HKW v. YYC

FCMC 3123/2021

[2023] HKFC 262

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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JUDGMENT
(Custody, care and control)

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1.  This is the trial concerning the care arrangements of the child of the family (“Cazzie”), a girl born in July 2019 (about 4 years and 6 months old now).  At the time of trial, Cazzie is studying K2 in a kindergarten since 1 September 2022.

2.  The parties agree there should be an order for joint custody[1] but contest the care and control of Cazzie.

Background

3.  The respondent (“F”) is about 36 years old and is an Inspector of the Customs and Excise Department having a fixed “8-day” work schedule.

4.  The petitioner (“M”) is also about 36 years old and works as personal assistant to a CEO normally working from 9:30 am to 6:30 pm in weekday and off on public holidays, weekend and Sunday.

5.  The parties met in 2005 and married in September 2015.  In January 2016, they moved to a flat in South Horizons, Ap Lei Chau (the “FMH”).

6.  Cazzie was born in Canada in July 2019. Prior to and after Cazzie’s birth, the parties had a lot of arguments because M accused F of having extramarital affairs.  A post nuptial agreement was therefore signed[2] (the “PNA”), in which the parties agreed, inter alia, custody of Cazzie be to M.

7.  On 25 December 2020, the parties agreed to divorce. They initially attempted mediation but in vain, and then decided to instruct lawyers.

8.  At that time, the parties continued to live together with Cazzie and a domestic helper at the FMH.

9.  On 15 March 2021, M made her first “assault” allegation against F.  The police were called, but no further action was taken.

10.  On 3 April 2021, M made another allegation of “assault” against F.  The police were called, and both parties gave statements to the police.

11.  While F was detained by the police, M unilaterally moved with Cazzie to an undisclosed location and commenced these divorce proceedings shortly thereafter on 9 April 2021.

12.  The new district where Cazzie was residing, and her new schools, were only revealed to F at the First Appointment Hearing on 21 June 2021 and an interim contact order was made at the hearing. The interim access[3] ordered by me are as follows:

i.     F do have day access to Cazzie on the 5^th day of each 8-day period commencing on 20 June 2021 from 10 am to 7 pm;

ii.    F do have another day access to Cazzie on the 7^th day of each 8-day period commencing on 20 June 2021 from 10 am to 7 pm;

iii.   ;F shall provide M with his roster until further order;

iv.   F do have indirect video access to Cazzie on the 1^st, 2^nd and 6^th day of each 8-day period for not more than 30 minutes by Whatsapp or similar technology;

v.    All the handovers shall be taken place at Tseung Kwan O MTR station by either M and/or the domestic helper;

vi.   In case Cazzie has to attend the playgroup on the interim access to F, he should be responsible for taking her to the playgroup.

13.  On 19 April 2022, a fresh interim access order[4] was granted by me in place of the interim access order dated 21 June 2021, in particular F do have staying access from 10 am to 7 pm the following day on any one day each week during the Chinese New Year, Easter, Summer and Christmas holidays provided that F provides the social welfare officer (“SWO”) with the employment contract of the domestic helper and upon the confirmation of the SWO with the domestic helper.

14.  F was charged with the offence of “Assault Occasioning Actual Bodily Harm” in respect of the incident happened on 3 April 2021 and the trial was fixed at the [Court] on [date (actin no.)].  At the hearing, the charge against F was dismissed and he was bound over with $1,500 for 18 months.

F’s case

15.  F has moved close to Cazzie’s school and will be better placed to assist in case of any emergency at school. His work posting has moved to the Sheung Wan Hong Kong Macau Ferry Terminal, just 15 to 20 minutes away from his home and Cazzie’s school. He has the assistance of his own mother (Cazzie’s paternal grandmother) who has already been joining Cazzie during access and will be completely retired from October 2023.

16.  F set out detailed alternative proposals for care and control, i.e. (i) care and control to F (his primary position), (ii) shared care to the parties (his second alternative), and (iii) a gradual shift to shared care (third alternative).

17.  F also proposes specific directions concerning Cazzie’s (a) identity documents, (b) her school information and (c) her activities.

18.  He said that M has made a series of unmeritorious allegations against him, and has sought to exclude him from Cazzie’s life. There is a real risk of emotional harm as a consequence of M’s conduct.

19.  Right before these proceedings started, M abducted Cazzie from FMH and took her to an unknown location without informing F or obtaining his consent. She refused to permit any contact between Cazzie and F for nearly 3 months.

20.  M falsely told the police and this Court that H “assaulted” her in the early hours of 3 April 2021.

21.  M gave contradictory evidence in these proceedings and in the criminal proceedings. F was acquitted in the criminal proceedings with binding over of $1,500 for 18 months after trial on [date]. In M’s sworn evidence in the magistracy, she said that F did not assault her.

22.  M has made over many false, exaggerated, or irrelevant allegations against F. M’s motivation for making these allegations is malicious.

23.  M has repeatedly sought to reduce contact between Cazzie and F, breached the access Order of 19 April 2022, refused to permit any remote video access after 21 April 2022 and excluded F from decisions regarding Cazzie’s schooling and activities.

24.  She seeks to justify her attempts to exclude F from Cazzie’s life and is likely to undermine Cazzie’s relationship with F.

25.  In his closing submission, F asks for sole care and control with defined access to M as his primary position and alternatively, for shared care and control with the child arrangement on the 2/2/3/2/2/3 fortnightly basis as per F’s Statement of Proposals at §§18-20. That is to say, in the first week, M has the care and control on Monday and Tuesday, F has the care and control on Wednesday and Thursday, M has the care and control on Friday to Sunday.  In the second week, just vice versa, F has the care and control on Monday and Tuesday, M has the care and control on Wednesday and Thursday, F has the care and control on Friday to Sunday. 

M’s case

26.  M complained that F has affairs with other women during her pregnancy. She accessed F’s laptop and read his messages with other women and his mother. In her witness statement, M stated that she saw the WhatsApp conversations between F and his girlfriends called “Charlotte” and “Tiffany” as well as his mother.  M exhibited a number of messages between F and women called “Charlotte” and “Tiffany”, including some photos and WhatsApp messages on 10 March 2021, 15 March 2021, and 16 March 2021, as well as with F’s mother dated 11 March 2021. 

27.  M believed that the messages showed F having a plan to kick her out of the FMH at that time.

28.  M’s parents and her sister are all living in the same district with M and are all willing to assist her in taking care of Cazzie. The domestic helper, Ms. Noeme Palabrica, has been hired to look after Cazzie since her 1-month old and will continue to work for M.

29.  M has very flexible working hours and 25 days annual leave a year.  Since February 2022, she has been allowed by her employer to work from home.  Her office is very close to her residence and Cazzie’s school.

30.  M queried F’s availability to Cazzie due to his shift work on “8-day” schedule.

31.  M asks for sole care and control of Cazzie with defined access to F.  In M’s Statement of Proposals dated 16 November 2022, she would not agree to any staying access.  On Day 3 of the trial, she insisted that overnight access should not take place without a domestic helper, then saying it should not happen until Cazzie turns 6.

Relevant Law

32.  Section 3(1)(a) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”) sets out the general principles when it comes to matters relating to the custody or upbringing of a minor:

(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 … 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.

33.  The general approach to “best interests” decisions can be summarized as follows:

(i)    There can be no presumptions in a case governed by section 3 of the GMO. The only principle is that the welfare of the child is paramount (see Re F [2012] EWCA Civ 1364 (CA); [2013] 1 FLR 645 per Munby LJ at §37).

(ii)   What is required is a “global, holistic evaluation”, i.e.: “Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken)” (see Re F [2015] EWCA Civ 882 (CA); [2017] 1 FLR 979 per Ryder LJ at §30).

(iii)  The “welfare checklist” may be a useful aide memoire (H v N [2012] 5 HKLRD 498 at §31) but the court will only consider those factors in the checklist in so far as they are relevant to this case.  Those factors are:

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

(b)  his physical, emotional and educational needs;

(c)  the likely effect on him of any change in his circumstances;

(d)  his age, sex, background and any characteristics of his which the court considers relevant;

(e)  any harm he has suffered or is at risk of suffering;

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

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

(iv)  It is trite that recommendations contained in a Social Welfare officer’s report are not binding and cannot replace the Court’s own “best interests” determination (H v N at §36).

34.  The law is also clear that there is no presumption in favour of a mother, and that “such sexist views are obsolete”, as explained by Poon J (as he then was) in H v N at §18, citing the Court of Appeal in PD v KWW [2010] 4 HKLRD 191:

“D1. Equality principle

18. In approaching section 3(1), subject to the position under illegitimacy, the court will always put the competing parents on an equal footing. Any role or gender discrimination is not permissible. This equality principle reflects the shift in social values concerning parental responsibilities and the universal recognition that the long-term best interests of a child is best protected if both parents are, despite the breakdown of their relationship, involved equally. As aptly explained by Hartmann JA in PD v KWW [2010] 4 HKLRD 199 :

“44. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child. That is no longer the case. The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised. As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 170 :

‘ ... parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.’

45. There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity. The mother was best left to care for the child, certainly when the child was young. The father was best left to provide financial support and to exercise rights of guardianship. As for his contact with the child, visitation was deemed sufficient. Today, such sexist views are obsolete.

46. Social imperatives change. When they are important and lasting, the common law can, and should, keep pace with that change.

47. It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.”

(emphasis supplied)

35.  Mr Marwah for F submitted that false allegations of abuse by one parent against the other are themselves harmful to children. As explained by Ryder LJ in W (A Child) [2014] EWCA Civ 772 at §19:

“Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”

36.  The harm to children from such allegations was also described by Keehan J in TB v DB [2013] EWHC 2275 (Fam) at §9:

“If I just put that to one side for a moment, the matters I found yesterday against the mother, particularly involving as extensively as she did D in some of the most serious allegations that can be made against a father and against a family member (which I found to be part of a sustained campaign against the father enjoying a full and unbroken relationship with his child) are extremely serious findings. If they were to be repeated in whatever form in the future they would undoubtedly and increasingly cause serious emotional and psychological harm to the child.”

37.  Mr Marwah for F further submitted that where a parent is embarked on a process of alienating a child from the other parent, the court must act resolutely and with diligence, as explained by Jackson LJ in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 at §13:

“13. In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent's right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.”

Witnesses

38.  Apart from the parties themselves, the Court heard from the following 5 witnesses over 5 days of trial:

i.     Ms. Cheng Wai-ling (SWO, “Ms. Cheng”)

ii.    Ms. Poon Suet-ki (SWO, “Ms. Poon”)

iii.   Ms. Noeme Palabrica (M’s domestic helper, “Noeme”)

iv.   Ms. Chan So Wah (M’s mother)

v.    Mr. Ho Bing Wah (M’s father)

2 Social Investigation Reports (“SIRs”) and Clinical Psychologist Report (“CP Report”)

39.  There are two SIRs: the 28 December 2021 report prepared by Ms. Poon, and the 7 October 2022 report by Ms. Cheng.  Both of Ms. Cheng and Ms. Poon gave oral evidence at the trial.

40.  The CP report dated 17 December 2021 was prepared by the Clinical Psychologist, Dr. Lee Ka-yee.  It is a short report focused on a test given to the parents and observations of the parents/child.

41.  At the time of interview by Ms. Poon, F was assigned to work in the Hong Kong International Airport and had a 8-day work schedule, namely from 8 am to 4:31 pm for Day 1 and Day 2; from 2 pm to 10:45 pm for Day 3 and Day 4; from 10:10 pm to 8:30 am for Day 5 and Day 6 and day off for Day 7 and Day 8.

42.  In the SIR dated 28 December 2021, Ms. Poon stated that the parent-child observation reflected that Cazzie was closely bonded to both of her parents and her relationship with both parents was intimate and spontaneous.  She recommended joint custody to the parties, care and control to M with defined access to F including day access, indirect video access and staying access from 10 am on any one day excluding the 5^th, 6^th and 7^th day to 7 pm on the following day during the Chinese New Year, Easter, Summer and Christmas holidays when Cazzie has reached the age of 3.

43.  In the SIR dated 7 October 2022, Ms. Cheng stated that F was still assigned to work in the Hong Kong International Airport with the same 8-day work schedule.  F confirmed with Ms. Cheng that the original Filipino maid was dismissed in December 2021 and new Filipino maid would be available to report duty in November 2022. Therefore, Ms. Cheng did not have the opportunity to interview the new Filipino maid.

44.  Ms. Cheng stated that both of F and M were well-educated, committed and affectionate parents.  She made the same recommendations of joint custody, care and control to M with defined access to F including day access, indirect video access and staying access from 10 am to 7 pm on the following day during the Chinese New Year, Easter, Summer and Christmas holidays, and in the presence of the paternal grandmother and domestic helper during staying access.

45.  Mr Marwah for F submitted that the SIRs do not contain any assessment of whether F’s concerns are valid, and whether M has any insight and willingness to change her behaviour, and the impact on Cazzie if M’s behaviour continues. The SIRs were made without sufficient analysis of the risk of harm to Cazzie and they did not have the benefit of any findings of fact made after trial. No weight should be put on the recommendations in either report.

46.  In my view, Mr Marwah’s criticisms against Ms. Cheng and Ms. Poon are not fair.  Both of them had done a lot of investigations and interviews with many people apart from the parties themselves.  It is understandable that it is always not easy for them to make any assessments or findings as to the parties’ allegations against each other in the SIRs.

47.  It is trite that social welfare officer is “ears” and “eyes” of the court.  I disagree with Mr Marwah’s submission that no weight should be put on the recommendations in either report.

Factual disputes

48.  Mr Marwah for F submitted that M has a clear pattern of continually making false and exaggerated accusations against F and spent a great length for at least 15 pages in his closing submission analysing the incidents on 15 March 2021, 3 April 2021, 7 August 2022, 16 November 2022, “SD Card” Allegation, Pornography Allegation, Masturbation Allegation, Walking in during Shower Allegation, “Downloading Messages” Allegation and various trivial allegations (pre and post separation).

49.  I will carefully consider and take into account of Mr Marwah’s submissions but as submitted by him, some of the allegations are trivial. Hence, it is only necessary for the court to make findings of facts for some important but not all of these incidents or allegations.  In assessing the allegations, I should bear in mind that the welfare of Cazzie is always paramount.

3 April 2021 Allegation

50.  F contended that he did not “push over” M in the early hours of 3 April 2021. M’s allegation is absurd and an attempt to frame him.

51.  M accepted that at the trial in the [Court (action no)] on [date], she gave evidence on oath that she was not assaulted on 3 April 2021, which contradicts her earlier evidence in the family proceedings.  However, she explained that as she did not want Cazzie’s father to become a criminal, her evidence was therefore changed at the trial.  On the other hand, F did not explain why despite the change of M’s evidence, the magistracy eventually imposed, and he accepted, binding over of $1,500 for 18 months against him.

52.  In my view, M’s allegation of “push over” by F on 3 April 2021 is not entirely without merit and her explanation as to her change of evidence before the magistracy is not wholly unreasonable.

M’s abduction of Cazzie on 3 April 2021

53.  Mr Marwah for F contended that M’s abducting Cazzie from the FMH in April 2021 and cutting off access with F are wholly inexcusable.

54.  M said that as early as in March 2021, F had already planned to kick her out of the FMH.  She produced extract of the Whatsapp messages[5] between F and Charlotte, with whom M alleged F had extra marital affairs, as follows:

“Charlotte: 你期唔期待同我一齊生活呀？有無幻想過會係點？

F: 期待，但係唔洗幻想，同你生活過，所以更加想同快D一齊生活，已經知道係一件開心嘅事

Charlotte:我都好期待，好期待你切生果我食，同埋抱我入房，同埋鬧我坐地下…….

F: E ar 講起都開心死，將來就係而家嘅勤力….

F: 係呀，唔使費咁多唇舌，同埋上次趕佢走好正確，雖然都好似搞到好煩，但起碼佢從果時就知道我唔係同佢講笑，真係同佢硬碰，唔會好似以前咁鬼怕咗佢，好彩有你背後叫我要做得絕d，我而家先領悟到，對住佢係要狠過佢，佢先驚…

Charlotte: 總之就係叫佢盡快搬走完…

唔需要，你可以照cut但唔洗同佢講，….”

55.  Based on the above conversations, I accept that F did have affairs with Charlotte and had planned to kick M out of the FMH. Needless to say, their relationship had been deteriorating as early as in December 2020 and had been entirely broken down at least since March 2021. Leaving aside the alleged assault by F on 3 April 2021, the moving out of M from the FMH is unavoidable.

Pornography Allegation

56.  M alleged that F did not respect females as she found pornographic photographs in F’s computer.

57.  F pointed out in his oral evidence given at the trial that these photos were sent by friends to different WhatsApp groups, and they were not deliberately stored by him but automatically downloaded into his phone and uploaded into his computer.

58.  I accept that M’s allegation has very little relevance to the welfare of Cazzie.

7 August 2022 Allegation

59.  Mr Marwah for F submitted that W not only (i) exaggerated a simple bruise on Cazzie’s leg into an allegation of child abuse, she also (ii) brought her to hospital in the middle of the night on 7 August 2022, (iii) caused there to be a social welfare investigation, (iv) reported the matter to police, and (v) wrote to Court to seek an order to suspend access.

60.  In para. 13 of the SIR dated 7 October 2022, Ms. Cheng had investigated the matter and stated that: “the bruise on Cazzie’s right anterior knee was considered minor and no concrete and substantiated evidence could be collected to ascertain the incident as a non-accidental injury, the nature of the suspected maltreatment allegation was considered not established.”

61.  I accept the conclusion made by Ms. Cheng in this SIR.  I do think that M was over-reacted by the minor injury to Cazzie but I do not think that M’s actions were clearly motivated by her desire to cut off access between Cazzie and F.

M’s Obstruction of Access

62.  Mr Marwah for F submitted that M has tried to reduce and eliminate access with F:

i.     M cut off Cazzie’s access altogether after 3 April 2021.

ii.    M initially agreed to only supervised access in her Form J.

iii.   After access was ordered on 21 June 2021, M immediately applied to reduce it by her summons 16 July 2021.

iv.   M makes video access as difficult as possible, refusing to use a mobile phone and insisting that it must take place via laptop.

v.    After the CDR order of 19 April 2022, M unilaterally reduced day access to one day per week and refused to implement staying access as ordered.

vi.   M wrote to the Court on 9 August 2022 seeking to eliminate access altogether.

vii.  M’s Statement of Proposals dated 16 November 2022 sought to eliminate overnight access.

viii. M restricted access before the part-heard trial and her summons of 3 April 2023 (“M’s DV Summons”) again sought to eliminate overnight access.

63.  Even though it may be the intention of M to reduce access to F, this court with the assistance of the recommendations in the 2 SIRs would determine the appropriate defined access arrangements in the circumstances.

64.  As per para. 5 of the Order made by me on 21 July 2021, the parties do jointly appoint a parenting co-ordinator with costs to be shared equally.  From the evidence given by the parties and in the SIRs, it seems to me that the parties have failed to comply with this Order.  In view of the highly conflicting situation in the present case, it is in the best interest of Cazzie for the appointment of the parenting co-ordinator.  If necessary, penal notice for contempt of court can be endorsed and a supervision order will be made by the court so that the SWO will monitor the parties’ compliance with the Order.

M’s Lack of Insight

65.  Mr Marwah for F submitted that M has shown absolutely no insight, and it is highly likely that M’s patterns of behaviour will continue.

66.  This court has directed the parties to attend co-parenting courses for not less than 10 hours as per the orders dated 21 June 2021 and 14 October 2022.  As the parties had complied with the direction, I believe that M should have understood the importance of maintaining the father-daughter bonding and relationship for a child’s self-esteem.

Primary carer of Cazzie after her birth

67.  M said that she had been breast feeding Cazzie since her birth until her 1 year old and was Cazzie’s primary carer since then.  As stated in para. 39 of the SIR dated 7 October 2022, Noeme also told Ms. Cheng that M was the main caregiver of Cazzie.

68.  Although F also claimed to be one of the primary carer of Cazzie, due to his shift work schedule, I accept that it was M who mainly took care of Cazzie with assistance of both of F and Noeme before the moving of M from the FMH.

Parties’ working schedule

69.  It is not contested by F that M is allowed by her employer to work from home and that she has regular day off on public holidays, Saturday and Sunday.  I accept that she has very flexible time in managing her works and her personal matters, especially on public holidays, Saturday and Sunday, she can take care of Cazzie during the non-school days.    

70.  Presently, F had a 8-day work schedule, namely from 8 am to 4:31 pm for Day 1 and Day 2; from 2 pm to 10:45 pm for Day 3 and Day 4; from 10:10 pm to 8:30 am for Day 5 and Day 6 and day off for Day 7 and Day 8.  In case Day 1 and Day 2 fall on school days, F has to rely on his mother or the newly hired domestic helper to look after Cazzie, including sending her to and picking her up from school.  For Day 5 and Day 6, when F is off duty after overnight work until early morning, it is likely necessary for him to sleep or take rest for a number of hours when he is back home in early morning.  Day 7 and Day 8 when F is off duty but may not be non-school days.  That is to say, when F is on duty, Cazzie may not have go to school and she has to be looked after by F’s maid or his mother or when F is off duty, Cazzie may have to go to school. 

71.  In the long run, there may be more activities to be arranged for Cazzie after school or on Saturday and Sunday.  In my view, the 8-day work schedule will make F himself more difficult to take care of Cazzie and he has to heavily rely on the help of the other people.

72.  In short, I consider that in view of M’s stable working schedule, she will be able to spend more time in taking care of Cazzie than F. Time spending by a parent to a young child is always very important.  Apart from M’s extended family, Noeme has been helping M for several years and will continue to assist M in looking after Cazzie.  F never made any complaints against Noeme.  I am of the view that in the best interest of Cazzie, it is better to rely on the assistance of Noeme rather than the domestic helper newly hired by F. 

73.  Further, SWO Ms. Cheng did not have the chance to interview the domestic helper newly hired by F when she prepared the SIR dated 7 October 2022.

74.  Although Ms. Cheng did interview F’s mother, I do not think that F’s mother can be regarded as one of the primary carers of Cazzie.

Conclusion

75.  Having carefully considered all the relevant factors and circumstances, I do not accept F’s proposal of sole care and control or shared care and control in the alternative but accept the recommendations in the 2 SIRs.  In the best interest of Cazzie, I make an order that parties do have joint custody, M do have sole care and control of Cazzie with defined access to F.

76.  For the defined access to F, I would largely adopt the recommendations made by Ms Cheng in the SIR dated 22 October 2022 with some modifications.  I fully understand that the current situation may not be the same as that in October 2022.  It is always possible for F’s 8-day work schedule to be changed.  Therefore, a supervision order for monitoring the access is necessary.

77.  I understand that M opposes staying access until Cazzie is 6.  I disagree with M’s opposition and accept the recommendation made by Ms. Cheng in the SIR provided that either F’s mother or the domestic helper hired by F is present during staying access.

78.  I now make the order for the defined access as follows:

i.     F do have day access during the school day every Wednesday from 10 am to 1:15 pm (if Cazzie has afternoon class) or from 12 noon to 5pm (if Cazzie has morning class) 10 January 2024, provided that F is off duty or on leave;

ii.    F do have day access every alternate Saturday starting from 13 January 2024 from 10 am to 7 pm, provided that F is off duty or on leave;

iii.   F do have day access every alternate Sunday starting from 21 January 2024 from 10 am to 7 pm, provided that F is off duty or on leave;

iv.   During the long school holidays such as the Chinese New Year, Easter and Christmas, F do have 2 additional day access per week from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

v.    During the Summer Vacation, F do have 3 additional day access per week from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

vi.   On single school holidays that fall between Mondays and Fridays, parties shall share equally and F do have day access from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

vii.  F do have staying access per week from 10 am to 7 pm the following day during the long school holidays such as the Chinese New Year, Easter and Christmas, provided that either F’s mother or the domestic helper hired by F is present during the staying access; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

viii. F do have 3 days 2 nights staying access per week from 10 am on the 1^st day to 7 pm on the 3^rd day during the Summer Vacation, provided that either F’s mother or the domestic helper hired by F is present during the staying access; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

ix.   For the avoidance of doubt, if F selects staying access during the long school holidays, there be no additional day access as per para. (iv) and (v) above;

x.    M do have video access to Cazzie during staying access with F for 15 minutes every day from 8:30 pm to 9 pm;

xi.   F do have video access to Cazzie for 15 minutes twice a week from 8:30 pm to 9 pm; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

xii.  All handovers shall be at MTR station in Tseung Kwan O district or such other place mutually agreed by the parties.

79.  I further order that:

i.     supervision order for 12 months be granted;

ii.    progress report be filed one month before the expiry of the supervision order;

iii.   the parties do jointly appoint a parenting co-ordinator with costs to be shared equally in accordance with para. 5 of the Order made on 21 July 2021;

iv.   F be allowed to approach the school of Cazzie for the purpose of obtaining Cazzie’s information in school and school holidays;

v.    F shall immediately provide M and SWO with his new roster if his present 8-day work schedule changes;

vi.   Penal notice be endorsed and personal service be dispensed with.

Costs

80.  Mr Marwah for F argued that as M’s conducts in pursuing these children proceedings were utterly unreasonable, she shall bear costs of the trial, M’s variation of access summons dated 16 July 2021  and M’s DV summons, including all costs reserved, with certificate for counsel.

81.  For M’s DV summons, she agreed to withdraw the application on the basis of the mutual undertakings given on 12 June 2023 and the court did not make any findings as to her allegations against F.  I think that the fair costs order shall be no order as to costs.

82.  As to the question of costs relating to the children, the court usually makes no order as to costs unless in a very exceptional circumstances.  Although I reject the open proposal of F regarding care and control and the open proposal of M regarding F’s defined access, I do not see that the present case is exceptional.  I thus exercise my discretion to make an order nisi that there be no order as to costs regarding the children matters, M’s variation of access summons dated 16 July 2021 and M’s DV summons, including all costs reserved in relation thereto, which shall become absolute unless any of the parties apply for variation with supporting affirmation by summons within 14 days.  F’s own costs from 6 March 2023 onwards be taxed in accordance with the Legal Aid Regulations.

83.  Last but not least, M may approach the translation office of the District Court for interpreting this judgment to her, if necessary.