W v. W

FCMC11676/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11676 OF 2002

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Judgment

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1.  In the present case both parties having agreed to an order for joint custody of the two children of the family.  They now respectively apply for care and control of the children. 

2.  The issue before the court is therefore who, that being the Petitioner, mother or the Respondent, father is to be granted the care and control of the children.  For easy reference I shall refer to the Petitioner as the mother and the Respondent as the father.

3.  Recognising that the children’s time will now be shared between them, the parents agree that the children should not be shuttled back and forth between both parents’ respective houses during the weekday so as to cause as little disruption to them as possible.  They therefore agree that in future the children should spend the weekdays at one parent’s house and spend the weekends at the other parent’s house, save that that parent who has the children at the weekend should also have one mid-week dinner with the children.

4.  The parties respectively apply for the children to reside with them during the weekdays and the other during the weekend.

Chronology

5.  The parties married in Hong Kong on the 18th December 1994.  At the time of the marriage the father was aged 32 and the mother was aged 28.  On the 23rd March 1996 their son T was born, two years later on the 3rd June 1998 their daughter N was born.  Nearly eight years later on the 12th October 2002 the mother moved out of the matrimonial home.  The father and the two children remained living there.  As a result of the breakdown of their marriage, the mother filed her petition for divorce on the 10th October 2002 on the grounds of the father’s unreasonable behaviour.  The father filed an answer in his defence to the petition and a cross-petition on the grounds of adultery on the 15th May 2003.  A decree nisi of divorce has not yet been pronounced. 

6.  Although both parties concede that throughout their married life quarrels and altercations were frequent amongst themselves, they rely upon different accounts as to why they eventually lived separate from each other.  The mother says she left the matrimonial home as a result of her intolerance of the father's repeated violence upon her whilst the father says the mother left the matrimonial home as she was having an extra marital affair.  For the purposes of this hearing it is not incumbent upon me to make a finding as to why the parties separated save that ultimately due to unhappy differences the mother left the matrimonial home.  

Court Applications: -

7.  After the filing of the petition for divorce by the mother, there have been a number of applications made to the court.  The start of these being the mother’s application for a non-molestation order against the father on the 27thDecember 2002.  In respect of that application the father gave an undertaking to the Court not to molest, disturb and harass the mother.  Some three months later on the 12th March 2003 the mother applied ex parte on notice on an urgent basis for interim custody care and control of the children.  On that same day an order was made by consent that interim joint custody of the two children of the family be granted to the mother and the father.  The order also defined the mother’s access to the children.  

8.  Access as set out in the order of 12 March 2003

The interim terms of access provided by the order was that the mother was to have access to the children after school on Wednesday, Thursday and Friday at her home until 4.45pm when they then returned to their father’s home.  On Fridays the children would be returned to the mother’s home at 7.45pm and stay there with her until Monday morning before school. 

9.  That order was varied on the 23rd May 2003 to the effect that the father was to have access to the children on every alternate Sunday from 12 noon to 7.00pm commencing on the 1st June 2003.

Background of the mother

10.  The mother was born in Hong Kong.  She completed her primary and first two years of secondary school in Hong Kong.  She then went to boarding school in England.  She obtained a degree in the United States of America.  After returning to Hong Kong she qualified as a solicitor in 1990.  She practised as a solicitor until 1997 when thereafter she stopped working for two years to take care of her two young children.  After returning to practice for one year in 1999 she ceased practise and changed employment to become Head of Personal Shopping at S company a department store.  She remains in the employment of S company until today.

Background of the father

11.  The father was born in Hong Kong.  He completed all but three years of his schooling in Hong Kong whereupon he spent the upper school years in a high school in the United States of America.  He obtained a degree in computer engineering and furthered his qualifications in obtaining a Master of Business Administration from an American university.  He returned to Hong Kong in 1991 and worked as a banker until 1996 when he joined his father’s business.  After closing down his father’s business, he joined a China company as a director in 1998 and continues to work there today. 

The children

12.  T is now aged 7 years.  He is presently studying primary one at a primary school in Macdonnell Road.  He previously attended Braemar Hill Nursery School.  N is now aged 5 years she is studying K2 at Shen Kung Hui Kindergarten.  When she completes her kindergarten, she will be joining her brother at his primary school in September of 2004.  

The parties and the children during their marriage

13.  The parties’ matrimonial home is in the Mid-Levels.  It is spacious and luxurious.  They resided there with their two children and domestic helpers.  As the parents were both working and had fairly busy social engagements such as being out for dinner at least 3 nights a week, the domestic helpers took up much of the child care.  Inevitably, the parents spent more time with the children on the weekends than on the weekdays. 

14.  Since 2000 the mother spent many of the weekends working.  During the weekends the helpers would take the children to visit her at work.  She and the children would either wander around Pacific Place, spend time in her office or go to Hong Kong Park nearby.  Otherwise at weekends the father would take them boating, to friends houses or recreational clubs to play.  The family had meals together on Saturday evening, Sunday lunch and Sunday evening.  The maternal grandmother would join them for these meals at the weekend.  Sunday lunch was often spent dining with the maternal grandmother, the maternal great-grandmother and relatives.  The mother, children and maternal grandmother would go to church on Sunday evenings.  The father did not attend mass but would drive them and collect them from church.

15.  In this household, from the time the children were born up and until today the parents always had assistance in childcare.  Having little time with the children on weekdays they relied on others for assistance in relation to the daily care of their children.  This assistance was provided either by the domestic helpers, private tutors and or the maternal grandmother.

16.  The children their parents and the domestic helpers together also took many family holidays abroad.

17.  T and N each have their own domestic helper assigned to look after them individually.  A driver is employed to ferry the children about.  As an example, the domestic helpers were the ones who: - 

(i)	prepared the children for school in the morning, they took and collected them to and from school;
(ii)	escorted the children when they went for any extra curriculum activities outside of their school hours,
(iii)	regularly accompanied the children even when their parents took them for outings,
(iv)	prepared their meals, fed and assisted in their bathing.

18.  When T was born the parents hired Ms. A a special maternity helper, apart from her they also had the assistance of domestic helpers.  Aside from the hired help, the maternal grandmother also gave a helping hand.  The maternal grandmother had resided with the parties and children for some six months from December 1997 to June 1998.  As the children grew older and began their schooling private tutors were hired to assist them in their educational needs.  The parties and maternal grandmother filled in and assisted on the remaining and other aspects of the children’s welfare.  The parents would have a very small window of opportunity with their children in the weekday.  In this time they either supervised their homework, read stories to them or watched videos with them.

19.  This kind of family set-up is not uncommon particularly among the more affluent families in Hong Kong. 

Present status

20.  The children continue to reside at the matrimonial home with their father and the domestic helpers during the weekdays.  They spend the weekends with the mother and the maternal grandmother. 

21.  The paternal grandparents own the matrimonial home.  It is a large flat measuring about 280 square metres.  The children each have their own bedroom and bathroom which they share with their respective helper.  The children are taken and collected from school by their domestic helpers and driver.  Living so close to T’s school he usually walks to school.  Now, the father frequently collects them from school and thereafter he returns to work.

22.  The mother resides in a two-bedroom flat also in the Mid –Levels. Up until the time of trial she did not have the assistance of a domestic helper.  She has however hired one and she will commence work with her soon.  She and her mother at present look after the children themselves.  At the mother’s home T and the maternal grandmother share a bedroom whilst N and her mother share hers.  The mother relies on the father’s driver and domestic helpers to collect and return the children from her home to the former matrimonial home.  The father drives the children to school on Mondays from the mother’s home as the driver does not start his work early enough.  Even though the mother’s house is only a five-minute car journey away from T’s school it is too far for T to walk.

The law

23.  The term “care and control” is not found in the ordinances but is a term well recognised when an order for joint custody is made.  It is an order made consequential upon a joint custody order as it is necessary to identify one parent who will be mainly responsible for the daily up-bringing being the day to day matters of the child. 

24.  Although the issue before the court is one of care and control of the children and not custody the court must still make such order as it thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parties.  Under Section 3 of the Guardianship of Minors Ordinance Cap. 13 (GMO) the court is required to regard the welfare of the minor as the first and paramount consideration.  The matters to be taken into account when considering the welfare of the minor are not specified and are many and varied depending on the circumstances.  A useful checklist is set out in section 1(3) Children Act 1989 (UK).  They are the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); his physical, emotional and educational needs; the likely effect on him of any change in his circumstances; his age, sex, background and any characteristics of his which the court considers relevant; any harm he has suffered or is at risk of suffering; 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.  This checklist is not exhaustive but is useful in assessing a custody and similarly in a care and control issue. 

The Evidence

25.  Despite lengthy affidavits filed into court by the parties and other witnesses, the trial took place over a period of 12 days.  Much of the witnesses’ oral evidence adduced was fairly short save that the mother was searchingly cross-examined by Ms. Lau counsel for the father over a period of four days.  The remainder of the trial was taken up with the oral evidence of the parties and seven witnesses.  The witnesses called to give evidence for the mother were a friend, a colleague, a kindergarten teacher of T and the maternal grandmother.  On behalf of the father he called three domestic helpers.  A social welfare officer also gave evidence.

26.  I have carefully considered all the evidence and submissions adduced before me.  The social investigation report is of great assistance to the court.  The social welfare officer has had the opportunity of seeing and interviewing the children and the parties concerned.  However, it is to be remembered that such reports are in no way conclusive but used just as an aid to assist the Court in arriving at a decision.

27.  The underlying factor common to both parties opposition to the other’s application for care and control of the children is their allegation against each other that the other has had little involvement with the children.  They both allege that they have played a larger part in the children’s welfare and thus care and control should be returned to them.  The parties have also challenged each other's abilities and capabilities in having care and control on several grounds.  I shall not reiterate those grounds but will only refer to the more salient ones.

The mother’s case before separation

28.  The mother’s case is that she had been the children’s primary carer and therefore the care of the children should return to her.  It is her case that since the birth of the children she has been the person who has been attending to their daily needs.  She, as their mother, bathed them, changed them, fed them, read to them, comforted them, and dealt with all aspects in relation to their education such as dealing with schools, tutors and supervising homework.  She was also the one who took them to children’s parties, or to recreation clubs to play and took them to play with their friends. 

29.  The mother says the father had little to do with the children’s lives except that he would provide them with toys and obtain videos for them to watch.  He would rarely talk or chat with them, what talking he did do was only to discipline or correct them for their misbehaviour or mistakes.  At times he would be strict with T and smack him.  He would not reason or explain to the children their wrongdoings but would be quick to resort to physical discipline. 

The mother’s case after separation

30.  The mother’s complaint is that since she has left the matrimonial home the father has deliberately deprived the children of her daily nurturing.  This he has done unilaterally by ceasing and reducing her daily access to the children particularly on weekdays despite the court order for access granted on the 12th March 2003.  The mother says that the father has occupied T’s time with extra curricular activities during her access times thereby deliberately reducing her access.

31.  Although there is a defined access order it appears that the order is not followed to the tee.  The mother does not have access to the children as stipulated.  The father says this is so with agreement from the mother, yet, the mother says there has been no such agreement.  In any event, for the present time, the part of the order which is complied with is that the mother has regular consistent access to the children at weekends.

32.  The father has arranged a daily timetable for T which keeps him engaged for the majority of his day after school.  These range from two hours of private tutorial lessons, tennis, swimming lessons, kumon (maths lessons) and drama classes.  The mother protests against the heavy daily schedule the father has subjected to T, because this unnecessarily burdens T over and above his daily school day.  She says it does not provide for any rest time for him and thus causes him to be tired.  If he is tired then this must be negatively affecting his performance at school.  Moreover at the present time this also restricts her access.  Her concerns are that a similar timetable will be imposed on N when she commences her primary school in September 2004.  She submits that the children are too young to be enveloped in this burdensome schedule.  At their age they should be given more time for play and rest.

33.  The mother objects to and criticises the father for excluding her from the children’s education, as a result she has had no knowledge of their progress or programmes.  Having no schoolbooks she has not been able to supervise their homework.  Her rebukes against the father arise from the father’s deliberate prohibition of permitting her to view their schoolbooks and homework.  Despite repeated requests made by her to him and through her solicitors to his solicitors he has ignored such requests.  He has not obliged and has never handed over the children’s school bags or books.  She states that he has also kept her in the dark as to any key school events, such as not informing her of T’s parent teacher meeting and N’s school ceremony.  As for the parent teacher meeting she only came to know about that in the middle of the present hearing as the father had informed the court that he had unilaterally cancelled it with the school as it clashed with the court hearing.  As for N she had found out about it herself as she had overheard one of the other parents of the kindergarten referring to it.  None of which was forthcoming from the father himself. 

34.  Being deliberately kept from any information about the children’s schooling and bearing in mind T’s heavy schedule coupled with his disciplinarian manner of speaking to the children she submits that the father is not a suitable person to have care and control of the children. 

35.  The mother acknowledges that since she left the matrimonial home the father has undeniably changed his ways towards the children.  She has noted that he is spending more time with the children then he used to.  This can be seen by the father taking them to recreational clubs, accompanying them to and from school and engaging himself in more of their educational aspects.  She is given to understand from T that the father does not now resort to any physical disciplining of him.  It is the mother’s contention that this about face by the father is a deliberate show for the court so as to bolster his application for care and control.  It is her case that the father was never involved in nor did he take part in the children’s welfare and what he is doing now will not be everlasting.

 The mother’s proposals should she have care and control

36.  The mother will reside in her two-bedroom flat with the two children.  She will employ a domestic helper.  The helper will share the room with T and the maternal grandmother.  The maternal grandmother will assist the mother in childcare.  The maternal grandmother will reside with the mother on weekdays and also if necessary help train the new domestic helper to look after the children.  Should the mother be working or otherwise unavailable the maternal grandmother will assist in childcare. 

37.  She concedes that her house will not be as spacious as the former matrimonial home.  The children will no longer have their own bedrooms.  T, the domestic helper and the maternal grandmother will share a bedroom whilst N will share her room.  Nevertheless she submits the environment will be comfortable.

38.  She will continue working in the present job but will return home earlier so as to enable her to be with her children for a longer duration in the evening.  On her return home she will supervise their homework and spend time with them.  Although the children will continue to have private tutorials she intends to reduce them significantly and also reduce T after-school extra curricular activities.  Her plans are to provide the children with a weekday schedule such that they will not be tired when they go to school and yet provide them with sufficient rest and extra curricular activities.

39.  The children will be taken to school either by the domestic helper or the maternal grandmother either by taxi or with the assistance of the father's driver.  Until September 2004 there will inevitably be much ferrying between their schools but as the children will be attending the same school from September 2004, it will be easier to take and pick up the children from school.  The children will spend their weekends with their father.

40.  Her proposals are that as she is required to work at weekends and the father does not, it makes much sense that the children spend the weekend with their father than with her. 

41.  It is the mother's case that she will inform the father of all-important matters relating to school and will keep him informed about the children's school progress.

The father’s caseprior to the separation

42.  The father’s case is that the mother has not and has never been the primary carer of the children.  He states that she spent little time with the children and left much of the children’s daily care to third party’s, for example to domestic helpers, tutors, and her own mother (maternal grandmother).  He states that he took turns with the mother to take care of the children when they were in their infancy when the maid had day offs at the weekend.  He went on to say that he or the maternal grandmother would supervise the children’s homework.  He would also occasionally accompany the children to and or collect them from school.  At the weekends he would take them for outings such as boating and or going to a friend’s house to play and also take them to the clubs for fun. 

The father’s case after separation

43.  The father says he has legitimate concerns of the mother’s ability to care for the children.  He points to the fact that all along she has never done so but relied on the domestic helpers or her own mother. 

44.  He worries about who is to provide the physical care to the children.  He does not believe that the mother will be able to do so.  As the domestic helper she has or will employ has not had an opportunity of meeting the children or caring for them it is not known if the helper is capable of caring for two children.  He expresses unease of the mother relying on the maternal grandmother for assistance.  He says that the maternal grandmother is busily engaged in her own work and commitments and will not and should not be the person to look after the children.  As the situation stands now he says the maternal grandmother has a very heavy responsibility looking after her own mother who is ill.  He states all along the maternal grandmother has in fact looked after the mother as if she were a child.  In his evidence he said if the maternal grandmother looks after the two grandchildren as well “she will in effect be caring for three children not two” in addition to her own mother.  That he says is beyond her call of duties and ability. 

45.  With the limited assistance the mother has, he says she will be reliant on him to provide his helpers and or at least his driver for use of the children.  He has no objection in doing so but he says that that is not a suitable state of affairs.  He says they should remain at the matrimonial home where all the help is readily available.

46.  His observation is that her house is too small to accommodate everyone.  He asserts that they should remain at the matrimonial home which is more spacious.  He does not think the children should be living in such a cramped environment.  He says as they grow-up they will wish to have more privacy and they will be provided with this if they continue to stay at the matrimonial home.  He declares that all aspects of the matrimonial home are conducive to the children.  There they have their own bedrooms (though admittedly they share them with a domestic helper), bathrooms and writing desks.

47.  On the whole he says there is too much uncertainty if they move to live with the mother.  He submits that the status quo has been tested and is satisfactory and they should therefore remain where they are.

48.  The major difference between before and after separation is that now the father is spending more time with the children.  He has breakfast with them on most days before they go to school, he speaks with them about their day-to-day affairs and he is frequently taking and collecting the children to and from school.  He further takes them to the clubs for dinner as well as for recreation even on weekdays.  He is active in arranging the children’s extra curriculum activities after school and is involved in all aspects of the education.

49.  The father denies that he has deliberately excluded the mother from the children’s educational affairs.  He states that there was a misunderstanding between the domestic helpers and his directions to them.  He says that he told the domestic helpers that should the mother request to see the children’s schoolbooks or bag they should be handed over to her.  However as the mother had never requested the maids for the schoolbook or bag, they were never handed to her.

50.  As to the timetable set for T after school he says T is happy with the timetable and enjoys all the extra curricular activities save for the kumon maths class.  The father denies that this is a heavy burden on T and submits that it is not affecting his school progress.

51.  The father accepts that he is strict with the children and corrects them when they have misbehaved.  He refers to an incident during the interview with the social welfare officer in this case when the social welfare officer observed such a command.  He denies however to resorting to heavy and unreasonable physical punishment but when he did do so he would only smack them on their hands.

52.  It is of concern to the father that the mother is deeply involved with her boyfriend Mr. L.  As there is no evidence as to how he relates with the children or as to his character he submits that the children’s care and control should not be granted to the mother as it is not in their best interests to be involved with him.  Further as the mother will be preoccupied in spending a large majority of her time with him she will not have time for the children and hence neglect them.

The father’s proposals should he have care and control

53.  The father intends to maintain the status quo.  The domestic helpers will continue to provide physical care to the children and the driver will be at their disposal.  He will spend time with the children at breakfast prior to going to school and also take and collect the children from school as frequently as he can.  He will continue with the private tutorials that T and N have daily and carry on with the extra curricular activities.  He will return home from work at about 6pm and supervise their homework as well as spend time with them.

54.  The children will then spend the weekend with the mother.

55.  The father undertakes to ensure that in future the mother be kept fully informed of all school matters and school bags will be given to the mother whenever the children go to her.

The work schedule of the parties

56.  The father and the mother have flexible work schedules.  The father's workweek is from Monday to Friday.  He does not work at weekends.

57.  It is the mother's case that as she has to work on weekends therefore access to the children by her at weekends is not a feasible proposal.

58.  It was strongly submitted by the father that it was not essential for the mother to work at weekends.  I was drawn to statistics taken from the mother’s work sheet timetable from her company.  It was submitted that the mother had taken many weekends or at least one day of the weekend off during her employment with S company.  It was therefore submitted that it was a feasible option for the mother to have access to the children at weekends.

59.  In the mother’s work her employer sets a monthly financial sales target she has to meet.  So long as she sells merchandise of the amount as specified in the target she can maintain her employment.  There are no fixed hours set by her employer for her to be at work.  So long as she reaches the sales target per month she can work as many hours and whatever hours (in store opening time) as she likes.  Although the mother accepts that her work schedule is flexible and it is not essential for her to work on any particular day of the week, it is her case that the weekends are the busiest times for her and therefore for the good of her business she works at weekends.  It cannot be refuted from the evidence that upon joining S company, the mother has been required to work at weekends.  I recognise that it is not compulsory for her to do so, but I accept that that is the time when the mother is at her busiest as the clients prefer to shop at the weekend and the time when clients would expect her to be available.  This is an understandable choice the mother makes.

Witnesses

60.  I turn to consider the witnesses evidence.  Apart from the parties themselves, the most contentious witnesses in support of the parties respectively were the maternal grandmother who gave evidence for the mother and the domestic helpers who gave evidence for the father.  I shall deal with their evidence later in my judgment.

61.  Ms. A the special maternity nanny worked for the parties from T’s birth to March 1997.  Ms. S the domestic helper worked as N’s domestic helper from May 1998 to July 2000.

62.  The father did not strongly contend that he had much involvement with T’s teachers when he was in kindergarten.  He has not strongly asserted that he was the one who took the children to birthday parties.  The father confirmed in his oral evidence the evidence given by Ms.A and Ms. S, of the mother’s role in the children’s lives when the children were in their very early years.  I accept the evidence adduced by the mother’s witnesses of her friend Ms.M; T’s kindergarten teacher at Braemar Hill; Ms W, her colleague Ms.C; Ms.A and Ms.S as to the role taken by the mother and her relationship with the children.

63.  In summary, I find from the evidence before me of those witnesses that the mother played a significant role in the children’s affairs.  From the time they were born she was tending to their general needs including feeding and bathing.  In respect of the time when T’s was attending kindergarten, the mother was the one who was foremost in communications with the school and his teacher.  She was the one who went to the parent teacher meetings.  There was little participation by the father.  For their social engagements such as birthday parties she was also the one who took them to these.

The evidence of the domestic helpers

64.  The evidence from the domestic helpers and the maternal grandmother made reference to wholly different roles played by either parent.

65.  Two of the domestic helpers called (J and M) are presently working for the father.  The third helper G was in the employment of the mother for a short period of time from 6 March 2003 to 20 May 2003.  She is presently unemployed. G and M are sisters of Filipino nationality.  J is Thai.

66.  M has worked for the parties since December 2000, her principal duties are to look after T.  J has worked for the parties since July 1999, her principal duties are to look after N.  Both helpers also help out with looking after the other child.  They play a large role in the physical care of them.  It appears that the children are quite attached to them, especially N with J.

67.  In brief the helpers’ evidence was to the effect that the mother played an inconsequential role in the children’s welfare.  Save for stating that the mother read the children some bed-time stories on the rare occasion she was home in the evening and having meals with them mostly on the weekend and occasionally taking them to her work place for a short time she otherwise had little participation with the children.  They described her as a very late riser in the day, usually about mid-day or later, thereafter whilst at home, she would then spend most of her time on the telephone and then go to work.  When she returned home from work at about 8.00 pm she would not assist with the children’s homework, but came home to get ready to go out for dinner again.

68.  The account they gave for the father was in every respect different.  They said that the father would take time off work to pick up the children from school then return to work.  He would come home from work at about 6.00 pm when he would supervise their homework and spend time with them watching videos or playing video games.  He would regularly take them to the clubs to play or have dinner.  At the weekend as the mother had to work, the father would bring the children boating with friends or take them to visit friends.  They acknowledged that the maternal grandmother went to the matrimonial home in the weekdays where she would have dinners with the children and read storybooks to and play with them.

The evidence of the maternal grandmother Ms. M

69.  Ms. M is the mother’s mother who consequentially is the maternal grandmother of the children.  She lives in her own flat with her mother and a helper.  She holds a degree in psychology.  She runs her own home based public relations business.

70.  Her evidence is that she has been largely involved with the children of the family and the parties since the children were born.  She had spent six months residing with them when T was 1 1/2 years old.  She has developed a very close relationship with the children over the years, especially with T.  Prior to the parties’ separation she would regularly go to the matrimonial home at least 3- 5 times a week to spend time with the children or take them out.  After the separation she would visit them at least 5-6 times a week.  When she was with them at home she would supervise their daily necessities, their meals and homework.  She would stay there until T fell asleep.

71.  The maternal grandmother has a very close relationship with the grandchildren, especially with T having lived together with them in the former matrimonial home.  She frequently visited the parties and the children in the matrimonial home or participated in family outings and spent a substantial amount of time with them.  Upon the separation of the parties she would go to the matrimonial home almost on a daily basis to attend to the children until February 2003, when the father curtailed her visits to the matrimonial home and contact with the children.  This prompted the urgent application by the mother for interim custody care and control of the children. 

72.  During her time spent with the children and the parties she was able to observe that the mother supervised T’s homework, participated in activities with the children such as taking them to birthday parties and shopping and generally did her motherly duties when they were infants such as feeding and changing them.  As for the father she said that his involvement with the children was to the extent that he would watch videos with the children and take them out for meals.  He however was quite strict with the children and was quick to discipline them.

73.  She stated that she assists her daughter (the mother) when necessary in attending to the children’s needs.  If the mother is granted care and control she will reside at the mother’s house for as long as is necessary.  She will assist in training the new domestic helper and will generally provide assistance in childcare for the mother.

74.  I find the evidence of the maternal grandmother to be truthful.  She struck me as an honest, fair and sensible witness.  I did not find her to partial to one or the other of the parties.  It was clear to me that her prime concern was and is the interests of her grandchildren.  In the difficult times encountered by the parties in communicating with each after the separation, she was used as the bridge of contact.  Despite a short fall out between the father and her from February 2003 until September 2003 she has been detached from their complications and been in good relations with both the parties.  The parties have relied upon her and consulted her on many matters in respect of their children.  I find she has been a central dependable figure and pillar in all aspects for the children and the parties.

75.  To reflect the closeness that T has with the maternal grandmother she informed the court that T has confided in her and not the parents in respect of what he feels in his heart particularly in relation to the separation of the parties and its consequences.  This takes place when he cuddles up to her in bed when he is at the mother’s house.  Despite his age they have had some very deep discussions.  It is her evidence that despite his young age he is a very mature boy.  He sees the conflicts with his parents.  She has attempted to advise T’s that his parents’ conflicts do not affect the love they have for him.  He has relied on her in times of complexity, she has been a source of stability and comfort to him.  Given her background in psychology she is a valuable asset to the children.

76.  I reject the evidence of the domestic helpers.  The picture painted by them of the mother’s involvement with the children suggests that she is nothing more than a storyteller and part-time dinning partner.  The mother’s witnesses and even the father contradicted their evidence.  I do not find their evidence to be impartial.  Two of them are still presently in the employment of the father, the other is a relative.  They are the carers of the children and have an interest in assisting their employer their father to retain the care and control of the children. 

77.  During the course of the trial evidence was heard into alleged sexual abuse of N by J. An allegation first came to light when one of the parties very close friend made complaints about J’s abuse in respect of the close friend's daughter.  It then transpired that N might have been subjected to the same.  The maternal grandmother's gave evidence that N had asked the maternal grandmother to make her fall sleep as J does.  When the maternal asked N how, the maternal grandmother explained that N had demonstrated to her that J did so by touching her private part.  The mother and maternal grandmother obviously feel concern about N being in the care of J.

78.  The father gave evidence that he had spoken to both N and J on this issue.  N had said there was nothing of the sort and J denied the allegations.  The father said he believed J as through the years he found her to be an honest person.  Nevertheless he had stayed vigilant and since then kept a close eye on things.  He went into N's room to check on her six to seven times a night.  This court is not in a position to make any finding in respect of the allegations made but suffice it to say that these are serious allegations and if true may cause extensive psychological damage to N.  If the father believes there is no substance in the allegations and continues to employ J then that is his decision with full knowledge of the allegations and consequences should they be true.

The social investigation report and the social welfare officer

79.  Ms. Wong the social welfare officer is an independent observer.  She has interviewed the parties, the children and the relevant persons concerned.  I accept without reservation her observations.  She has compiled a detailed report dated the 16 May 2003.

80.  It is the social welfare officer’s recommendation that the mother have the care and control of the children with long staying access to the father at the weekends and school holidays.

The mother’s boyfriend

81.  The mother’s boyfriend is Mr. L.  He does not live with the mother.  There is no evidence from the mother that she foresees there to be any long-term commitment with him.  Although it is shown from the notice to admit facts that she spent quite some time with him and stayed outside her home with him at least three nights a week, it is her evidence that he will not have any significant involvement with the children.  I accept that to be so.  The children have met him, it is probable that the children will on occasion meet him with the mother.  As with many marriages that are over the party may meet new partners.  The relationship of the new partners and children are important when the partner will play a significant part in the children lives.  I am not persuaded that the mother’s relationship with her boyfriend has any notable factor in considering my decision.

Conclusion

82.  The children are relatively young they are presently 7 and 5 years old. Due to N’s young age she is unable to have an understanding of the family’s situation.  Despite T’s age he has quite a good understanding.  He expressed no strong views towards his care arrangements.  He likes to sleep at both homes.  He appreciates his father’s effort in arranging outings and trips for him but is aware of his strictness in discipline.  He is aware that the mother is more skilful in playing with him and she used to be the one who checked his homework.

83.  Both parents are loving and caring parents who have developed a very close and good relationship with their children.

84.  I am satisfied that the social welfare officer has carefully, thoroughly and objectively made her observations.  She has taken all relevant factors into account.  I am satisfied that the mother’s interaction as observed with the children were natural, genuine and normal.  I rely and adopt the views expressed by the social welfare officer in the report at paragraphs 68 and 69 of the social investigation report as to the physical, emotional and educational capabilities of each of the parents. It states as follows: -

Para 68. “The mother is comparatively more informative about the children’s medical condition at infancy but both parents gave quite detailed accounts of children’s development, habits, personality and daily routine generally.  Both are loving and caring parents who are able to establish a close and good relationship with both children in general.  The children appear happy and interact spontaneously with both parents and feel secure in both homes.  The son seems to have developed a close the bond and intimate relationship with the mother and the maternal grandmother whereas the daughter a bit closer with her father.  The father is comparatively more authoritative and directive whereas the mother more affectionate and more skilful in communicating.  The father tends to use more scolding and physical punishment in discipline.  The mother comparatively has more use of reasoning an explanation.  She is also more skilful in playing with the young children.  The children appear more relaxed in the presence of the mother.

Para 69.With the parents educational background, they are believed to be able to give the children educational guidance and assistance.  Comparatively, the mother shows more patience in guiding the children’s homework, and checks the answers with greater care.  She has more frequent use of encouragement and praises to prompt the children’s good performance.  As for physical care, due to their work and the mothers sleeping pattern, they cannot provide full-time care of the children and are in need of assistance from domestic maids.  Comparatively, the mother has more experienced and skills in physical care such as bathing and feeding whereas the father had to depend more on the maids….

85.  The consequences of a change in circumstance are potentially significant.  Since the children were born there has been no shortage of assistance in physical care.  For approximately one and half years they have been residing with their father at the matrimonial home.  They are comfortable there. 

86.  Should the children remain with the father he could provide them with the continuity of care with the assistance of two domestic helpers, a driver and a more spacious living environment.  The status quo will not be affected. 

87.  Should the children live with the mother their house will be smaller, one as opposed to two helpers will assist in care.  They will therefore lose their personal one to one individual care of a helper.  The children are close to their present helpers, for N she regards J as her best companion.  N will surely miss her should she move to the mother’s home.  Domestic helpers although key persons in providing childcare are however not part of the family.  It is foreseen that hired help is not for an indefinite period.  Although the child may find it difficult to adjust to a change of carer it is an adjustment which can be overcome.  The children are familiar with the mother’s home as they have been spending nearly every weekend there.  They are happy there.

88.  The mother will be reliant on new domestic helper and in the beginning the maternal grandmother to care for the children.  I am confident that the children will adapt to a change in carer.  They are still young.  With the presence of the mother, and the maternal grandmother this will greatly lessen the effect of the change.

89.  The mother is in the habit of rising late in the morning.  She therefore does not prepare the children for school in the morning.  Generally speaking, this is not a common trait amongst most mothers.  Contrarily, it is common for mothers to prepare or see their children off to school in the morning or tend to them early in the morning if they are awake.  I find it extraordinary that this mother does not do so.  I however accept that some people have difficulties rising in the morning.  In spite of this, seeing the love and care that the mother has for the children I am confident, that should the mother not be able to rely on a domestic helper or the maternal grandmother for assistance she will be able and capable to do so herself.

90.  Neither of the parties in this case can be said to be the primary carer of the children in the ordinary sense of the term.  It is apparent to me that now upon the separation of the parties they desire to take up that role as far as is possible.  They have placed the children interests as their paramount concern.  Both parties have made a concerted effort to tend to their children’s needs.  The father has demonstrated more participation in the children’s welfare since the separation of the parties.

91.  The parties have differing views as to the children's daily schedule.  The mother having a more Western outlook proposes not to overly fill their daily schedule but to give them more rest and play aside from their daily school curriculum.  The father’s schedule is not uncommon amongst the local Asian families in Hong Kong.  Both agendas are common amongst families in Hong Kong, there are advantages as well as disadvantages in both.  On the whole either schedule is satisfactory so long as the children are not affected in their well-being or educational progress.  It is therefore the prerogative of the parents in whose care and control the children are to make their choice.

92.  It is important for the parent who has care and control to co-operate and liaise with the other parent about important issues concerning the children.  I am inclined to agree with the mother that the father has not been so in respect of the handing over of the children's schoolbags or of keeping the mother informed of the children’s school progress and of informing the mother of important school events.  I believe however that the father realises that this is not acceptable and conducive and undertakes to do so in the future should he have care and control.  I believe the mother will do so.

93.  The parents in this case are not on good speaking terms.  The bridge of communication is the maternal grandmother.  It is vital that any case where the parties share custody they put their conflicts aside and develop a working relationship for the benefit of the children.

94.  Both parties have their relative strengths and weaknesses.  I am satisfied that the mother was comparatively more involved with the children's affairs than the father.  I am satisfied that the mother rather than the father has a better understanding of and for providing for the children’s emotional needs.  She is more skilful in her communication, including her communication of love, guidance of homework and playtime and with the children.  I believe she will continue to bestow these upon her children and provide them with her utmost care.

95.  Considering all the above matters and weighing all factors and in the paramount interests of the children, I am satisfied that the mother should have care and control of the children.   The father’s access to the children be for one day during the week from 5.00 pm until 9.00pm and weekend staying access to the father.  The weekend staying access is to commence from Friday evening 5.00 pm and ending on Sunday evening at 9.00 pm.

96.  As it is also appropriate for the mother to share in the children’s recreation time which is at the weekend and taking into account the mother’s work pattern, I consider that one day of the children’s weekend be spent with the mother once per month.  This access is to be from 12 noon to 7.30 pm if it is on a Saturday and from 1.00 pm on a Sunday.  To enable the father to make arrangements at that weekend the mother is to inform the father of her intended access 5 days prior to the day.

97.  During school holidays, the children’s time is to be shared equally between the mother and the father.  I shall not endeavour to define the access during this time but will give the parties an opportunity to adopt their own access arrangements in respect of the duration by their mutual agreement.

98.  The order made on the 12 March 2003 was for interim joint custody that order will now be an order for joint custody. 

99.  In the circumstances I make the following orders:-

1)	Joint custody be granted to the Petitioner and the Respondent with care and control to the Petitioner,
2)	The Respondent be granted weekend staying access commencing on Friday at 5.00 pm to Sunday 9.00pm.  Day access is to be granted to the Respondent once per week from 5.00 pm to 9.00pm.
3)	The Petitioner be granted access once per month either on the Saturday or the Sunday.  If access is to be on the Saturday such access to be from 12 noon to 7.30 pm.  If access is to be on a Sunday such access to commence from 1.00pm.  Notice is to be given by the Petitioner to the Respondent of the weekend day 5 days before the intended access.
4)	The Petitioner and the Respondent to share equally all school holidays with the children.

Costs

100.  The general practice in custody cases is that there be no order as to costs where both parties have been reasonable in their approach: see Rayden 17^th Edition paragraph 53.13.  I therefore make an order nisi that there be no order as to costs, to become absolute in the absence of an application for costs by any of the parties within 14 days of this judgment.