NLT v. LYKJ

FCMC 8680/ 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8680 OF 2012

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JUDGMENT
(Access arrangements)

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Introduction

1.  This trial was originally set down for 8 days to deal with the parties cross applications in relation to the arrangements for the children of the family – an elder daughter PY who was born on the XX November 2004 and is now nearly 12 years old and a younger son P who was born on the XX April 2007 and is now 9 years old. In the Respondent father’s summons dated the 14 July 2015 he sought sole custody and care and control of the children with defined access to the mother from after school on Fridays to Saturday at 9 pm. In the Petitioner mother’s summons of the same date she likewise sought sole custody and care and control of the children with defined access to the father on an alternate week basis namely from Friday at 6 pm to Saturday at 12 noon in the first week and from Friday at 6 pm to Sunday at 3 pm in the second week. Both parties made other proposals in relation to the holidays, single public holidays and other special days.

2.  Thankfully the parties were able to reach consensus on most of the outstanding issues and by the time the matter came on for trial they had agreed, albeit late in the day, that there should be joint custody of the children with care and control to the mother. The outstanding issues were, in the wider scheme of things quite small. In essence the father was asking for an order that the existing shared care regime remain in place whereby the children are with him from 6 pm on Thursday to either 11 am on Saturday (the short week) or 3 pm on Sunday (the long week). This is in accordance with the court order dated the 14 October 2014. The mother for her part asked that Thursday access be dispensed with and that access take place from 6 pm on Friday to 3 pm on Saturday (the short week) and from 6 pm on Friday to 3 pm on Sunday (the long week). There was also a further minor issue with respect to pick-ups and drop offs with the father asking that these be shared. The mother for her part asked that the father be responsible for all pickups and drop offs.

3.  At the end of the trial I raised a number of issues concerning inter alia the exam periods for the children and the arrangements for those (the mother had originally asked that all access be suspended during the exam periods). I was particularly concerned given the length of the exam periods and the fact that the children’s exam periods did not appear to coincide. I also queried whether or not there should be any alteration to the arrangements in place for the public holidays and other school holidays. The parties were in agreement that they did not wish either of those orders to be varied in any way. Consequently it is agreed that the following arrangements shall remain in place as set out in the court order dated the 11 April 2014 namely that:

3.   For public holidays which fall outside the school term dates and which are also not on Saturdays or Sundays (“Public Holidays”), the Respondent shall have access to the Children on such Public Holidays commencing from 6^th May 2014, in alternate manners as follows and the Respondent’s access for such alternate Public Holidays continues for the years to come:-

(a) 1^st May 2014 (Labour Day)─The Respondent will not have access to the Children;

(b) 6^th May 2014 (Buddha’s day)─The Respondent has access to the Children;

(c) 2^nd June 2014 (Tuen Ng Festival)─The Respondent will not have access to the Children;

(d) 1^st July 2014 (HKSAR establishment day)─The Respondent has access to the Children;

(e) 9^th September 2014 (the day after Mid-Autumn Festival)─The Respondent will not have access to the Children;

(f) 1^st October 2014 (National Day)─the Respondent has access to the Children;

(g) 2^nd October 2014 (Chung Yeung Festival) ─The Respondent will not have access to the Children.

4.   Without prejudice to and overriding the arrangements as stated in paragraphs 1 to 3 above, for the respective birthday of the parties and the Children, the Father’s Day and Mother’s Day, it is agreed that:

(a) Each party shall have access to the Children on each party’s respective birthday.

(b) The Petitioner will have access to the Children on Mother’s Days.

(c) The Respondent will have access to the Children on Father’s Days.

(d) Each party shall have access to the Children on the Children’s respective birthdays in alternative years in the following manners:-

(i) the Petitioner shall have access to the Son on his birthday in even years, starting from 2014;

(ii) the Respondent shall have access to the Daughter on her birthday in even years, starting from 2014;

(iii) The Respondent shall have access to the Son on his birthday in odd years, starting from 2015;

(iv) The Petitioner shall have access to the Daughter on her birthday in odd years, starting from 2015.

4.  There was though some disagreement between the parties in the event that there was a clash of dates, with the mother proposing that in that event the day be split 50:50. The father for his part was of the view that the wording of the original order allowed for this eventuality. For the avoidance of doubt I accept that in the event that there is a clash of dates that the access arrangements as set out in paragraph 4 above for birthdays and Mother’s Day and Father’s Day shall take precedence over the access arrangements proposed in paragraphs 2 and 3 regarding the split of the school holidays and the public holidays.

5.  Further orders 6, 7 and 11 shall also remain in place namely that:

6. Both parties can attend all school activities of each child, irrespective whether the activities fall on an access day of the other party.  It is also agreed that both parties shall not forbid the Children from attending the said school activities.

7. During the defined access, the parties shall not stop the Children from communicating to the other parent; whether by telephone or emails or otherwise whatsoever.

11. For the avoidance of doubt,

(a)  a full day for access during school term break is from 9:00 a.m. to 9:00 p.m. and a half day for access is from 9:00 am to 2:00 p.m. or from 2:00 p.m. to 9:00 p.m.; and

(b)  for implementation of paragraph 4 above, a day of access during school term dates is from 6:00 p.m. to 9:00 p.m.

6.  In addition, the parties’ acknowledgements and agreements as set out in the preamble to the Court order dated the 18 March 2015 and the further direction at the end of the order shall also remain in place as follows:

  AND UPON both parties acknowledging and agreeing that there shall be a setting of a dedicated email account in which the Petitioner shall report to the Respondent on every Thursday evening with the homework or revision undertaken by her during her time with the Children and the Respondent shall report to the Petitioner either on Saturday or Sunday with the homework or revision undertaken by him during his time with the Children;

IT IS FURTHER DIRECTED THAT:-

(6)  For the avoidance of doubt, a copy of all school reports and achievement certificates kept by the Respondent shall be sent to the Petitioner via the dedicated email account with scan copies referred to above.

7.  In so far as the exam periods are concerned the mother simply reiterated at the end of the trial that she wished to have the Thursday’s and in that event there need not be any alteration to the access schedule during the exam periods. The father for his part proposed that in the event that there was an exam on a Friday that he would forgo Thursday night access and if there was an exam on a Monday he would forgo the Sunday access – if indeed that was applicable. In each event he asked for make up access the following week in that the following week would then be a long weekend – i.e. from Thursday at 6 pm to Sunday at 3 pm.

8.  Ms Allison for the father summarized the parties’ respective positions in her closing submission thus:

7.   The Mother claimed that her position at trial regarding access was formulated based on PY’s letter dated 31^st August 2016 to the Official Solicitor, following a telephone call from PY to the OS on 30^th August 2016.

8.   The Father’s stance at trial was for the status quo to remain the same, save for exam week when he agreed that certain days of access could be suspended but that there had to be make up access on the shorter weekend that immediately followed.  The Father was agreeable to have Sunday access end at 2:30 pm if the Mother required 30 minutes to pick up the Children from Homantin in order to return home by 3:00 pm.

9.   The Mother pressed that Father should do all pick up and drop off at the beginning and end of each access because financial constraints meant that she could not afford to take the Children home by taxi.  The Father’s position on the other hand, was that since he no longer had a car, and he had no intention of getting a car due to financial concerns, that the parties should share the task of picking up and dropping off the children equally.

9.  In so far as pickups and drop offs are concerned it later transpired that most of the mother’s concerns related to the cost of a taxi fare from the father’s home in Homantin to the drop off point on Hong Kong side. In the spirit of compromise the father agreed to pay for the mother’s taxi fare back to Hong Kong side with the children. He proposed a figure of HK$530 per month and to round up the mother’s maintenance to HK$59,000 per month. The mother sought HK$160 per trip but accepted that it would be more sensible for this sum to be added to her maintenance as opposed to seeking reimbursement from the father on each occasion. In order to simplify matters therefore I have therefore decided to accept the father’s proposal that he pay the mother an additional sum of HK$530 per month to cover the taxi fares. This is on the premise that the mother will take a taxi back to Hong Kong side after picking the children up on either Saturday or Sunday.

The law in Hong Kong

10.  The general principles governing applications relating to children’s issues are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which states that the court:

(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 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;

11.  It almost goes without saying that it is generally accepted that it is important for children to have an ongoing relationship with both of their parents post divorce. On occasion this can be hard to achieve given the high levels of animosity and conflict that sometimes exist between parties post separation and divorce, as here. It is of note that the children in this case appear to have a close and loving relationship with both parents and to be bonded to each of them.

12.  Ms Allison in her closing submission referred to the welfare check list. Although not mandatory the Family Court has on occasion been assisted by a draft checklist of factors based on s 1(3) of the Children Act 1989 and s 68F (2) of the Family Law Act 1975 in Australia as set out in the Law Reform Commission’s Report on Custody and Access as follows:

(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)   (a broader formulation along the lines of) 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 is relevant.

13.  In this case some of these factors are extremely important and feature very heavily and others are less so. I will refer to them as they appear in the discussion to follow. For example there is a very live issue concerning the wishes and feelings of the children and how to properly ascertain those wishes and also the appropriate weight to be attached to them in the circumstances. There is also an argument with respect to each parent’s ability to meet the children’s needs – particularly their academic needs. I further accept that subsection (d) is of particular import – i.e. the likely effect on the children of changing their present circumstances given that what is being proposed is that staying access be reduced during term time from 5 out of every 14 days to 3 out of every 14 days. I further accept that arguments with respect to “status quo” will also be relevant.  

The issues

14.  The issues then are these:

How should the care of the children be split going forward? In particular should Thursday night access be dispensed with? 

In addition should any further orders be made in relation to other miscellaneous issues including the pickups and drop offs and arrangements for exam periods? 

Background

15.  In my judgment on the defended suit dated the 25 October 2013 I commented inter alia on the background of this case as follows:

2.   It would appear from both parties’ testimony that this marriage has been in considerable difficulty for a very long period of time.  The wife makes a number of allegations against the husband, most of which he denies.  What is not in dispute, however, is that the wife moved out of the matrimonial home in May 2009 after a very heated argument which also involved the elder child.  Shortly thereafter, the wife discovered incriminating evidence which implied that the husband was having an affair. The husband accepts that to be the case.  He says that he had a relationship outside the marriage sometime between 2007 and 2008.  The wife discovered this in June 2009.  Both parties agree that their sexual relationship came to an end from May 2009 when the wife moved out. 

3.   It seems that the wife’s father then intervened in an informal way and that he acted as a middleman, helping the parties to resolve disputes as and when they arose.  It was because of this that the parties agreed, rather strangely in the circumstances, that the wife’s moving out in May 2009 would not constitute a separation for legal purposes and they entered into an agreement to that effect.  It is not clear whether the parties were legally represented at that time.

4.   Two years later in May 2011, the wife moved back into the matrimonial home but it does not seem that this was in order to effect reconciliation.  Rather, it seems to be accepted that there was an arrangement between the two whereby the husband supported her financially in part and the wife agreed to take care of the children’s homework.  The husband in turn cooked and undertook most of the household chores.  To all intents and purposes, it seems that the parties were simply flat sharing and dividing up the domestic responsibilities between the two of them.  There is also some dispute regarding the extent to which they interacted socially or as a family. However, their marital relationship did not recommence and that much is clear.

Background

6.   The wife trained as a dancer at X and her father is an academic.  She is now 36 years of age.  The husband for his part says he has had a number of occupations.  It seems that he was unemployed for a while and that he was also engaged previously as a real estate agent.  He says that he invests in stocks and shares on his own account and it seems that he also previously ran a small taxi company.  He is now 47 years of age.

16.  Of note, in the context of the present dispute is the fact that I accept that the children were in the primary care of the father for about 2 years from May 2009, when the mother moved out of the former matrimonial home for the first time, until about May 2011. The children would have been about 2 and 4 ½ years old respectively when the mother first left. There is a lot of dispute between the parties but in essence each party’s position is as summarized by Ms Allison in her opening submission when she said that:

15.   The evidence as to the Mother’s involvement with the Children during the 2 year period of May 2009 and May 2011, differs between the parties.  On the Mother’s case, she would help the Children with their homework every day from after school until dinner time. [A1/21]  This is strenuously denied by the Father who alleges that the times when the Mother met the Children would vary from meet with the Children 2 to 3 times a month, to having overnight staying access during Summer 2010 [A1/35, 55].  There were no defined access arrangements for the Mother to see the Children; the Mother was afforded the flexibility of seeing the Children as little or as much as she wished.

16.   From May 2011 until mid-2013, the parties appear to have co-existed in the former matrimonial home.  On the Mother’s case, there was a division of labour in the house between the parents with the Mother focused on assisting the Children with their homework and the Father would manage the housework.  This is disputed by the Father; on his case, the Mother spent very little time taking care of the Children as she was not home often and when she was home, she was in her bedroom.  It is the Father’s case that although the Mother returned to the family home, he continued as the predominate carer of the Children.

17.   On the Father’s evidence, the situation at home took a turn for the worse from the summer of 2013 [A1/35].  That year, the Mother for the first time organised various activities for the Children over the summer holiday without any prior discussion with Father and then proceeded to organise extra-curricular activities on the weekend which led to the Father being deprived of time with the Children.

The litigation to date in relation to the children

17.  Given this background it is perhaps not surprising that there have been a number of orders made with respect to the arrangements for the children. Initially the court made an order splitting the children’s time between the parents whilst the parties were still living under the same roof. This order is dated the 27 January 2014. This states inter alia as follows:

4.   The parties shall have the care of the Children during the weekend by alternating Saturday and Sunday as follows:-

a. with effect from Saturday 15^th February, the Respondent [father] shall have alternate Saturday so that the Respondent shall have Saturday 15^th February and the Petitioner [mother] shall have Saturday 22^nd February and so on and so forth;

b. with effect from Sunday 16^th February, the Petitioner shall have Sunday 16^th February and the Respondent shall have Sunday 23^rd February and so on and so forth;

5.   It is directed that the Petitioner shall continue to be responsible for the Children’s homework on all days save for Thursday and Friday.  All school books and school notes to be placed in a common area of the matrimonial home;

6.   The Petitioner shall have dinner with the two children of the family and shall be responsible for getting them up, putting them to bed and picking them up from school on every Monday, Tuesday and Wednesday;

7.   The Respondent shall have dinner with the two children of the family and shall be responsible for getting them up, putting them to bed and picking them up from school on every Thursday and Friday;

18.  Thus the care of the children was shared with each parent having the care of the children for one day of the weekend and each being responsible for the children, including making sure that all homework was completed for part of the week. The mother was responsible for the children for three out of the five days and the father for the remaining two.

19.  On the 11 April 2014 the parties reached a further agreement which set out in detail how the children’s time should be shared between them. This included inter alia the following:

1. During the school terms, the Respondent [father] do have access to the Children as follows:

(a) One week from Thursday 6:00 p.m. to Friday 9:00 p.m. (“the First Week arrangement”).

(b) The next week from Thursday 6:00 p.m. to Sunday 5:00 p.m. (“the Second Week arrangement”)

(c) The above would be in alternate week arrangement and the Respondent shall be responsible for picking up the Children and returning the Children at the stated time at Midlevels, Hong Kong (“the Location”) for the purpose of the above access.

It was on this premise that the mother moved out of the matrimonial home with the two children and the couple began to live separately and apart from each other.  

20.  On the 14 October 2014 this arrangement was amended following the 2^nd Children’s Dispute Resolution hearing as follows:

1. paragraphs 1 (a) and (b) of the Order made by Her Honour Judge Melloy dated 11^th April 2014 be varied to read as follows:-

(a) one week from Thursday 6:00 p.m. to Saturday 11:00 a.m. (after the English tutorial lesson) (“the First Week Arrangement”);

(b) the next week from Thursday 6:00 p.m. to Sunday 3:00 p.m. (“the Second Week Arrangement”);

This order has been in place for nearly two years with the children spending from Thursday at 6 pm with the father on an alternate week basis to either Saturday at 11 am or Sunday at 3 pm. It was further agreed that the children would have English tuition at the father’s home on Saturday mornings.  

Each party’s respective cases

The mother’s case

21.  The mother says that she is proceeding with her application because it is what the children want – particularly the daughter. She says that because both children attend prestigious schools that they need to spend a significant amount of time on their studies. The daughter in particular has just been promoted to a top band senior school for girls. She is said to want to improve her grades and is worried about keeping up if Thursday night access is to continue. The mother says that she is the parent who is more responsible for the children’s homework and that the children will not be able to prepare for exams and tests appropriately if the Thursday night arrangement is to continue. She complains about lack of academic supervision at the father’s home. She also says that the children are much inconvenienced by the arrangement and that they have to pack up a lot of stuff and take it with them to school on Thursday mornings. She says that PY in particular has a tendency to forget things and that this can cause a lot of stress. She also says that the children do not have sufficient time to rest on Thursdays and that the travel time is long. All in all she argues that it is not in the children’s best interests to continue with the Thursday night arrangement. She makes no other alternative suggestions for additional access and wishes to retain some of the weekends so that she has an opportunity to also have some time to relax and have fun with them.    

The father’s case

22.  The father is very concerned that his role as a father is being further eroded. He made the point during his oral testimony that he wishes the mother to have a full role in the children’s lives and similarly asks that the same courtesy to be extended to him. He disputes most of the mother’s allegations. He wishes to retain Thursday nights and says that the current arrangement works well. He also wishes to continue to be actively involved in all aspects of the children’s lives going forward.

The Recommendations made in the reports

The Social Welfare Reports

23.  There have been three reports filed, the first dated the 24 February 2014, the second dated the 29 June 2015 and the third dated the 28 July 2016. Social Welfare Reports are generally regarded as the “ears and eyes of the court” and they provide a very valuable function in that respect. However the recommendations made are not binding on the court. If the court does not agree with the recommendations made then reasons should be given. In this instance given that the main issues had been agreed prior to the trial the Social Welfare officer was in some difficulty in assisting with respect to the “Thursday night issue”. However he did confirm both in his last report and during the trial that the children had adjusted well and that the status quo should be maintained. He stood by this notwithstanding fairly vigorous cross examination by the mother’s counsel. For example he said that there was no evidence that the present arrangement had caused any study problem for either child and he confirmed that he had spoken to the children’s teachers and that they had likewise not identified any problem. When it was put to him that the children had to carry a lot of stuff with them on Thursday’s he replied that this was a common scenario in Hong Kong. He also confirmed that the children had not mentioned to him that they did not wish to continue with Thursday night access. He said that he was aware that the mother felt strongly about this but that he did not necessarily feel that this was a concern that was shared by the children. In particular he noted that PY appeared to be simply supporting her mother. Generally he confirmed that the children were doing well, that their physical needs were being met and they appeared to be closely bonded with both parents. He confirmed that the children both attended prestigious schools. In so far as the children forgetting things he confirmed that the daughter seemed to forget some of her things from time to time but that this was not a problem shared by the son nor was it something that had been flagged up as a concern by either school.

24.  Ultimately the Social Welfare Officer stood by the recommendation made in all three reports namely that there should be no change to the existing access arrangement which in his view appeared to be working well. As will be seem I tend to agree with his observations.   

The Clinical Psychologist Report

25.  There was one Clinical Psychologist report dated the 11 November 2015. He concluded during his short oral testimony that he did not think that he was really in a position to comment on the access arrangements.

The official Solicitors Reports   

26.  The official solicitor was appointed in part because the court had become increasingly concerned about the level of conflict in this case and the extent to which the children might be drawn into the litigation inappropriately.

27.  Ms Allison helpfully attached to her closing submission the excerpt from Rayden which outlines the role of the Official Solicitor and although the arrangement is a little different in Hong Kong given the fact that the Family Court is not concerned with public law matters, nevertheless this section bears some repeating as follows:

The Official Solicitor as guardian ad litem of the child

37.94   As guardian ad litem of the child the Official Solicitor does not have parental responsibility for the child nor is he a welfare officer.  He represents the child in the conduct of the suit and in his capacity as a solicitor.  He does not stand in loco parentis to the child, nor do decisions relating to the child rest on his unfettered discretion.  He is, however, more than a mere guardian ad litem; he is at once an amicus curiae, an independent solicitor acting for the child, an investigator, an adviser, and sometimes a supervisor.  Formerly he only acted on behalf of children who are the subject of existing proceedings but this is no longer the case.  He will carry out his own inquiries, instruct independent expert witnesses and take whatever steps he considers necessary to protect the interests of the minor and will interview the minor, in private, in all cases where he or she is capable of expressing a view.  It is his function to place before the court, generally in the form of a report, the evidence which he considers to be material on behalf of the child and, where necessary, to instruct counsel to present the case at the hearing. 

28.  In this instance the Official solicitor had seen the children and the parents on a number of occasions and had submitted three reports including one after the conclusion of the trial. She consistently maintained that the Thursday night access should be dispensed with and did not propose any other additional access for the father save inter alia for telephone and skype access.  

29.  In her last report dated the 23 September 2016 she concluded that:

9. In considering matters relating to children, the best interests of the children shall be the paramount consideration.  The Official Solicitor is of the view that it is in the best interests of the children to suspend Thursday access so that the children can have sufficient time to rest, to concentrate on their schoolwork, to attend extra-curricular activities and to conduct social activities.

10. Given the all along close relationship between the Father and the children, the bonding between them would be not undermined by the suspension of Thursday access.  The Clinical Psychologist has confirmed that in his evidence. Alternatively, the Thursday staying access can be substituted by other ways of access e.g. by text, video calls or phone calls.

11. Compared with PY, it seems that Thursday access has caused less inconvenience and worry to P.  However, as P has indicated his wish to follow PY, it is not recommended to split the access.

As will be see I do not share the Official Solicitors views.

30.  In the Official Solicitors second report dated the 8 August 2016 she stated as follows:

8  On 20.6.2016, the official solicitor received a letter from the children requesting me to inform the judge that they wanted the Mother to get sole custody. A copy of the letter with its English translation is annexed.

Meeting with PY and P on 4.7.2016

9. I met the children on 4.7.2016 at the Official Solicitor’s Office.

10. PY said she was asked by the Mother to write me the letter.  She frankly admitted that she did not know what sole custody was.  I therefore provided a brief explanation to the children on the meaning and difference of joint custody and sole custody.  The children were informed that the Mother would have their care and control.  Therefore, irrespective of the outcome of the trial on custody matter, their existing living condition would not change.

11.   Having heard my explanation, PY felt much relieved.  PY hopes that both parents can play equal roles in determining the important matters regarding her upbringing.  She also hopes the Mother not to insist on seeking a sole custody order.  She wants an end of the dispute on custody.  Possibly due to the young age of P, he did not express any view on his matter.

12.   PY said she was reminded by the Mother to tell me about the traffic accident happened in February 2016 whilst the Father was driving the children back to their Homantin residence.  She said the Father’s vehicle crashed the safety island.  She suffered from headaches and P had a nosebleed after the accident. The Father called the Police and they were sent the X Hospital (“the hospital”) by ambulance.  PY said the parents had an argument on whether the children should wait at the A&E Department of the hospital for 5.5 hours for medical examination and treatment.  Fortunately, the children only suffered very minor injuries after medical examination.

13.   Regarding access, PY said she would still on one or two occasions forget to bring books/homework during the overnight staying access on Thursdays.  She does not have any strong view on the change of the overnight staying access during school terms to Fridays.  She is happy with the present access arrangements.  P said he had never forgotten to bring books/homework during the overnight staying access on Thursdays.  He wants to maintain the present access arrangements.

14.   It is observed that despite the breakdown of the parents’ marriage, the children are properly taken care of and are settled down well with the present arrangements.

31.  I was therefore very concerned that the mother may be putting inappropriate pressure on the children and that they needed as far as possible to be shielded from this. I spoke to both parties about my concerns during the course of the litigation. I explained in no uncertain terms that this was not acceptable. Consequently when asked to see the children directly I declined. 

32.  I was therefore astonished to be told at the beginning of the trial that the children had again written to the Official Solicitor on the 31 August 2016 – i.e. shortly before the commencement of the trial and that their views had now changed. This is especially given the fact that those views now seemed to echo those of the mother. I was told by the Official Solicitor in her latest report that:

… The reasons for the change as set out in the children’s letter are: (1) no need to bring their school uniforms, shoes and schoolbags to their father’s home; (2) there may be a school club or school team training; and (3) they need not worry about forgetting to bring their textbooks or homework to school for the week. 

33.  Generally it is clear that the mother was of the view that the children’s stated preferences should be given determinative weight. She said that she herself had no strong feelings about the Thursday night access, but that she was taking this stance because PY had told her that she was worried about the demands of her new school and that it was the daughter who wanted to change the current shared care arrangement. 

34.  As I indicated to both parties during the Children’s Dispute Resolution hearings and at the trial, the views of the children are not determinative. Their views are one aspect of the case that I must take into account when considering the matter overall. It is true that as children get older that their views carry more weight. However, in a case such as this, the stated views of the children must be approached with some degree of caution. This is especially so given the inappropriate way that they appear to have been brought into these proceedings. Further the children should not be put in a position where the onus is on them to “choose” between each of their parents or the stance taken by each of them.

35.  In such circumstances it seems to me that it is virtually impossible for me to attach any weight at all to the children’s so called changed of stance as expressed through the Official solicitor’s latest report.  

How should the care of the children be split going forward? In particular should Thursday night access be dispensed with? 

36.  The argument centres on the following – Homework completion, Lack of time to prepare for exams and other assessments, Inconvenience and the Length of travelling time.

Homework completion

37.  The parties’ spent and inordinate amount of time during the trial talking about homework and the completion of that homework. It is accepted that the children have a lot of homework and that PY’s commitments are going to increase now that she is in senior school. It also appears from the evidence that PY is hard working and concerned about her performance – although this may to some extent simply echo the concerns expressed by her mother. P on the other hand appears to be more academically gifted and to consistently achieve good grades. PY seems to struggle a little in comparison. Nevertheless the parents chose to send her to a top girl’s school where there is a lot of emphasis on academic achievement. The mother also attended the same school, although she left after Grade 5 to pursue her dancing career.

38.  The mother complained that the father was unable to coach or guide the children appropriately, that he didn’t always ensure that homework was completed and she queried his choice of a tutor. Generally I accepted the father’s evidence on this. I am sure that there have been times when homework has not been completed or not to the standard expected by the schools – but generally speaking I accept that the father has put suitable arrangements in place to assist the children with their homework when they are in his care. It seems to me that it is very important for the children to see and spend time with their father and for him to continue to be involved in every aspect of their lives – which includes their schooling, homework and extracurricular activities.

39.  Going forward each parent will be responsible for ensuring that the children complete their homework and other assignments when they are in their care. They may make arrangements for tuition and other extracurricular activities when the children are with them. I should add that I will expect P to attend the Saturday morning sessions at his school and that this may mean that other arrangements will need to be made for pickups on Saturday mornings. 

Lack of time to prepare for exams     

40.  I accept that during the actual exam periods that it may be difficult for the children to go from household to household and during those periods I will suspend the Thursday night access or Sunday access. PY’s exams are in January and June and P’s exams are in February and May. Generally speaking I accept that the children will need to prepare for their exams over time and that both parents should assist in that.

Inconvenience

41.  Again a lot of time was spent during the trial talking about the difficulties with packing up for the Thursday night access, how the children sometimes forgot things (PY in particular), how difficult the father was about this (something that he denied), how much stuff need to be carried from pillar to post etc etc. Generally speaking these issues appeared to me to have been blown out of all proportion, something that was also borne out by the Social Welfare Officer’s observations.

Length of travelling time

42.  The father lives further away from the school than the mother. This necessitates some travel. The father used to drive the children, but he now no longer has a car following a recent car accident. Thus he travels by taxi when with the children. The mother complains that she cannot afford a taxi and made great play of the difficulties caused to both her and the children when attempting to travel by public transport with all of the children’s gear at the end of access. Some progress was made in this respect during the trial and the father agreed to pay for the cost of a taxi back to Hong Kong Island at the end of each access period on either Saturday or Sunday as referenced above.

43.  Consequently paragraph 1 of the court order dated the 8 July 2014 shall be varied to the extent that the father do pay the mother interim maintenance for the two children of the family in the sum of HK$19,007.50 per month per child. The mother’s maintenance pending suit in the sum of HK$20,985 will remain unchanged. In total then the father shall pay the mother the sum of HK$59,000 per month (i.e. (HK$19,007.50 x 2) = HK$38,015 + HK$20,985 = HK$59,000). On that premise the mother shall be responsible for picking up the children on either Saturday or Sunday depending on whether it is a long or a short week and for taking them home or to school by taxi. An acknowledgment/agreement to that effect shall be included in the court order. In so far as Sunday’s are concerned it is further ordered that the pickup time shall be 2:30 pm as opposed to 3 pm.  

Generally

44.  The mother also argued that the children don’t go to bed early enough when they are with the father and that they get tired easily. Although I am sure that the children do get tired easily – again that does not appear to me to be a valid reason to change the access schedule.

45.  Both parents described how they spent their time with the children. Notwithstanding the chronic nature of this litigation and the depth of distrust and ill feeling that now exists between the parties themselves, I have no doubt that they both love their children deeply and that they are both good parents. Both should be allowed to continue to parent their children as fully as possible – especially as they each clearly have different strengths and weaknesses from which the children should in an ideal world be able to benefit from.

Conclusion 

46.  Thus I do not intend to change the present access arrangement save that in the event that either child has an exam on a Friday then access on Thursday for both children shall be dispensed with. In that event access shall take place from Friday at 6 pm to either Saturday or Sunday depending on whether it is a long or short week. In the event that either child has an exam on a Monday then access on Sunday for both children shall be dispensed with and access shall be from 6 pm on Thursday to Saturday at 11 am. It is entirely possible that the children will have exams over a two week period in which case there may be exams on both Friday and Monday. In that event and for the avoidance of doubt access for both children shall be from 6:00 pm on Friday to Saturday at 11 am. In all three scenarios the weekend following the exams shall be a long weekend. I have considered splitting the children so that only the child who has the exams has access suspended but it seems to me that the result may be a logistical nightmare.

In addition should any further orders be made in relation to other miscellaneous issues including the pickups and drop offs and arrangements for exam periods? 

47.  For the avoidance of doubt the father shall be responsible for picking up the children on Thursday evening at 6 pm (or Friday at 6 pm in the event of exams) and the mother shall be responsible for picking them up from the father’s home on either Saturday at 11 am or Sunday at 2:30 pm as appropriate.

48.  In so far as the English tutor on a Saturday morning is concerned, the father indicated that he was not very satisfied with her performance. It is for the father to decide who he employs to assist the children when they are in his care. Likewise it is for the mother to decide who to employ or what classes the children should attend when they are in her care. In that regard I apologise for my misunderstanding during the trial concerning the mother’s enrolment of PY into a Chinese class on Thursday afternoon after school. I accept that the mother was perfectly within her rights to do so given the father’s time with the children does not start until 6 pm.

49.  As indicated above the access shall therefore continue subject to the caveat about exams from Thursday at 6 pm to Saturday at 11 am in week one and from Thursday at 6:00 pm to Sunday at 2:30 pm in week two. In the event that P needs to be at school on Saturday morning then pickup time may need to be amended accordingly. I will give liberty to apply in that respect only.    

Costs

50.  Given that this is a child related matter and notwithstanding some of the concerns expressed by myself in this judgment I will nevertheless make an order nisi to be made absolute in 14 days time that there be no order as to costs. There shall be certificate for counsel.

51.  Finally it seems to me that given the level of involvement of the children in this case and given the circumstances outlined above that it would be appropriate for an independent third party to explain my decision to the children. It seems that Ms Lee, the official Solicitor is an appropriate person to take up that task and I would ask that she undertake that on my behalf.