BN v. GHB

FCMC 4089/2023

[2025] HKFC 165

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4089 OF 2023

____________________

____________________

------------------------------------------------------------

J U D G M E N T
( Custody )

------------------------------------------------------------

This Application

1.  This hearing arises out of the Children Appointment, where the Master dealing with the case distil the issues between the parties to be one of custody.  The exchange of Form Js in August 2023 (from Petitioner father (“F”)) and October 2023 and December 2023 (from Respondent mother (“M”)) further crystallizes this issue.  

2.  The hearing on custody was held on 5 March 2025.

3.  There is one child of the family, a daughter A, born in June 2017, age 7 at the time of the hearing.

4.  The parties are in agreement that the care and control is with F.  By my Order dated 28 May 2024, parties were granted interim joint custody.

5.  Further on 26 August 2024, the following orders were made:

a.  F has care and control

b.  M has defined weekly access from Friday at or before 7:30pm to Sunday, when the child will leave the Respondent’s home for the bus between 12 noon - 1pm 

Brief background

6.  F is an Indian national, aged 40 at the time of trial; he runs a diamond business in HK.

7.  M is a Pakistani national, she was aged 38 at the time of trial. She obtained her secondary and university education in Pakistan, and then obtained a master degree in Hong Kong in 2019.  She now works as a lab technician at a school. 

8.  Parties were acquainted when they were teenagers and moved into courtship for around 10 years before getting married in Hong Kong in July 2011.  After the marriage, M returned to Pakistan to finish her university studies; and then came back to Hong Kong to settle down with F in 2012.

9.  The marital discord started after A was born, M moved out from the family home in February 2021.

10.  F filed for divorce in April 2023.

11.  Since M left the matrimonial home, F has care and control of A, his mother has been assisting him with care of A.  F has also engaged a helper to assist with household chores and childcare duty.

12.  M did not ask F for spousal maintenance or any capital division from the divorce.

13.  Decree Nisi was granted on 5 November 2024. 

F’s case

14.  F says he does not wish to communicate with M, he says he has suffered abuse from M emotionally, physically and mentally; and just to speak to M will put a mental stress on him which affects his ability to parent.

15.  According to the first Social Investigation Report (“SIR”), F says that he could not co-operate with M over A, he refuses direct communication with M, and only do so via a third party.  F’s domestic helper has been used as a bridge, and go between the F and M on the issues concerning A.  The domestic helper assists in co-ordinating the access arrangement and bring A to see M on the weekends and holidays.

16.  F says that there is no trust between himself and M, and therefore he refuses to be in a joint custodial role with her.  F says that it could only lead to conflict should joint custody be granted, he says to the SWO that “joint custody was stupid and unworkable”.

M’s case

17.  M asks for joint custody.  She says this will be in the best interest of her daughter that she is involves with important decision making as she grows up.

18.  M also says she is ready to communicate with F.

19.  M says in her 5^th Affirmation that when she left home in February 2021 with one suitcase, she was not able to take A with her, she has no close relatives and friends in Hong Kong while F lives with his brother and have his mother who can care for A.  She also did not wish to upset A with her schedules and circle of friends. 

20.  She says she now works as a chemistry technician at a school. This job gives her the flexibility to spend the weekend with A, while a lab technician job elsewhere would require her to work shifts, nighttime and weekends. 

21.  M says the access has been relatively smooth. However she  asks that F should not interrupt her in her time with A, as it has happened at least twice that F secretly messaged the domestic helper to bring A home during M’s access time under the pretext of needing to prepare for school assessment for the following week.  M queries why F cannot have the homework delivered to her on Friday and have her assist A, which she is very competent to do.

Evidence

22.  M filed two affirmations on 26 June 2024 and 5 August 2024; F filed his affirmation on 2 July 2024.

23.  There are two SIRs, filed on 8 November 2023 and then updated on 12 August 2024.

24.  Both parties appeared in person, they both cross examined the SWO.  M cross examined the F, but F has no questions for M.

Legal Principles regarding Custody

25.  The jurisdiction of the Court to determine custody of Children is well settled, this is anchored in Section 19 of the Matrimonial Proceedings and Property Ordinance, and Section 3 of the Guardianship of Minors Ordinance.

26.  The custodial decisions to be made by parents are related to place of residence, schooling, medical treatment and choice of religion. The general principle is that joint custody is always encouraged as it is in the best interest of a child to have both parents in his / her life when important decisions need to be made.

27.  The principles of joint and sole custody are set out in the seminal decision of the Court of Appeal in PD v KWW, Civil Appeal No 188 of 2008 (9 June 2010) on the issues of custody, care and control and access.  Therein, Mr Justice Hartmann laid down the following principles:

“Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order or custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognizing that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.”

28.  The case of H v A [2005] HKFLR 304 deals with an issue which is one that faces the parties in this case, therein Geiser J held that lack of communication was not a sufficient reason to disallow an order for joint custody. He found that it was not a right of one party to stand in the way and deny the other party fundamental rights over a child by simply asserting that that party cannot (or possibly chose not) to speak to that other party.

The SWO evidence

29.  In both SIRs, the SWO has recommended that the parties have joint custody of A.

30.  It is the SWO’s observation that A has a good relationship with both parents, F has exhibited adequate care of A with the assistance of the domestic helper and his mother.  And access has been running reasonably smooth except for a run-in in Summer 2024 when M wanted to extend her week access with A, and F told the domestic helper to bring the child home without informing M.

31.  This is what the of the SWO says of F in the two reports:

20.  [F] expressed his difficulties to work with [M] over the custody issue.  Though he revealed that he neither liked nor hate [M], he reiterated his refusal to work with [M] over [A]’s custody.  He stressed that the marital relationship was ruin and he could not co-operate with [M] over [A]’s issue because no trust was found between them.  Currently, he refused direct communication with [M] and [M] had to contact him via the third party.  He believed that it only raised conflict with [M] if joint custody was granted.  Therefore, [F] asked for sole custody of [A].  [F] commented that joint custody was stupid and unworkable. (1^st SIR §20)

9.  [F] expressed his difficulties to work with [M] over the custody issue. He stressed that the marital relationship was ruined and they had no trust with each other. He refused direct communication with [M] and they only communicated via the domestic helper.  He anticipated that he would have conflict with [M] often if a joint custody was granted to them.  It would adversely affect his mental health and made him difficult to perform the father role.  He revealed that he could not take care of the daughter well under [M]’s interference.  He was frustrated that [A] would be put in a difficult position if the parents were always in conflict over her affairs.  [F] believed that he was capable of making a right choice for [A] solely because he deeply understood the daughter’s interests, personality, and needs.  [F] was proud of choosing the present school for [A] because the school could help [A] develop both Chinese and English well and [A] could mix with local student easily.  He revealed that [M] only met the daughter 2 days a week.  She was a playmate of the daughter but did not understand her.  He believed that [A] liked long hair but [M] helped [A] cut it.  Therefore, [F] asked for sole custody of [A] and declined mediation / counseling on custody and child access.  On the other hand, [F] stressed that he would accept [M]’s child access request / arrangement if she gave him an early notification and sufficient time for preparation. (2^nd SIR §9)

32.  And as for the M:

23.  [M] recognized the equal importance of both parents in the child’s development and acknowledged that they both had equal rights to make decisions regarding the significant welfare matters of their daughter including education and medical care.  She expected that joint custody would serve their child’s best interests, as it ensured that both parents could be actively involved in her upbringing.  Also, the child could enjoy love of both parents.  In light of this, [M] requested joint custody and reasonable access to [A]. (1^st SIR §23)

11.  [M] stressed that both parents had equal right in making decision on the child’s significant welfare matters of their daughter including education and medical care.  Being a mother, she fully understood the developmental needs of a girl.  Thus, she considered her active involvement in the daughter’s development and upbringings was essential.  She hoped that she could focus positively on the matters concerning the daughter’s present and future life.  On the other hand, [M] was frustrated that she felt more difficult to work with [F] on child access in this summer holiday.  She blamed [F] always created barriers on child access. He ordered the domestic helper to take the daughter back home without informing her during [M]’s child access days.  It interrupted the gathering between the mother and the daughter.  [M] highlighted that she was well educated with stable income and decent living.  She was capable of making right decision for the daughter.  She welcomed to liaise with [F] for the daughter’s issue and was ready to receive mediation / counseling service with [F] for settling the dispute in a peaceful way if he agreed.  She expected that joint custody would serve their child’s best interest and safeguard her basic right on the daughter.  In light of this, [M] requested joint custody of [A]. (2^nd SIR §11)

33.  The SWO recommends joint custody to the parents, care and control to remain with F, and reasonable access to M.

Cross examination by F

34.  In H’s cross examination of the SWO, H says he was “biasly” treated because the SWO reports in the updated SIR that F says he had no vice habit. He challenged the SWO as to why she did not make the same comment of M, the SWO says that M leads a healthy life.

35.  H asks the SWO why she recommends joint custody when M is unable to take care of A, he is of the view that only with equal responsibility comes equal rights, and as W is not willing to take care of A, and not spending time with her, she has no rights to make decision about A.  He says, the logical conclusion therefore, is that she is not able to make joint custody.  

36.  The SWO defends her recommendation explaining that although M is unable to take care of A, M has the ability to make decision in relation to matters of the child; she reports that M wants to take are of A but unable to do so due to the need to work.  She urges the parents to strengthen communication between themselves and should keep each other apprised of A’s situation.

Cross examination by M

37.  From the cross examination, M confirms with the SWO that her limitation is not her capacity as a parent, but due to her lack of family support and her working hours, and that M prefers not to leave A to domestic helper.  She repeats that while she does not trust F, she does trust his parents as they are sane and well educated; and that the paternal grandmother looks after A daily during the weekdays.

38.  M confirms with the SWO that academic support is not just homework F does.  But as F does not allow her to be involved with A’s homework, she is involved with doing other things with A, including skating, fieldtrips, and travelling.

Discussion

39.  H says that since the last time before me, there has not been any need for custodial decision to be made.  But he says the number of times A went to the doctor, he never told M, nor did he tell the helper to inform the M.  He says as M would call to ask after A, she could find out then.

40.  He has had zero contact with M.

41.  F has no cross-examination questions for the W, so I shall accept her evidence as unchallenged.

42.  F has proffered no proof to support his contention that he suffers from “physical, verbally and psychological abuse” from the M.  Nor was there any evidence or indication that he was stressed from the interim joint custody order that I made.  I therefore do not find his allegations at all credible.  It is my finding therefore, that there is no basis for F’s non communication with M, except for his own deliberate refusal to do so.

43.  F’s only affirmation on this issue talks about A’s daily life, where she lives, where she goes and about the time he spends with her.  And all that F says concerning sole custody is that he is involved with A’s day to day affairs, that he has a close bond with her, and that having access to her emotions enable him to make appropriate decision for her. 

44.  M spends all her weekends with A, I do not see that M has less access to A’s emotions or understands her daughter any less.  I take the view that the right approach is to look at the quality of the time a parent spends with a child and not the quantity, M’s bond with A is well documented in the SIRs. 

45.  In M’s cross examination of F, I take the view that M did establish that with her education background with a Master degree, she is more than equipped to assist A in her homework.  She also made a good point in that as a mother, she can give to A more advice and attention to her bodily needs, as she brought up the subject that A had some rashes in her sensitive area which F was not aware.

46.  It is clear that with both parents who evidently love A so much, and devoting their time to her, it is clearly in her best interest that both of them are engaged in making important decisions for her. It is also eminently clear, that such decisions made jointly would have to the advantage of different perspectives from both parents, which can complement each other.

47.  While F is intransigent in his position, the legal position is clear that the ability and right of a parent to make decision for a child is not proportionate to the time that parent spends with the child.  In this case, it is my finding that it is clearly in A’s best interest that she should have both parents making important decisions for her.

48.  I will therefore make an order that the parents shall have joint custody of A.

49.  At the hearing, F has clearly demonstrated that he understands the concept of joint custody, he is expected, in particular, to keep M fully apprised of any information concerning A’s school, including but not limited to term time diaries, school notices and events.  Furthermore, F is to keep M fully informed of A’s health situation, and not to expect M to find out for herself at some point of time after the event.

Regarding Access

50.  As for the access arrangement, I am touching on this here although this trial is meant for custody.  The SIRs recommend reasonable access.  But given the background of this case, I am of the view that the defined access now in place must stand to ensure a protection of the M’s time with A.

51.  This is not to say that for the rest of time, the parents are not to discuss further access arrangement subject to early notice.

52.  M’s access should also be uninterrupted as this is the M’s time with A, nor is there to be any extra curricular actives booked into her time without discussion or agreement from her.

53.  I am also making an order that F’s remote access to speak to A when she is with M is limited to one time a day if it’s a half day, and twice daily if it is a full day.  So translating this into the weekly access, F can call to speak to A once on Friday evening, twice on the Saturday subject to discussion on timing with M, and one time on Sunday morning before A leaves M’s residence to return home.

54.  For longer access time either over the longer holidays or time away from Hong Kong, the parent who is not with A shall have remote access once a day, with both parents agreeing beforehand as to the timing of the contact.  

Costs

55.  Due to the nature of the hearing, I will make no Order as to Costs.

Order

56.  I there make an Order that:

a.  The parties shall have joint custody of A. 

And I further DIRECT that a copy of the Order shall be given to the school that A attends, and the Petitioner father is to facilitate Respondent M to be on the school system so that she can be duly informed of all school matters.

b.  The Petitioner father do continue to have the care and control of A per the Order dated 26 August 2024.

c.  The Respondent mother shall have defined access to A per the Order dated 26 August 2024; and other access as shall be agreed between the parties.

d.  There shall be remote access as follows:

i.    During the term time, when A is with Respondent mother, Petitioner father shall have remote access to A one time during a ½ day access, and twice during a full day access subject to prior discussion with the Respondent mother on the timing.

ii.   During the term time, when A is with Petitioner father, the existing arrangement whereby the Respondent mother contacts A via the domestic helper shall continue.

iii.  During the parties’ longer access time including holiday time in Hong Kong or away from Hong Kong, the parent not with A can have one remote access call a day subject to discussion on timing with the other parent. 

e.  A Section 18 Declaration to issue.

57.  I make no Order as to Costs for these proceedings.