HWY v. LCS

FCMP 201/2018

[2021] HKFC 126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 201 of 2018

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J U D G M E N T

(Care and Control)

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1.  The Respondent Father (“F”)  asks for (i)  parental rights and authorities, (ii)  joint custody, (iii)  care and control of the three children who were born in the relationship with the Applicant Mother (“M”)  and M opposes only in relation to care and control.

Background of the case

2.  F was born in mainland China and came to settle in Hong Kong at the age of 12.  He graduated from a university in Hong Kong and is now 50.  Since 2011, F has been a civil servant working for the Leisure and Cultural Services Department.  Sometimes he also works part-time with the Agriculture, Fisheries and Conservation Department.

3.  M was born in Hong Kong and after finishing her secondary education, she took an evening course and managed to obtain a Diploma in Commerce.  After working some odd jobs, M became a full-time housewife since July 2015.

4.  M had a previous marriage and upon her divorce, the only son of that family (“the eldest son”)  has been taken care of by M’s maternal uncle-in-law (姨丈).  According to M, the eldest son is now 23 and is pursuing a Degree in Architecture in Hong Kong.

5.  The parties met each other in their workplace in 2001 and after courtship for half a year, they cohabited at F’s public housing unit in Tseng Kwan O.  The eldest daughter (“the eldest daughter”)  was born in May 2010, the younger son (“the younger son”)  was born in July 2015 and the youngest daughter (“the youngest daughter”)  was born in November 2016.

6.  Soon after the younger son was born, M together with the two children moved to live with F’s mother (“the paternal grandmother”)  so that the latter could assist in looking after them and providing M with post-natal care.

7.  About half a year later, M together with the two children moved back to live with F.

8.  Since the youngest daughter’s birth, the parties’ relationship deteriorated so that M and the three children moved back to live with the paternal grandmother.  Whereas the paternal grandmother would look after their meals, M remained the main carer of the children.

9.  Subsequently, M rented a unit in Quarry Bay and just prior to this trial, she was assigned a public housing unit at Yiu Tung Estate.  M remains the main carer of the three children.  Financially, M is on CSSA and also receives a monthly maintenance of HK$7,500 from F.

10.  Despite what was said in the Social Investigation Report (“SIR”), which I will set out in paragraph 17 of this Judgment, the parties agreed that since around the end of April this year, i.e., a few weeks before this hearing, F has been having access every day from around 7 p.m., when he finishes work, until 10 p.m., when F will take the children back to M at Sai Wan Ho MTR station.  When F has his days off, he also has staying access with the children.  As the parties claim that the recent access has been taking place without any difficulties, F asks for reasonable access including staying access if he loses his case on care and control.  M agrees to that.

11.  Therefore, the only outstanding issue is whether M or F will have care and control of the three children.

The law

12.  There is no dispute that the main provisions regarding children can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of 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;”

13.  The general principles governing such applications are set out in section 3 of Cap 13, which states 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 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;”

14.  In H v N [2012] 5 HKLRD 498; it was stated by Hon Poon J,

“D3.3.  Use of “the welfare checklist”

26. In assessing the best interests of the minor, the court must have regard to all the relevant factors.  Section 3(1)(a)  has only prescribed two specific factors that the court must have regard to: (a)  the minor’s views, if having regard to his age and understanding 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.  I will return to the minor’s views and the social welfare report in a moment.

27. In recent years, when applying the welfare principle under section 3(1)  of the GMO, judges in the Family Court [5] have consistently adopted the matters specified in section 1(3)  of the English Children Act 1989, which have now come to be known as “the welfare checklist”.  Those factors are:

“(a)  the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding)

(b)  his physical, emotional and educational needs

(c)  the likely effect on him of any change in his circumstances

(d)  his age, sex, background and any characteristics of his which the court considers relevant

(e)  any harm he has suffered or is at risk of suffering

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

(g)  the range of powers available to the court under the 1989 Act in the proceedings in question.

It has more or less become a standard practice in the Family Court in cases involving children to make use of “the welfare checklist”.

28. I endorse this practice, but with three caveats.

29. First, absent any statutory underpinning in the GMO, our courts are under no duty to have regard to “the welfare checklist”. In other words, it is not compulsory to do so. Whether a judge may wish to make use of it and if so how is entirely a matter for him. For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him. As long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticized for not expressly applying the checklist or not going through all the factors one by one.

30. Second, when applying the checklist, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one. [6] Otherwise the task will become too onerous unnecessarily.

31. Third, “the welfare checklist” is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account: London Borough Southwark v B [1993] 2 FLR 559, per Waite LJ at p.573B-C. It is not meant to be exhaustive. Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

32. Subject to these caveats, I think judges are at liberty to make use of “the welfare checklist” in the way that best suits the need of the case before the court for the purpose of assessing the best interests of a minor.”

15.  In the case of LACHY v YC [2019] HKFC 152, HH Judge Melloy also set out:

“List of factors

15. In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility)  Bill. Although this list of factors has yet to find its way into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control, access, joint care and control/shared care and access and the best interests of children generally. The checklist states that the following matters should be taken into account by the court when determining matters of this nature:

(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.”

16. It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire for the court and that it can assist in the decision making process.”  

Social Investigation Report (“SIR”)

16.  There is only one report prepared by Mr Chan, dated 23 September 2020.

17.  In the SIR, Mr Chan recommended that: -

(a)  Joint custody be to the parties with care and control to M;

(b)  F do have defined access as follows: -

(i)  Weekly access from 10 a.m. to 9 p.m.;

(ii)  For twice per month, the above weekly access shall be staying access from 10 a.m. to 9 p.m. on the following day;

(iii)  Telephone access on daily basis including voice calls, video calls or Whatsapp;

(iv)  Daytime access on F’s birthday, the children’s birthdays and Father’s Day from after school or 5 p.m. to 9 p.m.; and 

(v)  3 days’ staying access for each of the 4 school holidays, i.e., Christmas, Chinese New Year, Easter and summer vacation, from 10 a.m. on the 1^st day to 9 p.m. on the 3^rd day.

Wishes of the children

18.  The eldest daughter stated that she likes the status quo, i.e., living with M, brother and sister.  She said that she likes her mother’s cooking and dislikes the takeaways F bought her because she thinks they are unhealthy.  She considers her mother the best person in the world. The eldest daughter also said that she likes her father and does not mind having staying access at F’s home.  Although she said that her relationship with the paternal grandmother is so-so, she does not mind visiting her.

19.  The younger son said that he likes M the most and he also likes to play with his siblings.  He said that he likes to ride bicycle with F.

20.  The youngest daughter is too young to express her views but she said she likes to live with M and her siblings[1].

Documents submitted by the parties

21.  Apart from the Form J filed by the parties, there are altogether 4 Affirmations filed by F in support of his case:

i)  1^st Affirmation filed on 7 July 2020 (“F’s 1^st Affirmation”);

ii)  2^nd Affirmation filed on 5 October 2020 (“F’s 2^nd Affirmation”);

iii)  3^rd Affirmation filed on 4 November 2020 (“F’s 3^rd Affirmation”);

iv)  4^th Affirmation filed on 5 January 2021 (“F’s 4^th Affirmation”):

22.  As for M, she has filed 3 Affidavits which are relevant to the present proceedings:

i)  3^rd Affidavit filed on 16 September 2020 (“M’s 3^rd Affidavit”);

ii)  4^th Affidavit filed on 2 November 2020 (“M’s 4^th Affidavit”);

iii)  5^th Affidavit filed on 11 January 2021 (“M’s 5^th Affidavit”).

F’s grounds for his application and M’s reply

(i)  M’s inadequacy in the caring of the children because she has low moral standard

23.  F alleged that shortly before the birth of the youngest daughter, he accidentally found out from M’s mobile phone that she had provided sexual service to others so as to obtain monetary gain.  In F’s 2^nd Affirmation[2], he said that from the exchange of messages between a male and M, he could see that,

(i)  upon request of that male, M provided a photo which she had taken with her elder daughter;

(ii)  that male mentioned that one of his female acquaintances had disappeared and M asked whether it was at that place;

(iii)  thereafter that male transferred a sum of HK$1,000 to M;

(iv)  M told that male a few days later that she had urethritis (尿道炎)  and that she asked that male to give her more money;

(v)  though that male was initially unwilling to, he subsequently transferred another HK$3,000 to M (“the conversation”).

24.  F therefore said that he had every reason to believe that it was no causal talk between ordinary friends.  M is thereby not a suitable carer.

25.  M on the other hand strongly denied that.  She said that in the beginning of the cohabitation before the eldest daughter was born, she did work as an accounting clerk in a firm (“the firm”).  After the eldest daughter was born, she worked part-time at the Jockey Club.  It was only after the birth of the younger son that she suffered from pelvis injury (盤骨傷患)  that she stopped working altogether.

26.  M said that that male was in fact a former colleague of the firm that she worked for.  In or around 2014-2015, she and that male made causal enquiry about each other’s recent situation.  M therefore sent a photo of her taken with the eldest daughter.  That male even asked her out for a gathering to catch up with each other but it never materialized.

27.  M said that upon F’s discovery of the exchange of conversation, he was so angry that he took away her mobile phone immediately and never returned that to her.  M said that not only did their relationship turn extremely bad, F even suspected that the two younger children were not his. As the children were living at the paternal grandmother’s home at the time, F refused to talk with and visit them.  Even on his rare visit, despite the younger son’s happily addressing him ‘daddy’, F would ignore him, which M said that was heart-breaking.

28.  In February 2017, in order to ease F’s suspicion, M voluntarily offered to conduct a DNA test on all three children and it was confirmed that F was indeed the natural father.  Despite that however, F resumed only minimal contact with the children and was very hostile towards M and adopted insulting language with M.

29.  M also said that since then F had been distancing himself from the children.  Moreover, not only did he fail to pay her any maintenance, he also repeatedly asked her and the children to move out from the paternal grandmother’s home. As she had not the means to do so, she could only remain there despite the hostilities displayed by the paternal grandmother.

30.  M said that she and the children were forced to leave the paternal grandmother when the latter claimed that her home would undergo renovation and F packed all their belongings into a few nylon bags.

Discussion

31.  Although F’s allegation that M had an affair is part of the history, I found that F is still very mindful as to his suspicion. In Court, he still insisted that his version is correct.  M in her oral testimony said that she could not recall the details of the conversation nor could she produce any evidence to counter F’s allegation because her phone was never returned to her.  She however strongly denied any wrongdoing. 

32.  Although F did not produce the record of such conversation either, I noticed that in paragraph 2 of F’s 2^nd Affirmation[3], F said that the conversation was the only conversation he could see, he therefore had every reason to believe that it was no causal talk between friends. (另據我所見, 申請人與該男士只有以上的對話, 而沒有其他對話內容, 所以我更有理由相信, 上述對話並非單屬朋友的一般對話。)

33.  For my part, F seemed to have fixated on what he believed.  M strongly denied that she had ever provided sexual service or had any relationship with that male.  M explained in her oral testimony that she only tried to borrow money from her former colleague at the time.  When asked why she did not borrow money from F or other relatives, M said it had always been difficult to get money from F.

34.  I believe that.  Even F admitted in his 2^nd Affirmation that he did not pay any money to M for their maintenance since the end of 2016 but he gave different reasons to justify his non-payment.  He said that,

(i)  he had lost confidence in M since his discovery of the conversation;

(ii)  M and the children were living at the paternal grandmother’s home; and

(iii)  M was made bankrupt in 2002.

35.  F therefore said that he paid the paternal grandmother instead.

36.  In my view, M and the children at the time only had the support of a roof, food and the household items provided for by the paternal grandmother.  How were they going to survive if they had no money to pay for items such as transport, haircut and clothes, etc.?

37.  According to the SIR, F is earning HK$26,000 plus income from his part-time job, which he said he earns HK$1,000 daily, making a total of approximately HK$30,000.  He is also living in a public housing unit and is paying rent in the sum of HK$1,500 only.  From the Court’s record, M first came to the Family Court to ask for maintenance for the three children on 27 September 2018, stating that F failed to pay anything for the support of the children since the beginning of 2017.  Nonetheless, F failed to turn up at the hearings on 13 November 2018, 22 February 2019, 15 March 2019 and 18 April 2019.  On 18 April 2019, having been satisfied that the service of the Originating Summon together with the supporting documents was good, Deputy Judge D To ordered that F do pay to M a sum of HK$7,500 for the maintenance of the children commencing from 1 June 2019 (“the Order”), and Deputy Judge D To also fixed the hearing for 17 July 2019 so as to enable F to make opposition to the Order.

38.  In the meantime, M made an application for an Attachment of Earnings Order, which Deputy Judge To approved at the hearing on 17 July 2019 in F’s absence.  When the hearing was further adjourned to 4 November 2019, F was once again absent.  While I made a continuation of all the terms in the Order and set the case down for trial, F eventually appeared on 6 March 2020.

39.  As seen, it was only by way of Court proceedings that F keeps paying HK$7,500 per month for the support of the three children, but that is grossly inadequate.  Even the Social Welfare Department has allowed HK$9,000 – 10,000 per month to M as her public assistance.  

40.  As F is a civil servant and has always lived in his public housing unit in Tseng Kwan O, I have every reason to believe that F had been evading service. I therefore have no doubt as to what M said.

41.  I do not believe that M had provided sexual service to obtain monetary gain.  I find that she only borrowed money from her acquaintance.

(ii)   M’s financial situation is not good

42.  F accuses M of having no employment and relying on public assistance.  Furthermore, he said that M had once declared bankrupt and therefore for the best interests of the children, she is not a suitable carer.

Discussion

43.  It is no doubt that M is on CSSA and also receives HK$7,500 from F as children’s maintenance, whereas F is a civil servant with a steady income.  But with the greatest respect, if F indeed thinks that M’s financial situation is not good, he should provide more financial support for the best interests of the children.

(iii)   M’s educational standard and other abilities is not capable to look after the children

44.  In F’s 3^rd Affirmation, he said that he had worked with different private institutes and various government departments.  With his continuous learning (不斷進修), F believes that he is the better carer for the children.  When F gave his oral testimony, he kept on repeating that he could teach the elder daughter Maths and he could guide the children to swim and ice-skate so that their skills have become much better since he has more access recently.  F said that he could teach the children homework and he said in his oral testimony that the eldest daughter also asked him Maths problems during his access recently and he was capable of answering them.  F also thought extra-curricular activities are important.  When the eldest daughter was small, F said that it was him who taught her how to swim and ice-skate. He said that he has a lifesaving (拯溺)  certificate and with his experience in teaching others to swim, he could provide better support for the children[4]. Furthermore, he is also an arboriculturist (樹藝師).  During the holidays, he will take the children to the park or outskirts for leisure and learning.  He also keeps on taking further studies (不斷進修)  whereas M is only a secondary school leaver.  He therefore considers himself the better carer.

45.  M on the other hand said in her 5^th Affidavit that she also possesses a lifesaving certificate and she said that the fact that F has a better educational background, wider working experience and better swimming skills does not mean that he is a better carer. 

Discussion

46.  It is not in dispute that F is a university graduate and yet, I agree with what M said.

47.  In the SIR, Mr Chan said that from the 2^nd term of the school report in the year of 2019-2020, it is stated that the eldest daughter achieved an average score of 76.82 and the school considered her positive in character and eager to contribute (樂觀開朗, 熱心服務).  In extra-curricular activities, she was a member of the senior orchestra, Western National Dance, junior choir, and school prefects (高級管弦樂團、西方民族舞團、初級合唱團和風紀).  She has also received numerous awards from outside school competitions (在校外比賽獲得多個獎項, 全年共獲得2個小功和1個優點)[5].

48.  For the younger son, Mr Chan also said that from the school report in the 1^st term of 2019-2020, it is stated that he managed to obtain Satisfactory, Good and Outstanding in academic and other performance (在學習範疇或表演項目大部分都評為表現滿意、良好及優異).  His school attendance record is also good (上課出席情況也理想)[6].

49.  Since both parties in this case have no dispute that F did not see the children for slightly over a year, from July 2019 to 7 August 2020[7], but only dispute as to the reason why, my view is that looking at the school reports, credit must be given to M for her efforts.

50.  It is my finding that despite F’s having a better educational background, wider working experience and other abilities, M is more than capable to look after the children.  In any event, if F believes that he can assist, he can do so during his access time.

51.  In this regard, Mr Lo representing M submitted in his Reply Submissions that,

“ 7. F only participated in the children’s activities after his working hours. Due to his work (i.e. 9 a.m. to 6 p.m., working 5-6 days a week), F can only spend limited time with the children. It fits the children’s daily schedule much better for F to have access to the children after work, while the children can remain in M’s care for the rest of the day. The children can enjoy the best of both worlds – F can accompany the children after work to attend their ECSs, while M can continue to be in charge of the children’s daily living and routine.”

52.  I agree in its entirety.

(iv)   F has doubt as to whether M is capable of looking after the children

53.  F queried whether M has adequate support in the caring of the children as she had entrusted the care of the elder son from the previous marriage to her maternal uncle-in-law (姨丈).

54.  M on the other hand said that the elder son has always been loved by the family of her maternal uncle-in-law.  When she was having the breakdown of her marriage which she felt helpless, it was her maternal uncle-in-law’s family who offered to assist to look after the elder son.  M said that she feels blessed and is grateful because her maternal uncle-in-law’s family has provided a comfortable living environment for her elder son, whose academic results have always been outstanding.  M said that she always visits the elder son when she finishes work and after the birth of the eldest daughter, she was also taken to her maternal uncle-in-law’s home for day care until M finished work.  Her bonding with the eldest son has always been strong despite F’s dislike for him.

55.  M also said that after she and the children had been driven out of the paternal grandmother’s home, they also temporarily lived at her maternal uncle-in-law’s home and the relationship between the eldest son and his half younger siblings became even closer.  After they moved to the rented flat, the elder son regularly visited them once a week for dinner and to play with his half-siblings.

56.  I believe M’s evidence.  M mentioned in her oral testimony that since they had moved to the public housing unit, the elder son would come once a fortnight to stay there to play with and teach his half-siblings and it stopped only recently because of his examination.  That part of the evidence is not challenged.

F’s children care plan

57.  With regard to his care plan, F said in his 1^st Affirmation that he could entrust the care of the three children to the paternal grandmother whilst he is at work and he could also hire a foreign domestic helper.  In his 2^nd Affirmation, he said that if care and control could be granted to him, the three children could either live with him or temporarily live at the paternal grandmother’s home until he could be allocated a bigger public housing unit.

58.  With the greatest respect, F’s public housing unit is too small to accommodate the three children plus a domestic helper.  In the SIR[8], Mr Chan sets out the condition of F’s unit,

“15. 該單位有17平方米單位…設有廚房和廁所, 沒有廳房間隔, 只有簡單的裝修, 地上沒有鋪設地磚或地板。室內放置兩張雙格床、一個高身衣櫃及數個矮身儲物櫃、數張圓櫈, 單位活動空間相當有限。除了一部滑板車和數個膠公仔外, 家中沒有其他玩具和當事兒童的照片。家訪當天, F表示冷氣機壞了, 只有兩把風扇。單位有一排大窗及裝上安全窗花、空氣尚算流通, 光線尚可, 但家中存放較多的雜物, 故家居環境較為狹窄和雜亂。”

59.  With regard to the assistance of the paternal grandmother, Mr Chan said in the SIR[9] that the paternal grandmother is already 78 and is living with another granddaughter who is 8. Although she supported the three children to live there temporarily so that she could assist the foreign domestic helper to look after them, if she were to look after them in the long run, she would find it strenuous in view of her old age.

60.  Mr Chow representing F submitted in his Reply Submissions that “there is no indication that the paternal grandmother is unwilling or unable to help take care of the children. Indeed, in the past, the paternal grandmother had played a significant role in the caring of the children before M took the children away.[10]”

61.  With the greatest respect, I disagree.  Even Mr Chan in the SIR came to a different conclusion after his interview with the paternal grandmother.  He said that since the eldest daughter’s birth in November 2016, M and the children had been living with the paternal grandmother until July 2019.  The paternal grandmother said that she was responsible for the meals and household chores whereas M was the main carer of the children[11].

62.  I therefore find that F’s proposed arrangement on the three children is not feasible.

63.  As to M’s capability to look after the children, Mr Lo representing M in his Opening Submissions submitted that,

“17. M’s capability in childcare was reported in the SIR and corroborated by various third parties including the teachers of the children’s school and kindergarten and the social workers from the eldest daughter’s school and the integrated family service centre[12]. M has been doing a commendable job in single-handedly taking care of the children for years. M prepares 3 meals a day for the children; the children are observed to be tidy and punctual in attending schools, and M has always accompanied the children in attending online lessons. The interaction between M and the children were intimate, natural and warm-hearted[13].

18.  M should be particularly praised in actively seeking help whenever she has emotional or childcare needs.  It is not difficult to imagine the pressure and stress on M.”

64.  I agree in its entirety. I will grant care and control to M.

F also accuses M of not allowing the paternal grandmother to exercise access on the children

65.  In Court, M also confirmed that because of her past experience when she lived at the paternal grandmother’s home, she had such genuine concern that she would not let the children go to the paternal grandmother’s place for access purpose.

66.  In M’s 3^rd Affidavit, she said,

“15. 在2017年至2019年7月本人居於答辯人母親之居所期間, 答辯人的家對本人及三名子女一直存有芥蒂, 以致他們與本人及子女相處一直都不太融洽。大女一向被答辯人母親及親戚針對, 而答辯人及其母親亦經常對三名子女不瞅不睬。.

17. 在本人向答辯人提出本案申請子女生活費後, 答辯人之母親針對本人及三名子女之行政便開始加劇。答辯人之母親時常直接或透過他的外孫說我們是他的負累及陀衰家, 更曾當面問本人及子女何時可以搬走。即使本人一直忍讓, 她的行徑則變本加厲, 曾發脾氣踢本人的房門, 令身處房間的本人及三名子女受驚。[14]”

67.  The eldest daughter also told Mr Chan that her relationship with the paternal grandmother is so-so but she does not mind paying visit to her.

68.  In Court, M said that she still has fear about the children having access at the paternal grandmother’s home but she does not mind her presence during the access time provided it does not take place at the paternal grandmother’s home.

69.  For my part, I can understand M’s worries.  If F had indeed at sometimes suspected that the children were not his, given that the children and M were living at the paternal grandmother’s home, one can imagine how stressful the atmosphere would be.  Even F admitted that the relationship between M and the paternal grandmother is not good[15].  However, after M and the three children moved out in July 2019, i.e., around 2 years ago, I think it is time for access to take place at the paternal grandmother’s home for the following reasons:-

(i)  The paternal grandmother’s home is nearby M’s home and F could take the children there to teach them homework;

(ii)  The paternal grandmother’s home is bigger than that of F’s;

(iii)  The paternal grandmother can cook whereas perhaps F has no time and could buy the children takeaways;

(iv)  Despite M’s objection, she heard from the eldest daughter that F had indeed taken the children to the paternal grandmother’s home for access at least once.

70.  I trust that the relationship was tense when the children and M were living at the paternal grandmother’s place.  However, if the children see the paternal grandmother on access time only and in the absence of M, I believe the relationship may not be that bad as M imagines.  After all, the paternal grandmother is 78 already.

Order

71.  The Respondent do have parental rights and authorities.  There be joint custody with care and control to the Applicant.  The Respondent do have reasonable access including staying access which can take place at his mother’s home.

Costs

72.  For children’s matter, the approach to costs is succinctly summarised by Chu J in LCH and JMC [2019] HKCFI 251:

“10. It has been long recognised that in children matters, the general practice is that there be no order as to costs. In TPL and WYY, CACV 47/2014 and CACV 61/2014, unreported, 15.12.14, the Court of Appeal has set out the relevant principles that should be taken into account when considering if a cost order is appropriate in applications to do with children. As pointed out by the Court of Appeal, the approach that in applications to do with children, the usual order should be no order as to costs stems from the aspiration that in these applications, the court is seeking to find an arrangement which is best for the children, and that the rationale is that when a court considers custody and care and control of the children, the proceedings are inquisitorial rather than adversarial.”

73.  Accordingly, there be no order as to costs save that the Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.