends directly to each other or to the child of the family, namely [Son], a boy, born on [date], or in the presence of [Son]

     AND UPON the Petitioner and the Respondent undertaking to the Court and to each other that, in the event [Son] would like to communicate with one party when he is in the care of the other, each of them shall facilitate [Son] to communicate with the other party during his/her non-access time through Facetime or Skype or any other video/audio link using the mobile phone to be provided by the Petitioner and shall not intervene, interrupt or in any way discourage such communication between [Son] and the non-access parent”  

17.  By the same Order of 21 August 2018, the Court also ordered, by consent, that (a) a parent co-ordinator be appointed to assist the parties with matters relating to the Son; and (b) the Son do have therapeutic counselling with a child psychologist.

18.  As a result, a parent co-ordinator was appointed. 

19.  On 19 October 2018, it was ordered by consent that a clinical psychologist referred by the Social Work Officer be appointed to provide therapeutic counselling for the Son.  The Son has had monthly sessions with a government clinical psychologist since 17 January 2019, who would only focus on giving therapeutic counselling to the Son and will not deal with any care and control or parenting issues or  provide any report.

The Father’s case

20.  The Father has filed 2 affidavits for this application, namely the 8^th Affidavit and the 10^th Affidavit.

21.  It is the Father’s case that the relationship between the parties has always been strained, which has become more so since the Father remarried in 2015 and the Step-Brother was born in 2017.  The Father is of the view that the Son is caught in the middle of the conflict and exposed to the Mother’s negative feelings towards the Father and his new family.

22.  The Father explains that the Son has just finished Primary 5 at a prestigious primary school which is very demanding academically.  He has to complete a great deal of homework after school and requires assistance to do so.

23.  The Father is of the view that when the Son is in the Father’s home, the Son has much back up and assistance in doing his homework after school from the Step-Mother and also the paternal grandmother, who is a retired teacher and is available whenever she is needed.  The Father clarified that while it is no criticism of the Mother as she has to work, the Son does not have such back up or assistance in her home and the Son clearly struggles with that. 

24.  The Father further explains that schooling is one recurring issue but the parents’ parenting styles are so different that they often have arguments over matters such as the Son’s bedtime, rest time, medical treatment, even the recent removal of his braces at the dentist was not without difficulty when the same consent form had to be signed by both parties.

25.  The Father explains that he has experienced a lot of problems with telephone or video calls with the Son, despite the provision in the Order dated 30 October 2017 that the Son shall have the right to initiate any telephone or video calls to the other parent as he wishes.  The Father explains that he had to seek the Court’s assistance to procure the Mother’s undertaking to facilitate the Son’s communication with the father with a reciprocal undertaking initiated by the Father.  (the undertaking referred to in paragraph 16 above).

26.  The Father’s position is that everything possible must be done to help the Son, particularly at such a crucial time for him, in terms of his academic development and because he is entering adolescence.  The Father does not believe that the current arrangement is beneficial, as it has been in place for the last few years and it is clearly not working for the Son. 

27.  Mr Rattigan, Counsel for the Father, submits that the Father proposes the following care arrangement for the Son :-

“(a) For Week A:

(i) The Son will be under the Father’s care from Monday after school until 7:30pm on Friday.

(ii) The Son will be in the care of the Mother from 7:30pm on Friday until Monday before school.

(iii) This is subject to the condition that the Mother will take the Son to school for his boys’ scout activities on Saturday and she must not object to the fact that the Father will attend the Son’s extra-curricular activities scheduled on Saturday namely, Boys’ Scouts and football training, because the father is also involved in these activities. The Father can return the Son to the Mother at 5:00 pm. On Sunday the Mother should continue to take the Son to [chapel] for his Sunday school and mass;

(b) For Week B:

(i) Save that the Son will be under the Mother’s case overnight from 7:30pm on Thursday to the following day, ie. Friday before school, he will be under the Father’s care for the rest of the week;

(c) The Week B arrangement will prevail during exam week.

(d) The Mother may have daily telephone / video access to the Son; and

(e) School holidays are to be shared equally as in Schedule A.

(f) Special Occasions are to be shared as in Schedule B.”

28.  Ms Rattigan submits that an alternative proposal, which is more similar to the existing care arrangement, is suggested by the Father in the event that the proposal above is not accepted by the Court, with the major care arrangements as follows  :-

“(a) For Week A:

(i) On Monday after school (or 11 am if no school) until 7:00pm, the Son will be in the Father’s care and thereafter in the Mother’s care until school on Tuesday;

(ii) On Tuesday after school (or 11 am if no school) until 7:00pm, the Son will be in the Father’s case and thereafter in the Mother’s care until school on Wednesday

(iii) On Wednesday after school (or 11 am if no school) until Sunday at 2:30pm, the Son will be in the Father’s care and thereafter in the Mother’s care until school on the following Monday

(b) For Week B:

(i) On Monday after school (or 11 am if no school) until 7:00pm, the Son will be in the Father’s care and thereafter in the Mother’s care until school on Tuesday;

(ii) On Tuesday after school (or 11 am if no school) until 7:00pm, the Son will be in the Father’s care and thereafter in the Mother’s care until school on Wednesday;

(iii)      On Wednesday after school (or 11 am if no school) until 4:30 pm on Saturday, the Son will be in the Father’s care; and on Sunday the Mother will take the Son to [Chapel] for his Sunday school and mass.  As the Son has football training until about 3:00pm on Saturday and the Son often wants to practise with his classmates after class or have a late lunch with them, the Father believes a short extension of half an hour for returning the Son at 4:30pm will be less rush for him and the Son.”

29.  The Father believes that changes to the existing care arrangement will help introduce more consistent parenting and it will reduce the conflict, regular arguments and disagreements between the parties.  The Father is of the view that this will also help improve the Son’s emotional condition and his eczema incidences as there will be less opportunity for him to be caught in the middle of this parent’s conflict.

30.  The Father emphasises that he has no desire to cut the Mother’s time with the Son, as he just wants to ensure that the best arrangement possible for the Son is put into place for the term time care arrangement at this crucial time for the Son and for going forward.  The Father explains that he is committed to adopt some flexibility in the care arrangements such as allowing the Son to have an extra dinner with the Mother on weekdays whenever the Son wishes, and when he does not have much homework and/or revision.

The Mother’s case

31.  The Mother has filed 3 affidavits to oppose the Father’s application, on 26 March 2018 (“1^st Affidavit”), 9 April 2018 (“2^nd Affidavit”) and 29 April 2019 (“3^rd Affidavit”) respectively.

32.  The Mother opposes to the Father’s application and proposals.  The gist of her opposition is that the Father’s proposals suggest that the Son spending more time with the Father, which means less time with the Mother, is detrimental to the Son. 

33.  The Mother, in her opening submissions, is of the view that she “strongly believe and insist that [Son] at present need both parents with joint custody, joint care and control (50/50) with the care arrangement ordered 25 September 2015”, with the main reasons summarised as follows :-

(a)  The Father told lies in relation to his submissions that the paternal grandmother would tutor the Son every Tuesday after school till 6:30pm for the hearing on 21 August 2018.  In fact, the paternal grandmother did not do so as submitted by the Father.

(b)  The Mother is always concerned about the Son’s physical, emotional and overall wellbeing.

(c)  Apart from academic aspect, the Mother believes the Son’s personal growth and wellbeing is the most important.

(d)  While hoping the Son to get admitted in the secondary division of the same school, the Mother is of the view that what is the most important is the Son’s self-esteem, his perception of life, his challenges and his understanding, his hope and confidence in himself as well as in both his parents.

(e)  When the Son is under both of his parents’ care and control, both of them will have many opportunities to share responsibilities to give guidance and encouragement to the Son to achieve and become his best.

(f)  Conflicts between the parents should not be reasons to change the current care arrangement, as parents can and should learn to overcome the differences and conflicts.

(g)  The Mother has positive impact on the Son, and she has much support from her parents in the taking care of the Son.

(h)  The Mother’s view is supported by the expert giving evidence in Court, the Psychologist, Dr. Leung.

34.  To summarise, the Mother “believes that joint parental responsibilities, joint care and control (50/50), joint custody is very significant for the [Son]’s wellbeing.  The Son also feels confident and will grow in his self-esteem when he has both parents’ time, love and support.”

35.  During the giving of evidence, the Mother emphasises that joint custody with joint care and control, with each parent each having half of the time in the care of the Son is important.  She also asks the Court to consider parallel parenting.

36.  In the Mother’s closing submissions, her stance has changed.  Instead of insisting for equal share of the time between the parties, she proposed the following care arrangement :-

“19. The Son will be under Mother’s care as follows:

(a) Week A from Sat 4:00pm to Thursday 9pm and Friday after school till 7:30pm

(b) Week B from Sun 2:30pm to Thursday 9pm and Friday after school till 7:30pm

(c) In the event that the Father is outside of Hong Kong when the Son is supposed to be under Father’s care, the Son to be under Mother’s care and overnight at Mother’s house.

(d) the Son is brought by the Mother when the Son is under Mother’s case (Week A) and the Son is brought by Father when the Son is under Father’s care (Week B) to attend the Sunday school (9:30am – 10:15am) and Sunday mass (10:30am - 11:30am) at [Church] as previous practice.

20. The Son will be under Father’s care as follows:

(e) Week A from Thursday from 9pm overnight to the following day Friday before school and Friday from 7:30pm to Sat 4:00pm.

(f) Week B from Thursday from 9pm overnight to the following day Friday before school and Friday from 7:30pm to Sunday 2:30pm.

(g) Saturday: cub scout (8:30am – 10am) , outside soccer training (11am - 12noon), School Soccer 12:30 - 2:30pm under Father care

21. Week A arrangement will prevail the week before text/exam week and during the text/exam week.

22. The Father may have daily phone / video access to the Son as following time:

- Monday to Wednesday

(a) one afternoon call to the Son after school

(b) one night call to the Son

- Thursday

(a) one afternoon call to the Son after school

- Friday

(a) one afternoon call to the Son after school

(b) The Mother has night call to the Son before the Son sleeps about 9:30pm

- Saturday

(a) One night call (Week A)

(b) The Mother has night call to the Son before the Son sleeps about 9:30pm (Week B)

- Sunday

(a) one call at night to the Son before he sleeps about 9:30pm (Week A and Week B)

- The Son calls Father and Mother when he wishes

- Call be phone / video access

- Call duration 15 minutes

- Afternoon call before 7pm

- Night call about 9:30pm and before the Son sleeps

23. School holidays are to be shared equally as my response to Schedule A.

24. Special Occasions are to be shared as my response to Schedule B.”

37.  The Mother concludes in her closing submissions by commenting that the Social Investigation Report has failed to take into consideration of the Son’s and the Mother’s relationship and bonding.  The investigation has not focused on how the Father’s new proposals can damage the Son’s trust and the consequences that will arise when the Son’s time with the Mother is reduced.

38.  The Mother submits that the focus should not be on parental differences, but on the Son’s best interest and on his relationship and bonding with his parents. Whatever steps the parents take should be for the protection and wellbeing of the Son.

39.  The Mother denies the accusations against her alleging that she has not been co-operative.  She is of the view that the accusations are untrue, and are created and fabricated for the purpose of the trial.

40.  The Mother emphasises that she is able and capable to look after her Son well with more responsibility and care.  The bonding between the Son and his maternal grandparents, uncle and cousins should not be undermined as well.

Evidence

41.  Both the Father and the Mother gave evidence during the trial, and no other factual witnesses were called.

42.  Ms Wan, the Social Work Officer, gave evidence in Court and relied on her Social Investigation Report dated 7 August 2018 as evidence in chief.

43.  Dr. Leung, the Clinical Psychologist, gave evidence in Court and relied on her Psychological Report dated 23 July 2018 as evidence in chief.

The legal principles  

44.  In relation to the application for varying orders for custody, care and control and access of a child, it is stipulated in section 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, which states that :-

“(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;”

45.  The general legal principles governing such applications are set out in s. 3 of the Guardianship of Minor Ordinance, Cap. 13, which states that :-

“(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 as 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 wishes 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;”

46.  In addition, reference is also made to the “welfare checklist”, with some of the items mirror the checklist to be found in the English Children Act 1989. Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdiction, there are a number of factors, which generally speaking need to be taken into account or considered, when determining children matters.  The “welfare checklist” is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating, inter alia, the care and control and also access matters, and the best interests of children generally.   The checklist includes the following factors :-

(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 under this Ordinance in the proceedings in question.

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

47.  I will consider those factors that are relevant.  However, I do not intend to go through them point by point.  Instead, I shall make general reference to some of the most relevant ones in my consideration.

Analysis of evidence    

48.  The parties have confirmed that there are no specific factual issues for the Court’s determination, and the Court is required to consider all circumstances of the case and all relevant factors, and to consider in the best interest of the Son, what the care arrangement and the holiday arrangement should be.

49.  As the parties have eventually agreed on the arrangement for school holidays and special occasions during the hearing of closing submissions, which they had subsequently filed a consent summons setting out the agreements, the only issue for the Court’s determination is the care arrangement for the Son.  The agreement on school holidays and special occasions is annexed at the end of this Judgment.

50.  I remind myself to regard the best interests of the Son as the first and paramount consideration and in having such regard, I shall give due consideration to (a) the wishes and feelings of the Son (having regard to the age and understanding of the Son, and to the circumstances of the case); and (b) all material information, including the Social Investigation Report and the also the Psychological Report.

About the Son’s wishes and feelings

51.  Ms Wan had interviewed the Son and she had included in her Social Investigation Report about the Son’s view in paragraphs 36 and 37 :-

“36. During the interview, [Son] asked the officer for a paper and he outlined a ‘Week A’ and ‘Week B’ tables. He told the officer that he lived [with] parents at each of their home at respective time according to the tables for years, all his time were equally shared between the parents, and he had no right to give opinions. [Son] disliked these ways of living. He disliked travelling between 2 homes in between weekdays every week. He said that the present living arrangement infeasible and had ignored a child’s feeling. His parents argued very often on handover matters and the phone access issues. He wished to have a stable and secured one home with love and respect. Therefore he preferred to live with the Father.

37.  [Son] said he loved both parents and they loved him too.  He knew that the Mother disliked the Father and the Step-Mother, therefore he avoided talking about them in front of the Mother.  He concerned about the Mother’s feeling.  From [Son], the Father and the Step-Mother were more willing to listen to him, so he liked to share everything with them.  He felt being understood and got advice from them whenever he encountered difficulties.  He felt more secured when he was under the Father’s care.  In his recent phone calls to the officers, [Son] expressed increased fear and sense of insecurity when he was asked to give views on the living arrangement by the Mother.  As he knew from the Mother that [maid] would be fired and the Mother would have no money and no [property] to live if he moved to the father, he faced great pressure and had poor sleep.  He was more nervous as the court day was approaching.  He had stretched his feet more frequently with occasional bleeding.”

52.  According to the Psychological Report, Dr. Leung reported in paragraph 9.8 of her Psychological Report that the Son “was aware of his right to speak directly to the Judge to voice out his wish.  However, his stated wish to stay with the Father everyday does not appear to be a well-thought out solution.  It fails to meet his expressed need to stay peacefully between the Parents.”

53.  There was a Meeting with the child conducted, with consent from both parties, and with the Social Work Officer having confirmed that it was the Son’s wish to meet the Judge.  I have reminded myself the purpose of the Meeting was not to gather evidence from the Son.  It was for the Court to listen to the views of the Son and to enable the son to gain some understanding of what is going on and to be reassured that the Judge has understood him.

54.  Pursuant to the Practice Direction PDSL-5, before the start of the meeting, I have explained to the Son that a recording of the meeting is to be kept and that the contents of the meeting will be conveyed to the parents.  The Son was also explained that the final decision of the dispute is in the Judge’s responsibility alone and the Judge will arrive at that decision after considering all relevant factors.  The Son was assured in clear terms that the outcome is never his responsibility.

55.  The Son initially expressed his views hoping to stay at the Father’s home and then said he would also like to stay at the Mother’s home.  The Son also expressed his feelings that he did not like to see professionals and to be asked about his views.    

56.  What shocked me were the questions asked by the Son.  He asked whether the parents will know about the conversation with the Judge and when the parent would be informed of the conversation. 

57.  I am of the view that the Son has reached the age and maturity of expressing his views.  However, at the same time, I am of the view that the Son is mature enough to realise the effect of his parents knowing how he expressed his views, and he did not express freely to the Judge, knowing that what was said to the Judge will be conveyed to his parents. 

58.  I have not lost sight of the worries from Dr. Leung that the Son’s stated wish to stay with the father “does not appear to be a well-though out solution”, though that was an expressed view and feeling stated by the Son. 

Social Investigation Report

59.  In relation to the Social Investigation Report, Ms Wan, the Social Work Officer, summarised her views in paragraph 38 therein that :-

“38. [Son], a child approaching 10, is the only son of the family. [Son] had started to live between two homes under the joint custody, care and control when he was 4 since 2012. Both parents provided basic care to the [Son] satisfactorily. Step-Mother is one of the core care giver of [Son] when he was living with the Father. He had developed a close relationship with the Step-Mother and the brother. However, the parents had high conflicting relationship and they communicated by email and What App only. They had enlisted the assistance from mediation service but could not solve their disagreement. [Son] was caught between the increased conflicts of parents mainly on handover and phone access issues. Both parents aware that joint care and control did not work. In view of the stress of [Son], the Father said that he had attempted to negotiate with the Mother but it ended up on dispute. Finally he applied for the sole care and control for the sake of the Son. The Mother, though aware the difficulties in carrying out joint care and control, she could hardly accept the Father having the sole care and control of [Son]. She preferred the existing joint care and control stayput.”

60.  Ms Wan made the following recommendations :-

(a)  The Father and the Mother be granted joint custody of the Son

(b)  The Father be granted care and control of the Son

(c)  The Mother be granted defined access as follows :-

(i) on rotation at Week A, from Friday after school to Sunday when the mass ends at 11:30 am; and Week B, from Sunday after mass ends at 11:30 am to Monday when school ends.

(ii) The Son could enjoy reasonable telephone or video access with the Father during non-access day.

(iii) The Father and the Mother share the long school holidays of the Son with prior mutual agreement.

61.  In view of the recommendations of Ms Wan, both parties have agreed not to ask for the traditional approach of care and control to one parent, with access to the other parents.  Both the Father and the Mother agrees that they wish to keep the sharing of the care of the Son, and asking for the Court’s determination of whether the care arrangements of the Son are to be varied. 

Psychological Report

62.  Dr. Leung, the Psychologist, had made a Psychological Report, pursuant to the order of the Court.  She had interviews with the Father, the Mother and the Son, and had home visits to both the Father’s home and the Mother’s home. 

63.  Dr. Leung has summarised the conditions of the Son in various paragraphs in her Psychological Report, including :-

(a)  “…… He is believed to have been caught up in a loyal conflict” (paragraph 9.2)

(b)  “The connection between emotional distress and physical distress has been well documented.  His body language unveiled the presence of emotional discomfort and distress in him……Stress had been identified as a possible trigger of eczema, besides hereditary and environmental factors.  His eczema problem turned severe last year, and was currently under control by mediation.  Alleviating his stress and distress is of paramount importance.” (paragraph 9.3)

(c)  “…… Parental conflicts, being his main source of stress and distress, were likely to have repelled his respect and love for the Parents, as well as having an impact on his sense of worth and perception of people.  Should parental conflicts persist, there will be long term impact on [Son]’s development in terms of physical health, concentration and achievement, self-esteem, emotional regulation, interpersonal and intimate relationships.” (paragraph 9.7)

(d)  Paragraph 9.8 (refer to paragraph 52 above)

(e)  Paragraph 9.9 (refer to paragraph 72 below)

64.  In view of the Father’s application by way of Summons, Dr. Leung’s view is summarised in paragraph 9.15 of her report :-

“9.15. All in all, in the best interest of [Son], variation of the existing access arrangement is not the solution to alleviate [Son’s] distress and to meet his developmental needs to feel loved by both the Father and the Mother, to have fun, autonomy and a sense of control. Hence, it is not supported.”

My views

65.  In gist, the Social Work Officer supports the Father’s application to vary the care arrangement, while Dr. Leung, the Clinical Psychologist, does not support the Father’s application.  There are conflicting views of the 2 experts.  Not surprisingly, the Father relies heavily on the Social Investigation Report, while the Mother relies heavily on the views of the Psychological Report.

66.  I have identified the following that are not in dispute by both the Social Work Officer and the Psychologist :-

(a)  Both the Father and the Mother loves the Son very much, and the Son knows that.

(b)  Since the 2012 Order, the arrangement of the Son has not been working well.  There has been much difficulties and conflicts between the parties.

(c)  The Son is caught in the conflicts between his parents, which are deep-rooted, and is suffering emotional distress and physical distress (which is believed to be a possible trigger of eczema)

(d)  The Son has expressed his wish to stay with the Father to both the Social Work Officer and the Psychologist (though the Psychologist is of the view that it does not appear to be a “well-thought out solution”).

(e)  The parties had sought much professional help all these years, including mediation, parent co-ordinator, counsellor and therapeutic counselling for the Son.

67.  I am of the view that it is in this factual scenario that I have to consider and make a ruling on the following questions :-

(a)  Whether there should be a change to the current care arrangements

(b)  If there should be a change, what kind of change

Whether there should be a change to the current care arrangement

68.  The Father is of the view that as the current care arrangement is not working and there should be a change in the interest and welfare of the Son.

69.  The Mother acknowledges that there are problems existing, but she is of the view that changing as per the Father’s application and subsequent proposals would not help.

70.  To describe more accurately the Mother’s position as I understand, she is of the view that changing to the Father’s proposals are not accepted.  There could be changes, but should be changing to going back to the 2015 Order, ie. instead of the Father having more time with the Son, there should be equal sharing of the time for care arrangement of the Son, as the Mother has repeatedly stated in her opening submissions and also when she gave evidence at trial. 

71.  Subsequently, the Mother changed her position and submitted that if equal sharing of the time is not accepted by the Court, the Mother should be the one having more time with the Son.  The Mother stated her proposals in her closing submissions, which I refer to in paragraph 36 above.

72.  The Mother substantiates her case by relying on Dr. Leung’s Psychological Report, in particular, paragraph 9.9 :-

“9.9 To decide what is in the child’s best interest should be developmentally informed. The Mother had been a full-time giver to [Son] for the first one-and-a-half year, breast-feeding him for a whole year. [Son’s] emotional attachment to the Mother cannot be denied. At the Mother’s home, he was relaxed and spontaneous, free to express himself, and playful like a child. To him, the Father was like a playmate and mentor, playing soccer and video game with him and teaching him soccer skills. [Son] needs to feel the genuine and unconditional love from both Parents. Placing [Son] predominantly in one home with the Father would be detrimental to [Son]. It would lead to [Son’s] loss of time with the Mother and loss of time to feel free and relaxed that he valued. The proposal to place [Son] predominantly in the Father’s home at the present stage is a simple solution to a complex problem.”

73.  Dr. Leung does not support the Father’s application. 

74.  In the Psychological Report, Dr. Leung had suggested : -

(a)  in paragraph 9.10 that “the intervention of a Parenting Coordinator or a Child-Inclusive Mediator would be necessary”, which a parent co-ordinator had been appointed (refer to paragraphs 17 and 18 above for details);

(b)  in paragraph 9.13 that “to help [Son] cope with parental separation and staying in 2 homes, 10 counselling session for him are recommended to help him understand, articulate and regulate his emotions; promote his self-esteem, his love and respect for his Parents; and develop critical and constructive thinking”, which counselling had been provided to the Son (refer to paragraph 19 above for details); and

(c)  in paragraph 9.14 that “to minimize conflict and mistrust between Parents about a parent blocking [Son] from contacting another parent, Parents may consider letting [Son] have a mobile phone, to allow him to be free to, and responsible for, contacts with either Parents”, which the Son had been provided with a mobile phone and there are rules about such communication by way of undertakings by the parties in the Order dated 21 August 2018 (refer to paragraph 16 above for details).

75.  The Mother suggests and explains in detail when giving evidence that even if there are problems and conflicts, they should not prohibit the parents having equal time with the Son.  In particular, with cases of high conflict, parallel parenting could be considered, so that each of the parents could have different and separate parenting styles, with each of the parents not trying to change or interfere with each other.  

76.  From the Mother’s evidence, I notice that during cross-examination she denied that there are “conflicts” or “problems” or such serious “conflicts” or “problems”, especially after Social Investigation Report and the Psychological Report. However, considering all the evidence as a whole, including parties’ cross-examination and the answers under cross-examination, I accept that after obtaining the Social Investigation Report and the Psychological Report, there are still much conflicts and problems in various aspects regarding the taking care of the Son, apart from daily routine of handover and daily schedule arrangement, such as handling school and homework matters, tutor lesson arrangement, arranging medical appointment, communicating the diagnosis and the medication to be taken after seeing a doctor, signing medical consent form etc. I also accept that the relationship and communication between the parties had not been working well and the arrangements for the Son had been inflexible.  I accept that all these eventually have an impact on the Son, causing him stress and possibly his eczema condition.  

77.  I can see the strength of the evidence of Dr. Leung.  I agree, in particular, that simply changing the time to be spent with the parents cannot solve the complex problem.  All parties, including the Father, the Mother and the Step-Mother all has a role to play. 

78.  I have also considered Dr. Leung’s evidence in Court, saying that in general, a child’s potential in adopting to 2 different styles of parenting cannot be undermined.

79.  However, I have not lost sight to the observation from the Social Work Officer, who has summarized the views of the Son in her report (which I have quoted in paragraph 51 above).

80.  I have also considered the background of the case.  It is not the case that the parents have not tried sharing the care of the Son before.  The joint care and control, and sharing of the care time of the Son had been in place since the 2012 Order, and subsequently varied by the 2015 Order.  Since then, the Son had been moving in between 2 homes during weekdays. 

81.  I accept the Social Work Officer, Ms Wan’s evidence and the accuracy of her record in her Social Investigation Report, especially in relation to the views and feelings of the Son.  Her evidence is clear and direct and after considering her evidence and the cross-examination from the Mother, I am of the view that the evidence of Ms Wan is comprehensive.  I accept that she has made the recommendations after careful and due consideration of all the relevant factors and circumstances of the case.  As a result, I place much weight to her evidence, analysis and recommendations. 

82.  In the past when the parties were sharing almost half of the time with the Son, when their styles were so different and much conflicts had been caused, they were almost like parallel parenting, with each having his/her own view and style in parenting the Son.  Much conflict has been caused, and the Son has been caught in between.  With some minor variation of the care arrangements of the Son, problems could still not be solved.  Obviously, the existing arrangements have not been working well.  

83.  I am of the view that parallel parenting is fact sensitive.  With the background of the Son and the parties of this case, with the Son’s academic background and the expectations from both his parents about his schooling and education, if the Son is to continue studying at the secondary branch of the same school, or similar secondary schools which is demanding academically, what tutorial lessons to attend, which extra-curricular activities to choose etc will continue to be a problem.  I have reservation and doubts whether the Son could cope with each of the parents having a different and separate style of parenting, including different time schedules of daily routine, study plan, lesson and tutorial arrangements etc.  In view of the facts of this case, if the Father and the Mother disengage and not co-operating or communicating to work things out, I do not think this is in the best interest of the Son.

84.  I am of the view that in the best interest of the Son in this case, instead of each of the parents adopting his/her own parenting style, the parents should co-operate and should continue co-operating.  

85.  Having considered all the points, I am of the view that if there is no change at all, or if the Mother is insisting on 50/50 equal share of the time of care with the Son, that would not help at all.

86.  As shown in the proposals of care arrangement of the Mother in her closing submissions, she no longer insists on equal sharing of the care time of the Son.  I am of the view that after hearing evidence, the Mother understands that it is not practical or beneficial to the Son to insist on equal sharing of time between parents and the Mother understands that the current arrangements are not working well.  From her proposals in her Closing Submissions, the Mother accepts the Son residing predominantly in one home during almost all weekdays. The questions still in dispute are which home the Son should stay predominantly during weekdays and the exact time for handover between parents.

87.  In my view, I agree that simply changing the time to spend with the Son would not help. Everyone has to work hard and there should be a change of attitude as well, as to how the adults view and treat each other.  However, with the facts of this case, parties having time in the past to communicate and to try to work things out, with all the professional help sought, either on their own initiation or under the Court orders, there are still problems causing distress to the Son.  In the interest of the Son, I am of the view that the present care arrangements have to be changed.

What the change should be and what the care arrangement should be

88.  The next question is, what the change should be and what the care arrangements should be.

89.  In view of the background of the case, with the views expressed by the Son of the difficulties in moving between homes during weekdays, and in view of the life style of the parties, I am of the view that the Son stays predominantly at one home during weekdays is in his best interest.

90.  However, I have not lost sight of the need to maintain the bond with the other parent whom the Son will not stay with predominantly during weekdays and the views of both parents hoping to share the care of the Son, instead of the traditional approach of care and control be granted to one parent and access be granted to the other parent.

91.  I notice that arrangement of the Son staying predominantly with one parent during almost all weekdays is in fact agreed and suggested by the Mother in her closing submissions (details of her proposals summarised in paragraph 36 above).

92.  The question I have to rule is, whether the Son should predominantly stay at the Father’s home or the Mother’s home during weekdays and what the exact care arrangements should be.

93.  The Mother relies on the evidence of Dr. Leung, who is of the view that the Son feels more relaxed at the Mother’s home, while he feels “寄人籬下” (under the roof of others) at the Father’s home. Paragraph 9.9 of the Psychological Report is especially relied on (with details referred to in paragraph 72 above).  The Mother is of the view that she, together with the support by her parents, could take care of the Son well and asks that the Son stays predominantly at her home during weekdays. 

94.  Without disrespecting the expertise of Dr. Leung, I do have reservation as to the conclusion of Dr. Leung and whether much weight should be put on her evidence for the following reasons.  Dr. Leung had not read any of the Court papers of the case after her report was filed on 23 July 2018 and she had not seen the parties’ narrative affidavits filed prior to the trial.  I am not sure whether her understanding of the case is comprehensive.  Her expression that the Son feels “寄人籬下” (under the roof of others) was made towards the end of her giving of evidence in Court, not in her Psychological Report. 

95.  Dr. Leung’s tolerance of the Mother’s behaviour seems unreasonably high, which has caused some concern of the Court of how much weight to be put on her evidence.  When Dr. Leung was cross-examined of her view that the Mother told the Son that his Father no longer wanted him, Dr. Leung’s answer was “understandable”. When put to Dr. Leung that this was a terrible thing to say to a child, her immediate response was that the Mother “was not aware” of how terrible this was.  She was then asked if she agreed that this was not putting the Child’s interest first.  Dr. Leung agreed but immediately qualified this by saying that it was “understandable as the Father had abandoned her”. 

96.  Dr. Leung was asked about her report that the Mother “admitted that in the last 2-3 years, whenever she got provoked by the Father, she released her frustration on [Son]”.  This was something of concern and Dr. Leung was asked how the Mother released her frustration on the Son.  It was surprising to learn that Dr. Leung had clearly not explored this further with the Mother. She said it probably meant “scolding, expressing her anger”.  When Dr. Leung was asked if the Mother said how often she did that, Dr. Leung’s evidence was “I didn’t ask.  Probably when the Father provoked her”.  Ms Rattigan suggested that Dr. Leung seemed to have automatically assumed that the Mother taking her anger out on the Son could be blamed on the Father.

97.  Another reason why there is concern from the Court is related to the 2 drawings of the Son, which was drawn by the Son during the interview with the Social Work Officer, marked as exhibit P1 and P2.  When Ms Wan gave evidence, she produced the 2 drawings, which shows what the Mother has done (eg. in threatening that she may call the police if the Son continues crying and in rushing the Son to hang up the call with the Father) and how the Son felt (fear and nervous). 

98.  P1 and P2 were shown to Dr. Leung during cross-examination and she said she found it “totally unbelievable” that the Mother would do what the Son had described.  Dr. Leung appeared to believe that the Son had done the drawings for Ms Wan after she and Ms Wan had conducted their assessments, had spoken briefly and that the Son could have been influenced by the Father.  It was the evidence of Dr. Leung that :-

“I am concerned about the date. After I finished the assessment the social worker called me to exchange views, [Son] called her after the assessments. I have given my feedback to them, I would think that the Father would want to change to influence [Son] to say something” (emphasis underlined)

99.  The facts of the case were, when the Son made those drawings during the interview by Ms Wan, it was in her office on 8 June 2018.  The Son’s meeting with Dr. Leung was on 15 June 2018, which was after the drawings were made.  Therefore, there is no way that either the Father or Ms Wan could have “influenced” the Son as a result of knowing that Dr. Leung did not support the Father’s application.

100.  Dr. Leung stated in her report that while the Son described the Mother as fierce, “he failed to cite any episode to support this description”, which she seems to maintain when giving evidence in court.  I accept the submissions from Ms Rattigan that it is quite clear from this that the Son did not open up to Dr. Leung in the manner that he did to Ms Wan, whom the Son first met.  It was possible that the Son simply did not repeat what he had told Ms Wan to Dr. Leung.  From viewing the content of P1 and P2, I am of the view that what the Son described to Ms Wan and drew for her in P1 and P2, a week before the meeting with Dr. Leung, would be regarded as an example of the Mother being “fierce”. Ms Rattigan submits that Dr. Leung seems to have missed an important aspect of how the Son feels about the Mother and their tense relationship at occasions (while knowing the stress and difficulties the Son has been facing, as summarised in paragraphs 9.2 to 9.7 of her Psychological Report), which I tend to agree.

101.  When giving evidence in Court, Dr. Leung eventually accepted that if the events occurred as drawn by the Son in P1 and P2, that would be very bad indeed. Under cross-examination, Dr. Leung also accepted that what the Mother said to the Son, as reported in paragraph 37 of the Social Investigation Report (with details refer to paragraph 51 above) was inappropriate.  When being asked if Dr. Leung agreed that it showed that the Mother was not putting the Son’s interests first, she said that she agreed, but she further added that the behaviour of the Mother could be “an oversight”.

102.  It is not acceptable to tell a child that their parent no longer wants him/her.  It is not acceptable to make a child feel responsible for the security of a [maid]’s job or the home and financial security of a parent.  It is not acceptable to try to interfere in a child’s relationship with the other parent or to threaten a child with calling the police on them.  Ms Rattigan submits that the Mother has done all those and is clearly not putting the Son’s best interest with priority.

103.  The Mother explained that she might not have been perfect in all aspects.  She is improving and she will further improve in future.  While I have no doubt of the love of the Mother towards the Son and her willingness to improve for better for future, the facts remain what happened in the past had an impact on the Son, and that Dr. Leung by commenting that those behaviour of the Mother as “understandable” or “an oversight” or “not believed her capable of it”, had raised concern of the Court of how much weight should be put on Dr. Leung’s evidence of her views towards the care arrangements of the Son.

104.  In considering whose home the Son is to stay predominantly during weekdays, I have considered parties’ submissions and all the evidence.  I have also considered the following :-

(a)  While Dr. Leung had pointed out the importance of the Mother to the Son as “Mother had been a full-time give to [Son] for the first one-and-a-half year, breast-feeding him for a whole year.  [Son]’s emotional attachment to the Mother cannot be denied.  At the Mother’s home he was relaxed and spontaneous, free to express himself, and playful like a child”, as summarised in paragraph 9.9 in her Psychological Report (refer to paragraph 72 above), which I have no doubt about the love and relationship between the Mother and the Son, I have also considered that the Son is now growing up.  He is a boy of about 10 years old, now going to his adolescence and entering into secondary level of education.

(b)  The fact is that both the Father and the Mother are now working full time.  While they are working, both have to rely on other family members to assist in taking care of the Son.

(c)  With the Mother’s working time, before she got back home in the evening, the Son was taken care of by her parents and the maid. 

(d)  The Father has got married, with his Wife being a full time home maker.  Before the Father returned home from work in the evening, the Son was taken care of mainly by the Step-Mother, supported by maids and the paternal grandmother.  

(e)  Both the Mother’s side and the Father’s side can take good care of the Son while the Son is in their respective care.  The relationship of the Son to the Mother’s side family and the Father’s side family is good and satisfactory.

(f)  The Son has expressed his wish and feelings to stay with his Father to both the Social Work Officer and the Psychologist.

(g)  I agree that the Son is a “verbally expressive boy”, as described by the Social Work Officer in paragraph 35 of the Social Investigation Report.

(h)  I accept the accuracy of the record of the feelings of the Son towards his parents and the Step-Mother and what the Son has told the Social Work Officer as recorded in the Social Investigation Report, especially in relation to paragraphs 36 to 38 therein (which I have referred to in paragraphs 51 and 59 above), and in particular, the Son’s view that “the Father and the Step-Mother were more willing to listen to him, so he liked to share everything with them.  He felt being understood and got advice from them whenever he encountered difficulties”

(i)  While the relationship between the Son and the Step-Mother is good and harmonious, the relationship and bonding of the Son with the Mother, being the biological mother, can never be replaced.

(j)  The relationship between the Son and his Step-Brother is good.  I accept that the Son enjoys spending time with his Step-Brother.  Spending time and living together with the Step-Brother can bring much sibling joy, which the Mother cannot provide or replace.

(k)  The expectation of the parties for the education of the Son.  Both parties have indicated that they are capable in handling the academic aspect of the Son, with the assistance from family members and tutors.

(l)  In terms of the going to the secondary level of education, whichever school the Son may enter, with the Step-Mother being a full-time housewife, she could assist and attend to the Son’s needs right after school, is beneficial to the Son.

105.  Having considered parties’ submissions, all the evidence as a whole, the Son’s wishes and all the reports concerned, and with the best interest of the Son in mind, I am of the view that the Son should stay predominantly at the Father’s home during weekdays.  Considering how predominantly the arrangement should be, I have to balance the emotional needs of the Son and the need to spend much time with the Mother at the same time.

106.  I am of the view that the Son should stay mainly at the Father’s home during weekdays, on rotation of Week A and Week B.  The time the Son be in the care of the mother be as followings :-

(a)  Week A: from Friday at 7:30 pm to Monday to school; and

(b)  Week B: from Sunday at 2:30 pm to Monday to school.

107.  In addition, the Son should have no less than one dinner with the Mother during weekdays, in order to maintain the bonding of the Son and the Mother.  With the best interest of the Son in mind, I am minded to encourage the parties to be flexible in which day(s) of the week to have dinner and the exact time for dinner, bearing in mind the Son is entering secondary level of education and the amount of school work is uncertain.

108.  As it is the Father’s stance that he is committed to adopting some flexibility in the care arrangements of more time for the Son with the Mother during weekdays whenever the Son wishes, allowing flexibility could be beneficial.  However, more stress could be caused to the Son in parties trying to ascertain the wishes of the Son. 

109.  Therefore, I would order that the Son has dinner with the Mother on Wednesday, from 7:30pm to 9:30pm, if no agreement could be reached between the parties about which day(s) and the dinner time duration during weekdays.

110.  I am of the view that the Mother can access the Son through Facetime or Skype or any other video/audio link using the mobile phone when the Son is at the Father’s home.  I have considered the Mother’s proposal in this regard in her closing submissions (referred to in paragraph 36 above).  I notice that, in fact, this had been agreed by the parties and ordered in :-

(a)  The 2015 Order (details referred to in paragraph 11(b) above);

(b)  The order dated 30 October 2017 (details referred to in paragraph 14 above); and

(c)  The undertaking in the order dated 21 August 2018 (details referred to in paragraph 16 above). 

111.  I am not minded to order how many times in a day the son should be contacted by mobile phone or the duration of the call.  Flexibility should be given in view of the Son’s age, needs, views and feelings.  Therefore, no order will be given in this regard.  But I encourage and expect parties to be more sensitive, considerate and understanding of the Son’s needs and wishes, in view of this mode of communication with the Son.

Observations

112.  At the closing submissions, both parties have confirmed with me the following :-

(a)  Both agree that with the Son entering the secondary school, there is the need to review and discuss the arrangements in future to cater for the needs and feelings of the Son, bearing in mind his best interest in mind;

(b)  Both agree to continue with co-parenting courses; and

(c)  Both agree to attempt mediation in future, if the need arises.

My understanding is, both the Father and the Mother are willing to continue co-operating and working hard in future for the best interest of the Son.

113.  Having made the ruling and analysis for this case, after consideration of all the circumstances of the case and having the best interest of the Son in mind, I have to say that there is no perfect arrangement for a child.  Both parties may feel aggrieved with the Court’s ruling.  But this is the reality the parties have to face, with the time with the Son, shared with the other parent in a divorce family, much less than the time with the Son during marriage.  The parties are encouraged to focus not on what each of them wants from the Son or wants from the Court, but focus on the needs of the Son from his perspective and what is at his best interest, especially at this dynamic stage of entering adolescence.

114.  With my ruling, challenges ahead are still anticipated, and co-operation and communication between the parties in future are expected.  In my view, relationship building and bonding with the Son does not based solely on the time spent.  Quality time spent with the Son and providing a peaceful and harmonious environment whichever parent the Son is spending time will, with the co-operation and understanding from the other parent, help in maintaining relationship and bonding.

115.  I do find some useful paragraphs from Dr. Leung’s Psychological Report, which I am of the view are timely reminders for the Father and the Mother as a way forward, as follows :-

(a)  “[Son] needs to see and hear mutual respect and harmony between the parents in order to feel good about him, to feel fret-free, and to grow healthily…… What needs to be changed imminently is the attitude and behaviour of the Parents and Step-Mother.  The Father, the Mother and the Step-Mother have to learn the proper etiquette in exercising the care and responsibilities for [Son]  (paragraph 9.10)

(b)  Both Parents affirmed their commitment to making their best effort to have a ‘healthy co-parenting relationship’ (meaning willingness to put the child’s needs first, to solve problem, communicate, network, make decisions, settle disagreements, and build a strong co-parent business team).  They acknowledge the importance that [Son] had a good relationship with the other parent.  They believed that the other parent loved [Son] and wanted to be an active parent. (paragraph 9.11)

(c)  Parenting is a life-long process (paragraph 9.12)”

Conclusion

116.  Although the parties are in agreement of maintaining the same terminology of joint care and control, I am not of the view that the parties are co-operating to such a high level to justify the order for a joint care and control.  I am of the view that a shared care order should be given, with the detailed arrangement set out, varying the previous orders granted.

117.  With the reasons aforesaid, I make the following orders:-

(1)  The care arrangement of the Child in the Order dated 25 September 2015, which was varied by paragraph 4 of the Order dated 21 August 2018, be varied to as follows, commencing on 26 June 2020, on rotation of Week A and Week B :-

  (i)  With the Son under the care of the Mother for :-

  (a) Week A: from Friday at 7:30 pm to Monday to school; and

  (b) Week B: from Sunday at 2:30 pm to Monday to school.

  (ii)  Subject to (2) below, the Son be under the care of the Father for the remaining time.

(2)  In addition to (i), the Son has no less than one dinner with the Mother during weekdays.  In the event no agreement could be reached between the parties about the day(s) or time for dinner during weekdays, the Son shall be under the care of the Mother on Wednesday, from 7:30 pm to 9:30 pm during school terms.

(3)  By consent, the long school holidays of the Son be shared between the Father and the Mother in the manner as set out in Schedule A.

(4)  By consent, for special occasions, the Son will be in the respective care of the Father and the Mother in the manner as set out in Schedule B.

(5)  By consent, the parties do continue attending co-parenting courses.

(6)  By consent, the parties do attempt mediation in future, if the need arises.

Costs

118.  As children matters have been involved, I order that there be no order as to costs, including all costs reserved.  This is a costs order on a nisi basis, which shall be made absolute within 14 days. 

Schedule A

For school holidays, the parties agree as follows: -

1.    The school holidays of Son such as Christmas / New Year, Chinese New Year and Easter be shared between the Parties more or less equally herein.

2.    For the calculation of holidays,

(a)  the first day of the long holiday is the day succeeding the last school day prior to the holiday;

     For handover during holidays,

(b)  handover time on the first day of the school holiday be at 10:00 a.m.;

(c)  handover time on the last day of the school holiday be at 6:00 p.m.

3.   (a) Overseas holidays for Christmas / New Year, Chinese New Year, and Easter are to be agreed by the Parties no less than 3 months in advance of the first day of such school holiday unless otherwise mutually agreed.

(b) Overseas holidays for summer are to be agreed by the Parties no less than 4 months in advance of the first day of such school holiday unless otherwise mutually agreed.

4.    Son should only have one overseas holiday in each of the holidays of 14 days or less, namely Christmas, Chinese New Year and Easter.

5.    The parties shall acknowledge that there may be special circumstances such as birthdays, overseas wedding or family engagements in a particular school holiday and if a party seeks to swap his/her holidays with the other party, he or she should do so with no less than 10 days’ notice. The party being consulted should respond within 7 days upon receipt of the other party's request and should not withhold his or her consent unreasonably.

6.    The party who will travel with Son is to provide the other party with the flight itinerary, accommodation and contact details not less than 72 hours prior to Son's departure unless otherwise agreed.

7.   During long school holidays, Son will continue to have the option of telephone or video access to the non-traveling parent as he wishes.

8.   Christmas/New Year

(a)  From Fall 2019 onwards, in all odd years, the Mother will have the first part of the holiday with handover on Boxing Day at 3:00 p.m. and the Father will have the rest of the holiday including New Year day until school starts. In all even years, the Father will have the first part of the holiday with handover on Boxing Day at 3:00 p.m. and the Mother will have the rest of the holiday including New Year day until school starts.

(b)  The objective is to allow Son to spend Winter Solstice, Christmas Eve and Christmas with one parent and New Year's Eve and New Year with the other parent in alternate years.

(c)  The party who has the first part of Christmas holiday may have the priority to travel abroad with Son and shall seek the other party's consent no less than 3 months in advance. In the absence of such notification or travel plan, the party who has the second part of the holiday may opt to travel with Son abroad.

9.   Chinese New Year ("CNY")

(a)  From 2020 onwards, in all even years, the Father will have the first part of the holiday with handover on the 2^nd day of CNY (Chor 2) at 3:00 p.m. and the Mother will have the rest of the holiday, and vice versa in all odd years.

(b)  The objective is to allow Son to celebrate the eve of CNY and the first day of CNY (Chor 1) with respective parents on alternate basis.

(c)  It has been the parties' practice that they will alternate between CNY and Easter to take Son for overseas trip. Subject to paragraphs 3 and 4 above, in 2020 and subsequent even years, the Mother has the first option to take Son for an overseas trip during CNY and the Father has the first option to take Son abroad during Easter and vice versa in succeeding odd years.

(d)  The party who has the first option to travel abroad with Son during CNY holiday shall seek the other party's consent no less than 3 months in advance of the CNY holiday. In the absence of such notification or travel plan, the other party may opt to travel with Son abroad.

10.   Easter

(a)  From 2020 onwards, in all even years, the Mother will have the first half of the holiday and the Father will have the rest of the holiday, and vice versa in all odd years.

(b)  The split will hinge upon the number of days taken by the parties in the Christmas and CNY immediately preceding the particular Easter so that there will be an equal split of the school holidays between the parties.

(c)  Paragraphs 3, 4 and 9(c) are referred to in respect of overseas vacation during Easter. For the avoidance of doubt, in 2020 and subsequent even years, the Father has the first option to take Son for an overseas trip during Easter and the Mother has the first option to take Son abroad during Easter and vice versa in succeeding odd years.

(d)  The party who has the first option to travel abroad with Son during Easter holiday shall seek the other party's consent no less than 3 months in advance of the Easter holiday. In the absence of such notification or travel plan, the other party may opt to travel with Son abroad.

11.   Summer

(a)  From Fall 2019 onwards, Son will spend more or less equal time with each parent on a weekly rotational basis in Hong Kong or overseas with each parent having the choice of taking Son for an overseas holiday for not more than 21 days as provided for in sub-paragraphs b and c below;

(b)  The Mother will have the first choice of the dates for overseas holiday in all odd years. In the absence of any notification to the Father by the Mother 4 months in advance of the first day of Son's summer holiday, the Father will have the first choice of the dates for overseas holiday by default.

(c)  The Father will have the first choice of the dates for overseas holiday in all even years. In the absence of any notification to the Mother by the Father 4 months in advance of the first day of Son's summer holiday, the Mother will have the first choice of the dates for overseas holiday by default.

Schedule B

For special occasions, the parties agree as follows:-

12.   Son's birthday [date]

If Son's birthday falls on a weekday, the term time care arrangements shall prevail. If his birthday falls on a weekend, Son shall decide as he wishes (as in 2018).

13.   Mother's birthday [date]

Son will be in the Mother's overnight care from after school or 3:00 p.m., whichever is the earlier, and the term time arrangements will resume on the following day.

14.   Father's birthday [date]

Son will be in the Father's overnight care from after school or 3:00 p.m., whichever is the earlier, and the term time arrangements will resume on the following day.

15.   Mother's Day

If Mother's Day does not fall on the Mother's long weekend, Son will be collected by the Mother after church that day and stay overnight with the Mother and the term time arrangements will resume on the following day.

16.   Father's Day

If Father's Day does not fall on the Father's long weekend, Son will be collected by the Father after church that day and stay overnight with the Father and the term time arrangements will resume on the following day.

17.   Father's family's birthday :-

(a)  Son will be in the Father's overnight care on his wife's birthday on [date]. If that date falls on the Mother's care, Son will be handed over to the Father at 3:00 p.m. on [date];

(b)  On Son's half-brother's birthday on [date], Son will be in the Father's overnight care (from after school or 3:00 p.m., whichever is the earlier) and the term time arrangements will resume on the following day. If Son's half-brother's birthday falls during Chinese New Year holiday and Mother's trip with Son abroad, then Son will celebrate his half-brother's birthday before or after Son's trip; and

(c)  Father will have dinner access to Son from 7:00 p.m. to 9:00 p.m. if the paternal grandmother's birthday on [date] falls on Mother's access.

18.   Mother's family's birthday:-

(a)  Mother will have dinner access to Son from 7:00 p.m. to 9:00 p.m. if the maternal grandmother's birthday on [date] falls on Father's access; and

(b)  Mother will have dinner access to Son from 7:00 p.m. to 9:00 p.m. if the maternal grandfather's birthday on [date] falls on Father's access.