WWK v. WWH

FCMC 6552/2018

[2021] HKFC 70

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 6552 OF 2018

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J U D G M E N T

(The appropriate split of time during term time and other directions)

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Introduction

1.  There are cross applications before the court that now require adjudication, namely, the Petitioner father’s summons dated the 7 September 2018 in which he seeks care and control of the child of the family, KH, with defined access to the mother and the Respondent mother’s summons dated the 6 September 2018 in which she also seeks care and control of the child. She makes no proposals in that summons for access. The parties are agreed that they shall continue to have joint custody and an order to that effect was made on the 31 August 2018. Neither party seeks to vary that order.

2.  It is pleasing to note that despite the highly emotive start to these proceedings, that the parties were able to agree on the arrangements for the school holidays as originally discussed during the Children’s Dispute Resolution hearing on the 26 February 2019 (see the court order of the same date). These arrangements were confirmed and further fine-tuned in a consent summons endorsed by the court on the first day of trial. Further, although there had been no agreement about secondary school choices at the beginning of the trial, the parties were also able to come to terms with respect to this issue and they are now agreed about which schools they will apply for. They were both concerned about the upcoming school examinations which were originally scheduled for the end of March. It is not known whether those exams were held given the ongoing difficulties caused by COVID-19, but in any event, it is anticipated that there will not be any further exams of note and that KH will begin secondary school in September 2021.

Background

3.  Counsel for the father helpfully summarized the background in brief, in her closing submission as follows:

1.  These proceedings began by a Petition dated 28 May 2018 [A/1], based on 2 years’ separation.

2.  The Decree Nisi was granted on 16 April 2019[A/172].

3.  This is the trial of the parties’ respective applications in relation to the arrangements for the only child of the family, a son named WKH, K (the “Son”).

4.  By Day 1 of Trial, the only remaining issue in dispute was in relation to the term-time arrangements for the Son.

5.  The parties married on XX October 2004.

6.  The Son was born on XX May 2009, and is now 11 years of age. He is currently in Primary 6 at ABC Memorial Primary School, in HH. He will be going into secondary school in around September 2021.

7.  The parties separated on around 1 February 2016, although they continued to live under the same roof until around April to May 2017 ([A/2], Father 2^nd §29 [A/194]). In around April to May 2017, the Father moved out of the Former Matrimonial Home and moved in with his mother and brother [A/2], where he continues to live.

8.  This was a marriage of around 11 or so years.

9.  The Father is now 45 years of age, and is a real estate agent at DE.

10.  The Mother is now 44 years of age, and is a restaurant manager at HH, a Hong Kong-style roast meat restaurant chain.

11.  Both parties are Hong Kong Chinese. Both parties are legally aided in these proceedings.

…

13.  In light of the indications given by the Learned Judge during the course of the Trial, namely, for the parties to focus on the issues that would be helpful to the Honourable Court in making a decision as to the term-time arrangements rather than other historical matters, these Closing Submissions aim to focus on such matters in hopes of best assisting the Honourable Court.

4.  Although what Ms C states here is correct, it is also important not to gloss over what happened in the lead up to the trial. In gist there was an incident in June 2018, when following concerns over the mother’s child care arrangements the father arranged for KH to live with him. This was done without the mother’s agreement. Following that move the child refused to have any meaningful contact with the mother. The father then sought interim custody and care of the child, with very limited access to the mother. (See the summons dated the 27 June 2018). The matter first came before me on the 13 August 2018, which was during the school summer holidays. On that occasion I made an order as set out below, which effectively restored the status quo pending either an agreement at a Children’s Dispute Resolution hearing or ultimately at trial.

8.  The Parties shall share the care of the child of the family, KH, a boy born on XX May 2009 (the “Child”), during the school summer holidays a follows:-

a.  The Child shall be in the care of the Respondent from:-

i.  Monday (13^th August 2018) at 9 p.m. until Thursday (16^th August 2018) at 5:30 p.m.

ii.  Sunday (19^th August 2018) at 9 p.m. until Wednesday (22^nd August 2018) at 5:30 p.m.

iii.  Sunday (26^th August 2018) at 9 p.m. until Wednesday (29^th August 2018) at 5:30 p.m.

b.  The Child shall be in the care of the Petitioner otherwise;

c.  In each instance, the Respondent shall pick up the Child at the Petitioner’s home at Kowloon, Hong Kong when her access begins;

d.  The Petitioner shall pick the Child up on 16^th August 2018 from the Child’s tuition centre in HH, but otherwise he shall pick the Child up from the Respondent’s home at Kowloon, Hong Kong.

9.  The Child shall be returned to the care of the Respondent on 1^st September 2018 at 9 p.m. and the Respondent shall have interim care and control of the Child pending further order;

10.  Penal notice be endorsed: and

5.  On the 31 August 2018 I made a further order as follows:

3.  The parties do have joint custody of the only child of the family, namely, KH, a boy born on XX May 2009 (the “Child”), AND IT IS DIRECTED THAT the said Child not be removed from Hong Kong without leave until he attains the age of 18 years respectively but provided that if either parent do give a general written undertaking to the court to return the said Child to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the said Child from Hong Kong for any period specified in such written consent.

4.  With effect from the week commencing on 3^rd September 2018, the Petitioner shall have interim access to the Child on each Wednesday from 6 p.m. to 9 p.m. and staying access every Friday from 6 p.m. to Saturday at 9 p.m.;

This arrangement has continued until now.

The issues

6.  There is then only one outstanding issue to be determined by the court namely how should the care of KH be shared during term time?

The law  

Custody, Care and control, joint care and control/shared care and access

7.  The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

8.  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-

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

9.  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 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;

10.  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).

11.  Case law has developed over time and the most authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Reference should be made to that judgment as necessary. 

12.  Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. As both counsel have pointed out, I have discussed these concepts in other judgments including SEB v ZX (Custody) [2007] HKFLR 165, SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422 and more recently in PJM v GPN (unreported, FCMC 4999 of 2014, 2 May 2018). In SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422 I said as follows when discussing the concept of joint care and control and shared care: 

Joint care and control

21.  Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22.  The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus, orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again, in social science terms this is perhaps more reflective of a parallel parenting regime i.e., where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/rens best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case.  As I have said it is not possible for me to make a “parallel parenting” order as such.  However, I would like to make an order that supports the concept of parallel parenting.  Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access.  This will make no difference at all to the practical arrangements that I intend to put in place.  They would have been the same in either event.  However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … … I will therefore make an order for shared care, following the format of the order in H v H i.e., that the care of the children shall be shared between the parents as follows:

Detailed arrangements were then set out accordingly.

Discussion

13.  I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the second Social Welfare Officer – Ms. C, who prepared the updated Social Investigation Report dated the 18 February 2020. Unfortunately, the first Social Welfare Officer was unable to attend the trial because of ill health and I gave leave for both sides to comment on any issues arising out of the first report in their submissions. In doing so I expressed the view that the second report, which was much more recent in any event, was likely to be of more import to the court. I also heard from the paternal Grandmother and the maternal Grandmother and maternal Great Aunt.

Each party’s open proposals

The father

14.  The father set out his updated proposals in his Statement of Proposals dated the 5 October 2020 as follows:

Custody, Care and Control

1.  The Petitioner [father] proposes that parties share joint custody of Child with care and control of the Child to the Petitioner.

Access

2.  The Petitioner proposes that the Respondent [mother] have access to the Child as follows:

Weekly access during school term time

(i)  The Respondent shall have access every Wednesday evening from 6 p.m. to 9 p.m.;

(ii)  The Respondent shall have staying access every Friday from 6 p.m. to Saturday 9 pm.

In other words, the father is proposing a radical change to the status quo whereby the arrangements are “flipped” and instead of the child spending one night with him each week, the child is to spend one night with the mother each week. Initially he was also reported as stating that if the court agreed with the mother, that he then proposed that the original court order should remain in place. In other words, he was not interested in a compromised solution and favoured an all or nothing approach. It is not clear to me why that should be the case. However, in any event, the father confirmed to me during the trial that he would comply with any order that the court makes.

The mother

15.  The mother for her part adopted the recommendations made by the Social Welfare Officer as follows:

2.  Care and Control

The Respondent Wife adopts the recommendation made by the Social Investigation Officer in her report dated 18^th February 2020 that the parties to have SHARED care and control of the Child in the following manner:

(a)  The Petitioner Husband to have care and control of the Child from, 6:00pm every Thursday to 10:00am every Sunday; and

(b)  The Respondent to have care and control of the Child from 10:00am every Sunday until 6:00p.m. every Thursday.

For the avoidance of doubt, there will not be any usual access arrangement in such case. And in the event the Petitioner Husband is granted care and control of the Child, the Respondent Wife asks for the following USUAL access to the Child :

(a)  From 6:00pm to 9:00pm every Wednesday; and

(b)  From 6:00pm every Thursday to 9:00pm every Saturday.

The Social Welfare officer’s reports

16.  There have been two reports filed, the first dated the 22 October 2018 and as I have said, the second updated report dated the 18 February 2020. I am largely concerned with the second report. As Mr Eric Leung rightly pointed out for the mother, 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. As will be seen however, in this instance I tend to agree with the recommendations made.

2nd Social Welfare Report dated the 18 February 2020

17.  As stated above the Social Welfare Officer, Ms C recommended that KH spend two extra nights per week with the father, in recognition in part that KH was close to his father and that he was keen to spend more time with him. In her report she stated inter alia as follows:

18. The Social Work Officer interviewed KH alone on 6^th January 2020 and 7^th February 2020. KH expressed he understood that the Court would deal with matters on whether he would be living with his father or his mother. He stated his parents were responsible persons. He clearly indicated he wished to and would be happier if he could live with Mr. W, chat with him more, have his encouragement and support, receive his more effective guidance and attend the activities he planned. KH said he could afford the time to be spent, around 2 hours, on travelling between To Kwa Wan and Tseung Kwan 0 for school and tutorial classes every day. On the other hand, KH wanted to keep contact with Madam W on a regular basis, get together with her on Wednesday and Thursday night on usual days and stay overnight with her on Friday and Saturday. He said forgiving others was the merit of Madam W. Though Madam W treated him as a small kid when taking care of and teaching him, for instance, she arranged some relatively childish activities for him in trips, he did not tell her his feeling as he thought it was still acceptable to him.

19. KH learnt from his parents that he would be taken care of by both of them. When living with either the father or the mother, he did not want to wait for too long before he could see the non-residing parent as he would miss him/her. He expected he could get together with his father and his mother on separate occasions every week. KH expressed his worries and he was anxious when he had no idea about the arrangements. Having been explained by the Social Work Officer, KH stated he understood he would have the chance to get together with his parent separately and he managed to calm himself down gradually.

18.  In the witness box Ms C elaborated on this and explained that KH had been very upset initially as he had been under the misapprehension that shared care meant that the year would be split, with him spending six months in the exclusive care of each of his parents on an alternate basis, with no opportunity for him to see the other parent.  Both parents blame the other for this misapprehension. For my part, it simply serves to underscore the necessity of both parents agreeing to an approach, maybe for example, by having an agreed script so that they can both explain more easily to the child exactly what was being proposed and how, come what may, both would continue to be involved with his care going forward.

Conclusion and Suggestions

19.  In conclusion Ms C said as follows:

Conclusion and Suggestions

20. To conclude, KH maintained his stable life over the past year. His condition is satisfactory. He was still living with Madam W and the domestic helper in the matrimonial home in Tseung Kwan O. The helper assisted in taking care of KH when Madam W was at work. Weekly access, including staying access, by Mr. W was maintained. The parents agreed that the overall arrangements for the defined access and the joint care and control during school holidays and on festive occasions ordered by the Court were smoothly made. When KH attended special activities, both Mr. W and Madam W could be flexible in terms of planning.

21. Mr. W still wished to have the sole right of care and control over KH with access given to Madam W, including staying access, to maintain their parent-child relationship. Madam W opined that joint care and control allowed KH to spend more time with his father in daily life and maintained their parent-child relationship.

22. Investigation revealed that the parents loved KH and shouldered their responsibilities. Even though his parents had been divorced, KH still found them to be responsible and he felt their love. KH clearly expressed that he missed his parents. He also looked forward to getting together with them separately every week. KH had better communication with Mr. Wong. He wished to live with him. Having good communication and better understanding of KH, it is believed that Mr. W can give guidance to KH and assist him in his healthy growth.

23. At the same time, having been living with Madam W for years, KH had a good relationship with Madam W. He has been living with Madam W in the matrimonial home in Tseung Kwan O most of the time in these recent years, going to school in the same district, taken care of by Madam W with the assistance of the domestic helper, he was also familiar with the district and had friends living nearby. His overall living condition was stable and satisfactory. It is uncertain if KH can adjust to sudden changes, such as being taken care of by Mr. W, moving in to another district, going to school from To Kwa Wan to Tseung Kwan O, and how he will be affected then. The Social Work Officer is of the view that maintaining the present approach of taking care of KH and the status quo is indeed beneficial to his daily routine, learning and peers’ association.

24. Moreover, as KH wished to have more time getting together with Mr. W who proactively shared the responsibility of taking care of and teaching KH and Madam W agreed that more time for them to get along with each other had positive effects on KH, the Social Work Officer suggests that the Court may consider extending the duration of their gatherings, that is, apart from having access on weekdays, Mr. W can start the staying access earlier, from 6pm on Thursday until the morning of Sunday, so that they can spend more time on being together. In that case, KH needs to travel between To Kwa Wan and Tseung Kwan O for school on Friday only. He can rest at the weekend and return to his residence in Tseung Kwan O on Sunday. He can stay in the same district of the matrimonial home for school from Monday to Thursday. More importantly, these minor adjustments on the arrangements allow KH to have more contacts with both his father and his mother, so that he can continue to grow up with the care of his loving parents. Thus, the Social Work Officer is of the view that joint care and control is worth trying by both parties in the best interests of KH.

25. As for this case, though different approaches and views were adopted by the parents when taking care of and teaching KH, arrangements on handover and sharing the responsibility of taking care of KH could be made and done smoothly on usual days and during holidays. Mr. W’s wish to have the sole right of care and control and the pros and cons concerned in his consideration are understandable. No matter which party is having a better relationship with KH at the present stage, parents are always his closest relatives. More importantly, neither party hurts KH deliberately. Therefore, like other kids, KH has lots of contacts with both of his parents and the care and love of them. It is certainly beneficial to KH, who is entering adolescence, on his psychological health and helpful to him to tackle the challenges he is going to encounter in his growth in future. It is hoped that Mr W may seriously consider joint care and control. It minimizes the impacts on KH in his parents’ divorce. It also allows him to remember the precious experience he gained from the parents and the memorable episodes he had when living with them.

26. Therefore, in consideration of the parents’ responsibility of taking care of KH, their relationship with KH, the importance of a stable environment and life pattern to a 10 year-old boy and increasing the time for him to get together with his parents for the sake of maintaining the parent-child relationship, the Social Work Officer hereby suggests to the Court that:-

i.  The Petitioner, WWK, and the Respondent, Madam WWH, be granted joint care and control over the family child, WKH;

ii  a 6-month Supervision Order be made; and

iii  a Progress Report be submitted before the expiry of the Supervision Order.

It is suggested that on school days, Mr. W be granted care and control over KH from 6pm on Thursdays to 10am on Sundays whereas Madam W be granted care and control over KH from 10am on Sundays to 6pm on Thursdays. KH to be taken care of by his parents on an equally-shared basis during school holidays and public holidays as per the present Court Order. Details to be negotiated between parties.

As will be seen I tend to agree with this suggestion.  

How should the care of KH be shared during term time?

20.  In this instance both of the parents work full time and they will both need to continue to work full time going forward. Both will need to rely on some third party support, although each tried to present themselves as being more-able than the other to personally care for KH. However, I accept that the child care plan presented by each of them was generally well thought out.

21.  I accept, for example, that the mother is able to continue to care for KH, as she has more or less since separation, whether her job moves to a more locally situated restaurant or not, with the assistance of her domestic helper. Difficulties in this regard had led to the incident in June 2018. I also accept that she is able to rely on other family members and in particular her mother and Aunt, in the event of an emergency – although this was again a matter of concern in June 2018. In other words, she has some wider family support in the event that this is required. I also accept however, that normally this would not be the case. Although the mother currently has to leave home early, before KH gets up, she has devised a scheme whereby she is able to easily monitor what goes on at home. I also accept that KH is able to adequately communicate with the domestic helper. Further the mother tends to cook for KH each evening and she also prepares other food for him. She also monitors his homework. Although their accommodation is quite cramped, she has arranged for KH to have his own room and she currently shares a room with the domestic helper.  

22.  In so far as the father is concerned, I accept that he can also provide adequate accommodation for KH, although again this is quite cramped. When KH stays with the father they share the same bedroom. I also accept that he can make himself available for KH during the day and before school and that if necessary, arrangements can be made for KH to study at his real estate agency office. The father lives with the paternal grandmother and other family members and the paternal grandmother would also be available to assist if necessary, although she reiterated that this would mainly be involved in cooking and other household chores.

23.  However, at present, and as pointed out by the Ms C, the father lives further away from KH’s current school and his existing social network. Interestingly and rather alarmingly from the court’s perspective neither parent saw any difficulty with KH continuing to have tutorials every day after school for the rest of his school life. However, these and other arrangements may change once KH starts secondary school. But for now, the move proposed by the father would be a significant adjustment for the child and not one that in my view should be underestimated.

The father and the mother in the witness box and generally

24.  When considering matters of this nature the court is charged with assessing the character of both parties in the witness box. I should say at the outset that both parents struck me as being good parents who are trying to provide a stable home for KH. They struggle however, in that their day-to-day interactions are strained and they do not appear to have developed a fully functioning co-parenting relationship, although hopefully that has and will continue to improve. I accept though, that they are both able to provide KH with a loving and secure home base. It seemed to me that the father initially had an all or nothing mentality – i.e., a win or lose it approach to the litigation. However, this will hopefully have shifted a little. I should add that such an approach is rarely helpful when it comes to issues pertaining to children.

25.  I also had an opportunity to see both Grandmothers and the Great Aunt in the witness box. Both of the Grandmothers struck me as being rather elderly and somewhat frail, although for different reasons. The maternal Grandmother, or FatMum as she is (I am told) affectionately known, is, as the name suggests, rather plump. She explained that she had some blood sugar issues. She walked with the assistance of a cane. Similarly, the paternal Grandmother presented as being quite frail. I have no doubt that both love KH very much and that they will each do whatever they can to assist. However, it seems to me that neither should be relied upon to care for KH on their own for any extended periods of time. In contrast the Great Aunt presented as being very fit and in good health. She seemed more robust and would probably be better able to handle a pre-adolescent boy.  

Other options

26.  Although this was not discussed at trial, I have debated whether or not this would be a suitable case for a 50:50 shared care arrangement either on a week on/week off basis or on a 2:2:5:5 basis. I ultimately decided that these arrangements might not be optimal at present given the fact that they each pre suppose that KH could spend alternate weekends with each of his parents. However, in this case each parent is required to work on at least one day of the weekend. Ideally then they should each spend at least one day of the weekend with KH. If I alternate the weekends this will not be possible. However, this may be something for the parties to consider in the future.

Conclusions and order

27.  Having considered all of the above therefore, I shall make an order as follows:

i)  There shall be an order for shared care with KH being in the care of the Petitioner father from 6:00 pm on Thursdays until 10:00 am on Sunday mornings. He shall be in the care of the Respondent mother otherwise.

ii)  This arrangement shall commence after the Easter school holidays.

iii)  In order to assist the parties, there shall be a 6-month supervision order.

iv)  An updated Progress Report shall be called for, to be filed shortly before the commencement of the next academic year in September 2021.

v)  There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs including all costs reserved. Both parties’ own costs to be taxed in accordance with Legal Aid Regulations.

vi)  There shall be a further First Appointment hearing on the 22 July 2021 at 9:30 a.m.

vii)  Both parties do personally attend that hearing.