LSM v. CHYK

FCMC 8098 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8098 OF 2010

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J U D G M E N T
(Custody)

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Introduction

1.  This is a contested application concerning the arrangements for the only child of the family, a little boy who was born in July 2007 and is therefore 3 ½ years old. I will call him PH.

2.  The central issue to be determined is whether or not PH should continue to be mainly cared for by his paternal grandmother, or in the alternative, by his mother. The father argues that the status quo should be maintained, whereas the mother asks that PH live with her.

Background

3.  The parties married in March 2007 and four months later the wife gave birth to PH. Initially PH was entrusted to the care of the paternal grandmother, as both parties needed to work – the mother as a clerk and the father latterly as a shop assistant in 7-11. It is not disputed that the mother’s would take PH back to the matrimonial home over the weekends and that she would also visit him at the paternal grandmother’s home on Wednesday’s after work. The paternal grandmother initially looked after PH and another child, a little girl from the father’s first marriage, who I will refer to as CCT, at her own home in Tai Po. It is not clear what direct involvement the father had in PH’s early care.

4.  In or about the 30 January 2009 the parties separated. The arrangements for PH did not change and he continued to be based with the paternal grandmother at her home, with his half sister in Tai Po. The mother continued to visit him every Wednesday and to take him to stay with her at the weekends, the only difference being that she had moved to her own mother’s home in Tseung Kwan O. The father continued to live at the former matrimonial home and on his own evidence would see PH and his half sister when he went to visit his mother.

5.  In or about May 2010 the grandmother moved out of her home in Tai Po and moved in with the father, PH, CCT and the father’s new cohabitee. This appears to have been done without the mother’s consent. Thereafter access became a bit more problematic and the mother would see PH on most Wednesday evenings and usually for three weekends per month. PH now had regular contact with his father and his new cohabitee, although it is fair to say that by all accounts living conditions were somewhat cramped. The children also had to travel long distances each day to go to school.      

6. On the 8 January 2010 the mother issued a petition for divorce based on the father’s unreasonable behaviour. This was contested and on the 12 April I gave leave for a fresh petition to be filed. I also called for a Social Investigation Report. On the 28 June 2010 the mother filed for divorce based on one year separation with consent.  She sought custody and care and control of PH. On the 7 July 2010 the father filed his Form 4, indicating inter alia that he wished to contest the mother’s claim for custody. However by the time the parties came to court on the 7 July 2010 it seemed clear that the issue was not really one of custody but of care and control.  Both parents wished PH to live with them. At the pre trial review on the 27 September 2010 a further updated Social Investigation Report was called for, to be filed 21 days prior to trial. By the time the matter came to court the father seemed to have changed his stance slightly and sought sole custody and care and control of PH. The mother however was agreeable to an order for joint custody with care and control to herself and reasonable access to the father. 

The Law in Hong Kong

7.  It is necessary before turning to the evidence to look at the law governing applications concerning children in Hong Kong.

Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 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- 

(Amended 69 of 1997 s. 28)

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

8.  The general principles governing such applications are set out in s. 3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(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 welfare 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; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and shall be exercisable by either without the other;

9.  For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

Other matters to take into account

10.  The solicitor for the mother in her skeleton appears to have copied from one of my previous judgments, without referencing the quote. She refers to the checklist recommended by the Law Reform Commission. At paragraph 11 - 14 I believe she quotes me verbatim. She refers to the Law Reform Commission’s recommended checklist as set out below. For the avoidance of doubt no lawyer should quote from a judgment without referencing the quote properly. Although I have not referred to the checklist specifically in the body of this judgment it did form a backdrop to my deliberations.  

Checklist

(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.

Case law

11.  Both lawyers have also referred me to some helpful cases.  The solicitor for the father pointed out that it was an established principle that the court as a general rule favoured maintaining the status quo if it was found to be working satisfactorily. See Chow Cheung Suk-king v Chow Yan-Piu CACV 180 of 1984 and Re: Lee Cheuk-wah (an infant) CACV 2678 of 1983. 

12.  The mother’s solicitor also referred me to another, more recent Court of Appeal decision namely L v C CACV 333 of 2007.  In that case a child who was then nearly 5 years of age was initially ordered to remain in the custody of the Father.  This was mainly because it was felt that the status quo was working satisfactorily and should not be changed. On appeal the child was returned to his mother.  When commenting on this the Hon Rogers VP said,

“The importance of status quo would vary from case to case. In a case such as this it is merely some confirmation that the existing circumstances are not adversely affecting him. In this case there is no reason to suspect that if the mother’s proposals were to be accepted any change would be adverse of itself and hence the significance of the status quo is of very small importance”

13.  It is clear from this that the concept of status quo has developed over time and that although it remains an important consideration when dealing with issues relating to children, it will nevertheless need to be assessed on a case by case basis. It will be of more importance in some cases than others.

14.  In so far as the role of the natural parent is concerned the Hon Rogers VP, said, again in L v C CACV 333 of 2007

“What seems to me to have been overlooked in this case was the importance of one of the natural parents being the primary carer of the child. In this case it is quite clear that, albeit both parents work and have similar working patterns, that if the father were to be given custody, the paternal aunt would fulfil that role. Without in any way suggesting that the paternal Aunt does not devote full care and attention to the child, the importance of the natural parent being the primary carer must not be lost sight of. Coupled with that if the parent proposed to be the primary carer is the mother, this too is highly significant because of the natural role of the mother in the rearing of very young children. In this respect I would add that the judge does not appear to have considered the role of the mother in the child’s life in comparison to that of a paternal aunt, however devoted she may be”

In this instance we are of course dealing with a very young child.

15.  Although I was not referred to the two most recent Court of Appeal decisions on arrangements for children, it seems to me that they are of some relevance, given the circumstances of this particular case. For example in R v Y, CACV 193/2010 the Court of Appeal overturned an earlier decision granting the father sole custody of two fairly young children – an 8 year old girl and a 6 year old autistic boy. In that judgment the Hon Rogers VP said inter alia as follows:

This court was reminded of a large number of decisions which have stressed the importance of the mother in the life of a young child.  In this respect I would simply refer to the case of Brixey v Lynas [1996] 2 FLR 499.  It is unnecessary to cite from the speech of Lord Jauncey; it is sufficient to say that what he said there was clearly based on practical experience and the realities of life and is not a matter of prejudice or discrimination.

And later

In my view, the best course as regards the children is that the major decisions should be taken by the parties together.  This has been the case todate.  … There is no apparent reason why that type of cooperation should not continue.

16.  In that case the original order was set aside and an order made for joint custody with care and control of the children to the mother and access to the father as previously agreed with shared time over the weekends.

17.  In another Court of Appeal decision - PD v KWW CACV 188/2009, the Hon Hartmann JA helpfully reiterated the law on custody, joint custody, and access and shared care. I will not repeat the same here – but reference can be made to para’s 28 – 43 if required.

The issues

18.  The present issues before the court are as follows:

1) Should sole custody vest in the father or should there be an order for joint custody?

2) Who should have care and care and control of the child?

3) What arrangements should be put in place for the parent without care and control?

Discussion

19.  I must now turn to consider the issues, the law and the parties evidence as set out in the parties affirmations and as given orally during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.  In addition I have had the opportunity to observe the demeanour of the parties while they gave evidence in court.

20.  I have also heard evidence from the paternal grandmother and the father’s girlfriend and from the maternal grandmother and the mother’s boyfriend, together with oral evidence from the social welfare officer who wrote two SIR’s, the first dated the 4 June 2010 and the second the 23 November 2010.

The father’s case

21.  In essence the father’s case is that the status quo should be maintained. He acknowledges that PH has been largely cared for on a day to day basis by his mother. He does not advance the argument that historically he was the adult primarily responsible for caring for the child. However he does maintain that in the event that he were granted sole custody and care and control that he would be available to help take care of PH after he returns home from work at about 4:30 pm. He would also be assisted by his cohabitee, as well as the paternal grandmother, who would continue to play a central role. He also reiterates the importance of the bond between the two half siblings, who have until now effectively been brought up together. He also highlights the significant changes likely to be faced by PH if he were to move both home and school.

The mother’s case 

22.  The mother’s case changed just before the trial. She filed an affirmation confirming that she would be able to work part time for at least the next couple of years. This in turn would mean that she would be available to care for PH on an almost full time basis. She was able to negotiate a part time position because her boyfriend had lent her money to enable her to pay off some of her debt. Consequently there was less pressure on her to work full time. She confirmed that she would be able to earn enough on a part time basis to support both herself and PH.  She also confirmed that she had enrolled him in the afternoon session of a kindergarten close to her home. She intends to work afternoons only. Therefore she would be able to spend the mornings with PH, drop him off at school and see him again once she returned from work in the early evening. She intends to rely on her mother to pick him up after school and to care for him until she gets home from work. The maternal grandmother confirmed her willingness to assist in this respect whilst giving evidence in court.  

 The Recommendations made in the Social Welfare Report

23.  Initially the social welfare officer recommended joint custody with care and control to the father. The social welfare officer was aware that both parties worked similar hours. It was in those circumstances that she had initially recommended that the status quo be maintained. However once she was made aware of the mother’s proposed change to her working schedule, the social welfare officer changed her recommendation. She agreed that the mother should be granted care and control. She also suggested that any adverse impact on PH could be reduced by increasing the amount of access enjoyed by the father. She also urged the parties to work together to ensure a smooth transition. I would reiterate that call.  

24.  Although the recommendations made by the social welfare officer’s are not binding on the court they are persuasive. In this instance I intend to largely adopt the recommendations made.

Should sole custody vest in the father or should there be an order for joint custody?

25.  Having heard from the parties themselves and their other family members and bearing in mind the recommendations made by the social welfare officer and the recent decisions made by the Court of Appeal, I have no hesitation here in making an order for joint custody. As stated above, this does not appear to be the main bone of contention in any event. Rather the parties were more concerned about where PH should be based.

Who should have care and care and control of the child?

26. I have no doubt that both parents are capable of meeting PH’s immediate physical needs and that both want what is best for him. I also have no doubt that he is well loved by both sides of his family.  It is also clear that both parents rely on third parties to assist them in his day to day care. The father relies heavily on the paternal grandmother to care for both of his children, whereas the mother will also need to rely in part on the maternal grandmother to assist with child care in the afternoons before she gets home from work. I accept that PH has a close relationship with his paternal grandmother and his half sister. But as things stand at present the mother is able to devote more of her time in caring for PH. It seems to me that this is preferable to the alternative, namely that PH be cared for in part by his father and in part by his paternal grandmother. I have no doubt that infact the father relies very heavily on the paternal grandmother to take care of both of his children and he is lucky to have this level of support. It seems to me that the mother will be less reliant on her own mother.

27. I accept that the proposed change in the living arrangements will inevitably affect the relationship between PH and his half sister. I very much hope however that this can be minimalized as suggested by the social welfare officer and that efforts can be made to ensure that the children continue to see and spend quality time with each other on a regular basis.

28. I would also hope that efforts can be made to effect the change in the living arrangements as sensitively as possible.

The status quo of the child

29. In this case PH is very young. Almost from birth he has been cared for mainly by his paternal Grandmother, but with significant imput from his mother. He began to live with his father in May of last year. His care has to a certain extent been a joint endeavour.  I agree that in all of this, the paternal grandmother has been constant; she has cared for PH throughout. Although I have no doubt that the paternal Grandmother has done a good job, I do not think it preferable in the circumstances for the paternal Grandmother to step into the shoes of the mother. The mother is now available to care for PH and she should be given an opportunity to do so.    

30. The father suggested in his closing that either he be granted care and control or that there be an order for joint care and control. In the alternative the mother seeks care and control. 

31. Having considered the matter carefully I will make an order that the care and control of PH shall vest in the mother.

Shared care/access

32. Both parties were asked to make suggestions regarding access in the event that either PH was based with them or with the other party. In fact the parents were in some measure of agreement. The father asked for access twice per week on Tuesday and Thursday’s, whereas the mother only sought access on Wednesday’s. The father also sought weekend staying access three times per month from Friday evening to Sunday night and he asked for 1/3 of the public holidays and 1/3 of the school holidays. He also wished to have telephone access every day. Both parties had clearly given the matter some thought and each suggestion had something to recommend it. Apart from the fact that it seems easier to alternate weekend staying access and access over the public holidays, I have no difficulty with the suggestion made by either side.

Costs

33. Given the nature of this dispute I will make no order as to costs (see London Borough of Suttons v Davis (Costs) No. 2 [1994] 2 FLR 569).  Both parties are legally aided.  Consequently both parties’ costs will be taxed in accordance with Legal Aid Regulations.

34. Having read all the affirmations filed and having heard the parties and other witnesses give oral evidence.  Also having heard from the social welfare officer and having read both of the SIR’s I will make an order in the following terms:

1) There shall be joint custody of the child of the family, PH a boy born in July 2007, with care and control to the petitioner mother and shared care to the parties as follows:

a. staying access to the father on alternate weekends, at a time to be determined between the parties;

b. evening access to the father two evenings per week on a day and at a time to be determined between the parties;

c. staying access to the father for one third of all the school holidays by agreement between the parties, in the absence of any agreement the father is to have the first third of any such holiday.

d. access on single alternate public holidays at a time to be determined between the parties;

e. daily telephone access at a time to be determined between the parties;

f. any other access by agreement between the parties.

2)  An updated Social investigation report to be called for in 12 months time.

3)  There shall be no order as to costs.  Both parties’ own costs to be taxed in accordance with Legal Aid Regulations.