LCL v. QCR

FCMC 3953 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3953 OF 2015

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J U D G M E N T

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Introduction

1.  This trial was originally fixed to deal with the bitter fight between the father (“Father”) and the mother (“Mother”) for the custody, care and control of the 2 children of the family, a boy who is 4 years old (“X”) and a girl who is 2 years old (“P”).

2.  On the first day of trial however, through the industry of Counsel on both sides, the parties managed to agree to have joint custody of X and P, with care and control of the 2 children granted to the Father, leaving the issue of access (both on a daily basis and concerning holiday arrangements) and terminology of the care and control arrangement to be decided.

3.  At the start of the trial, the parties’ respective positions were as follows:

(a) The Father’s Position:

(i) The Father is to have care and control of the 2 children.

(ii) The Mother is to have access as follows:

- Staying access from 6:00 pm on Friday to 8:00 p.m. on Saturday for the 1^st, 3^rd and 5^th (if any) weeks of the month.

- Staying access from 6:00 p.m. on Friday to 10:30 a.m. on Sunday for the 2^nd and 4^th weeks of the month.

(iii) Whilst the Father is agreeable to 50%/50% sharing of other long school holidays, namely, Christmas, Chinese New Year and Easter, he insists on spending 70% of the time during summer holidays with the 2 children.

(b) The Mother’s Position:

(i) Whilst the Mother prefers a more neutral term for children arrangements, she does not insist on any precise term to be used, and is open to care and control of the 2 children be granted to the Father.

(ii) The Mother be granted access as follows:

-   Staying access from Thursday afterschool to 6:00 p.m. on Saturday for the 1^st and 3^rd weeks of the month.

-   Staying access from Friday afterschool to 10:30 a.m. to 2 p.m. on Sunday on the 2^nd, 4^th and 5^th (if any) weeks of the month.

(iii) In addition to the other holiday access, the Mother asks for access for 50% of the summer holidays.

4.  Both parties agree that whilst the 2 children are in the care of one parent, the other parent should have telephone or video access with the children once everyday between 8 p.m. to 10 p.m. (for no less than 15 minutes each time).

5.  Thus the only disputes between the parties concern access arrangements as listed follows:

a) whether the Mother should have an extra night of staying access on Thursdays on the 1^st and 3^rd weeks of the month,

b) whether the Father should have 70% of the summer holidays or should the 2 children spend an equal amount of time with the Father and the Mother during the summer holidays.

c) whether the 2 children should be picked up by the Mother from school or at 8 p.m. near the Father’s home on the days of access,

d) whether the 2 children should be picked up by the Father after access with the Mother at 10:30 a.m. or 2 p.m. on Sundays, and

e) (if there is extra Thursday access) whether the 2 children should be picked up by the Father at 6 p.m. or 8 p.m. on Saturdays.

Background

6.  The parties were acquainted in 2008 in the PRC.  There are some factual disputes as to how they met but Counsel for both sides rightly agreed that those disputes are irrelevant to the issues at hand.

7.  They were married in Hong Kong in April 2011.  The Father is a bank manager and the Mother is a housewife.  Due to what the Father alleged to be an extra-marital affair on the Mother’s part with an old admirer (“Mr P”), the Father left the matrimonial home with the two children on 14 April 2015.

8.  After the Father left with the children, there had been heated disputes and exchanges between the parties as to the behaviour of the Mother during access (which were for a period supervised access, as requested by the Father) with the 2 children. There were allegations that the Mother was living with Mr. P and that the Mother had been asking the 2 children to address Mr. P as “爸爸 B” (father B) and that certain behaviour of Mr. P made him unsuitable to be around when the Mother had access with the 2 children.

9.  These allegations were denied by the Mother, which led to the Father resorting to various methods in the attempt to prove his case, including personal investigation and asking the children to re-enact scenes when they were with the Mother.

10.  The results of such investigations led to lengthy affirmations filed on behalf of the Father, followed by equally lengthy rebuttal affirmations filed on the Mother’s behalf.  Before the trial started, the parties were going to call evidence from various witnesses who would testify to such investigations and some other witnesses to cast doubt on them.

11.  Whilst the Court understands the desire for the parties to have certain issues determined, the Court would not adjudicate on irrelevant issues simply because the parties wish to have their day in Court.

12.  Parties were originally going to call a total of 8 witnesses.  Again, through the common sense of Counsel, it was agreed that most of the high conflict episodes that happened between the Father, the Mother and Mr. P need not be resolved by the Court.  In the end, only the Father, the Mother and the Social Welfare Officer were called.

The Law

13.  The parties agree on the law governing applications concerning children in Hong Kong.  Section 19 of the 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 judicialseparation, 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 provides:

“3(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;…”

11.   For the avoidance of doubt s.48C 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

12.   Although there is no statutory welfare checklist in Hong Kong, as there is in other common law jurisdictions when determining custody, there are a number of factors, which need to be taken into account or considered when one considers arrangements concerning children.  Some of these mirror the welfare checklist in the U.K..  The following list is not meant to be exhaustive, but simply a guide when considering issues relating to custody, care and control and access and the welfare of children generally.  The factors are:

a) The recommendations made by the Social Welfare Report;

b) Recommendations made in any other reports and/or by other experts;

c) The ascertainable views of the child concerned (considered in the light of their age and understanding);

d) How capable each of the parents and any other person is, of meeting the child’s needs;

e) The parties’ child care plan;

f) Any physical / mental disability or illness of either parent;

g) The child’s particular physical, emotional and educational needs;

h) Sibling unity (if relevant);

i) The personality and character of the parties;

j) Any matrimonial misconduct affecting the children;

k) Any harm which the child has suffered or is at risk of suffering;

l) Any other factors which the Court considers relevant bearing in mind the child’s age, sex and background;

m) The status quo of the child and the likely effect of any change in her circumstances.

13.   Bearing in mind the relevant sections above I will proceed to analyse the parties’ evidence.

The Social Welfare Investigation Report

14.  The Social Welfare Officer in charge of the present case, Ms Cheung has worked in the Social Welfare Department for over 20 years and has been in her present post for over 5 years. The Court wishes to state from the outset that Ms Cheung has shown to be an impartial witness who is unwavering in her professional opinion.  The Court finds her to be a straightforward, reliable and credible witness.

15.  Ms Cheung has written two social investigation reports pursuant to Court orders.  The first report is dated 8 December 2015 (the “1^st SIR”).  The second report is dated 8 September 2016 (the “2^nd SIR”).

16.  Ms Cheung has pointed out in the 1^st SIR that there is no dispute that the Mother is not a permanent Hong Kong resident and comes to Hong Kong on China travelling permits.  She can apply for renewal of such permits by post and does not need to leave Hong Kong in the meantime.  Her current accommodation is rented in the name of Mr. P’s sister.  The Mother claims that she alone is responsible for the monthly rental payment of HK$24,500.  Although she is a housewife and has no income, she depends on her parents who are businessmen in the PRC.

17.  Even at the time of the 1^st SIR, despite the apparent conflicts manifested by way of the various affirmations filed in the proceedings, Ms Cheung was of the opinion that both the Father and the Mother contributed positively to the 2 children and had actively taken care of them in their respective ways.  The 2 children are happy children despite the unhappy split-up of the parents.  The Father and the Mother are to be commended in their efforts to leave their differences out of the children’s lives.  The Court wishes for this effort to be kept up in the best interest of the children.

18.  At the time of the 1^st SIR, Ms Cheung recommended joint custody to be awarded to the Father and the Mother, care and control to be awarded to the Father, with defined access to the Mother along the following lines:

i) staying access for the 1^st, 3^rd and 5^th (if any) weeks of the month, from Friday night to 8pm on Saturday;

ii) staying access for the 2^nd and 4^th weeks of the month, from Friday night to 11 a.m. on Sunday.

19.  At the time of the 2^nd SIR, the access arrangement that was in place between the parties was:

i) staying access for the 1^st, 3^rd and 5^th (if any) weeks of the month, from 8 p.m. on Friday to 8pm on Saturday;

ii) staying access for the 2^nd and 4^th weeks of the month, from 8 p.m. on Friday to 11 a.m. on Sunday.

20.  By the time of the trial, the Mother had admitted to seeing Mr. P regularly, although she would not characterise them as being in an intimate boyfriend-girlfriend relationship.  At the interview with Ms Cheung, Mr. P had admitted to planning on continuing courtship and marrying the Mother some time in future.  Mr. P is a Hong Kong resident.

21.  Ms Cheung opines that the Father is able to provide a relatively more stable environment in terms of arrangements concerning his work and his life in general.  The 2 children had been well-adjusted in living with the Father together with the assistance provided by his parents and his domestic helper.  The current arrangement seems to be working and to avoid further disruption to the children, Ms Cheung has recommended for the arrangement to continue.

22.  Ms Cheung has again opined that since the Father and the Mother have happy relationships with the 2 children respectively, in the best interests of the 2 children she maintains her recommendation of joint custody, care and control to be awarded to the Father, with defined access to be awarded to the Mother, with slight changes in the access arrangements:

i) telephone/video access every night from 8 p.m. – 10 p.m. (reciprocal arrangements apply to the Father when the 2 children are in the care of the Mother);

ii) staying access for the 1^st and 3^rd weeks of the month, from Friday night to 8pm on Saturday;

iii) staying access for the 2^nd, 4^th  and 5^th (if any) weeks of the month, from Friday night to 2 p.m. on Sunday;

iv) staying access for half of the major holidays (Christmas, Chinese New Year, Easter and summer holidays); and

v) day access for Mid Autumn Festival and Tuen Ng Festival on a yearly alternate basis, from 9 a.m. to 8 p.m..

23.  It can be seen that the increase in access was recommended by Ms Cheung during weekends and during school holidays.

24.  The Mother wishes to extend staying access twice a month from Thursday nights to Saturday.  Her rationale was that she wants to be able to take the 2 children to school twice a month and she wishes to participate more in their school life.

25.  The Father objects to the proposal as he does not wish to disrupt the daily routine of the 2 children during weeknights when they have to go to school the next day.

26.  Ms Cheung was cross-examined by Counsel for the Mother on the feasibility of extending staying access from Thursday to Saturday twice a month.  In summary, Ms Cheung is against the proposal.  Her reasons are as follows:

i) at this stage of the lives of the children, school life plays a very important part in their development and should be kept stable as much as possible;

ii) currently the 2 children have a stable routine which involves them taking the school bus everyday to and from home; if there is any change to the arrangement, inevitably third parties such as the bus nanny would be aware of what goes on in the family.  Unlike teachers or other trained professionals, it is likely that they would spread information concerning the divorce of the parents to other parties who do not need to be told of the private affairs of the family.  The 2 children’s well-being might be adversely affected by unnecessary gossip;

iii) children of such tender age seldom do not understand and cannot express the stress in handling these situations and may exhibit psychosomatic symptoms such as stomache and unwillingness to go to school;

iv) there is little concern of the Mother being kept out of the school lives of the 2 children, given the parties have now agreed to having joint custody of the children.

27.  The Court agrees with Ms Cheung’s opinion.  The Court finds them to be well-reasoned and can be easily appreciated.  What the parties need to bear in mind is that when the Court considers whether an arrangement concerning children should be adopted, the Court does not look to the personal wishes of the parents but to whether such an arrangement is in the best interests and welfare of the child if the two are in conflict.

28.  Although Counsel for the Mother at one point tried to couch the extended Thursday night visits to be in the best interests of the 2 children (as they would get to spend more time with the other parent), with respect, that is only looking at one side of the matter and ignores the fact that the 2 children will have to deal with the possible adverse consequences (as outlined by Ms Cheung) of their parents’ divorce.  The suggested benefits to the 2 children cannot be viewed in isolation and must be considered together with the possible negative impact on them.

29.  In this scenario, even if the current arrangement does mean that the Mother can never bring the 2 children to take the school bus, this might be inevitable given the Mother and the Father (who has care and control of the children) live apart.  The children’s welfare (in this case the importance for them to have a stable routine when going to school) should not suffer as a consequence of the parents’ personal wish to play a bigger part in all aspects of the children’s lives.  The Mother is not precluded to participate in the children’s school life.  She can still, and is encouraged to take part in any activity that the School has arranged for parents.

30.  In conclusion, the Court does not agree that at this stage, where the 2 children are so young, the suggested extension of 2 Thursday nights a month would be in the best interests of the children.

31.  The Court now turns to consider whether in the best interest of the children they should spend an equal amount of time between the Father and the Mother during summer holidays.

The Mother’s capability and child care plan

32.  The Mother has not raised much concern in relation to the Father’s child care plan.  The Father on the other hand has raised various issues in terms of the Mother’s capability in taking care of the children.  The Court would stress at the outset that despite these concerns that the Father has, access with the Mother had been carried out without much difficulty.

33.  Firstly, the Father alleges that even when the parties were together, it was the domestic helper who handled most of the child caring work.  Although the Mother disputes this, what is not disputed is that, as pointed out in both the 1^st SIR and the 2^nd SIR, the position of the Mother was also that she would need the assistance of a helper when taking care of the children as they are both still quite young.

34.  This raises the issue of how the Mother can obtain such help as she (not being a permanent Hong Kong resident at present) cannot employ a foreign domestic helper. When questioned by the Court, Ms Cheung maintains her recommendation that the Mother should have 50% of the holidays as she does not perceive there to be major problems with the Mother taking care of the children even without the help of a domestic helper.

35.  The Mother confirmed that as the 2 children are now older, she is confident that she is able to take care of the both of them even if she has no help.  If necessary, she would consider hiring part-time help, which she is allowed to do even if she is not a permanent Hong Kong resident. This is assuming if her mother, the children’s grandmother is unable to help in future if her health deteriorates.

36.  The Father tried to demonstrate the Mother’s inability or lack of interest in taking care of the 2 children in the past. These had already been considered by Madam Cheung, who is well aware of the adverse comments and attitude that the Father has towards the Mother’s child care skills and method.  Yet Madam Cheung still maintains her view.

37.  Secondly, the Father questions the Mother’s reasons and motive for seeking to spend more time with the 2 children.  The Father suspects that the Mother is only interested in getting more access to pave the way for seeking more ancillary relief for herself and for the children.  The Court cannot agree that this was demonstrated at trial.  This is mainly because the amount of extra maintenance involved in two more nights of access per month as well as 20% more time during the summer holidays with the children would be minimal.

The Mother’s conduct affecting the 2 children

38.  Another issue concerning alleged misconduct affecting the children would be the involvement of Mr. P.  Now that it is accepted that Mr. P is in the Mother’s life, the Father raises concern on Mr. P’s conduct (including smoking, which is admitted to have occurred) and on the Mother’s handling of Mr. P’s role in the lives of the 2 children.  There were allegations on the part of the Father that the Mother and/or Mr. P had been teaching the children to call Mr. P as 爸爸B (father B) and to call Mr. P’s parents as爺爺、嫲嫲 (grandpa and grandma). This the Father says creates much confusion to the children.

39.  Although the Mother denies having taught the children to address Mr. P and his relatives in such manner, the Mother does not say that the Father was lying or that the Son had misunderstood. Ms Cheung had recorded in the 2^nd SIR that the Son had addressed Mr. P as爸爸B (father B) in front of her.  Ms Cheung had also recorded that the Mother told the Son not to address Mr. P as father but the Son asked her why not.  Ms Cheung was not challenged as to that incident.  The Court finds that more likely than not the Son did address Mr. P as a father, whether he was taught to do so or he did it out of his own observation. 

40.  It is apparent why children of such a young age should not be taught to differentiate different fathers.  As seen from the 2^nd SIR, X seemed confused when the Mother told him not to address Mr P as爸爸B (father B) in front of Ms Cheung. This is even more so when the Mother’s case is that her relationship with Mr. P cannot be categorized as serious at this stage.  If that were the case, there is little justification in introducing Mr. P as a potential father figure to the children.

41.  Towards the end of the hearing, the Mother has agreed to give an undertaking to the Court and the Father that Mr. P will not be present or appear during the time when the children are in the care of the Mother (whether during school days or school holidays).  This concern of possible adverse influence of Mr. P is thus put to rest.

The other factors

42.  Parties agree that the 2 children are too young to ascertain from them their views on the arrangement. 

43.  There is no physical / mental disability on the Father or Mother’s side, nor is there any special needs of the children that need tending to.  There is no dispute that the siblings should stay together under the care of either parent at any one time.

Conclusion on summer holidays access

44.  Having considered all the relevant factors, on the issue of equal sharing of the summer holidays, the Court considers the Father’s concern to be unjustified. 

45.  Given the children already spend the majority of the week with the Father, and the fact that the Father does not deny it is important for the Mother to remain a part of the children’s lives, the Court is of the view that an extra 20% of time during summer holidays (which translates to approximately 12 more days) with the Mother during the Summer Holidays (when the important school routine is not disturbed) would be in the best interests of the children.

Terminology

46.  Counsel for the Wife suggests that a label of “shared care” be adopted instead of “care and control” being awarded to any one party to avoid the “winner/loser” label.

47.  First of all, this is contrary to my understanding of the agreement which was already reached in Court in terms of terminology.  Secondly, there can be no misunderstanding or confusion that when the Mother has access with the children (be it during school days or school holidays), she will have care and control of them.

48.  As acknowledged by both parties, the Father and the Mother are at the moment still in a high-conflict situation.  It will be counter-productive for the Court to give an order which essentially requires a high degree of communication and co-operation between them.  This is echoed by Madam Cheung in her reports.

49.  The Wife also suggests that there should be a proviso that no later than when the children enter primary school the parties should gradually increase the time the children are to spend with the Mother, with the ultimate goal of equal sharing of parenting responsibility.

50.  With respect, such a proviso does not serve any useful purpose.  The Court has already warned the Father and the Mother the potential emotional harm that can be done to the children if they continue to have heated arguments on access arrangements. Whether they can bring themselves to put the children’s interests as the paramount importance is another matter.

51.  By having such a provision, the Court will in effect be pre-empting the professional opinion of a social investigation officer or other professionals when they give their recommendations to the court on what would be the best arrangements for the children in future.  If such an arrangement were suitable, no doubt it will be recommended and the Father would be expected to sensibly adopt such recommendations unless there are any legitimate reasons not to do so.

52.  One observation that the Court would make is that even at the stage of closing submissions, it is clear that the Father and the Mother are still adhering to their stance based on what they want, and not what are in the interests of the children.  The Court encourages the Father and the Mother to make their decisions in futre based on the children’s interests, rather than their own personal interests.

53.  The Court would like to thank Counsel on both sides for their invaluable assistance in such a high-conflict case.

Order

54.  Upon the Respondent’s undertaking to the Court and to the Petitioner that Mr. P will not be present and will not appear when either or both of the children of the family, namely X and Y are in the care of the Respondent, IT IS ORDERED THAT:

1. Joint custody of the 2 children of the family, namely, X and Y be granted to the Petitioner and the Respondent;

2. The Petitioner is to have care and control of the 2 children;

3. The Respondent is to have defined access of the 2 children as follows:

- Staying access from 6:00 pm on Friday to 8:00 p.m. on Saturday for the 1^st, 3^rd and 5^th (if any) weeks of the month.

- Staying access from 6:00 p.m. on Friday to 10:30 a.m. on Sunday (so that the 2 children can attend Sunday school) for the 2^nd and 4^th weeks of the month; and

4. The long school holidays, namely, Christmas, Chinese New Year, Easter and Summer be shared between the Petitioner and the Respondent equally; and

5. a costs order nisi that there be no order as to costs; the Respondent’s own costs be taxed in accordance with Legal Aid Regulations.