WYL v. WX

FCJA 3198/2019

[2021] HKFC 216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NUMBER 3198 OF 2019

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JUDGMENT

(Care and control)

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Introduction

1.  I will refer to the “1^st Applicant” and the “2^nd Applicant” as the “Father” and the “Mother” respectively.

The Application before the court

2.  This is the trial of the parties’ application for the care and control of their two daughters (hereinafter called “Y” and “T”), the children of the family.  In spite of that the Father and the Mother agree joint custody of Y and T be granted to the parties, the Father and Mother each seeks the sole care and control of Y and T, with reasonable access to the other party.  The core question that requires the Court’s determination is what future care and control arrangements are in the best interests of Y and T.

The Background

3.  The Father is now 62 and the Mother is 44. The Father is unemployed and has been a recipient of Comprehensive Social Security Assistance (“CSSA”) since July 2019. The Mother is working as a cleaner.

4.  This is the Father’s second marriage. They met in 2004 and started to cohabit in 2006 in the mainland. The elder daughter, Y, was born in July 2006. In July 2009, they married in Hong Kong. The younger daughter, T, was born in Hong Kong in November 2010. The Mother and the children moved to Hong Kong in May 2011 and lived in a sub-divided unit.

5.  Both parties acknowledged that significant cracks appeared in their relationship after the Mother and the children moved to Hong Kong, although understandably both saw this from their own perspective.

6.  The Mother complained that the Father did not give sufficient financial support to the family and there were differences in parenting styles. The Father and the Mother often had serious arguments to the extent that the police were notified.

7.  On 21 June 2019, the Father and Mother made a joint application for divorce.

8.  In July 2019, the Father was assigned to live in a public housing in Shatin (“Property”). The Father and the children moved into the Property.

9.  A decree nisi of divorce was granted on 7 December 2019.

The Father’s case

10.  He loves the children and genuinely care and concern about their welfare. He is eager to be actively involved in their upbringing.

11.  The Father said the Mother is unsuitable to be the children’s carer as she is a person of bad temper. She is easy to lose control of herself and do something damaging to others. The Mother had once abused T as she failed to study before test, such that T was admitted to hospital for examination. Further, the Mother had once hit the furniture with a knife during their quarrels.

12.  The Father also alleged that the Mother used to leave behind the children with her brother in Shenzhen and returned to Hong Kong herself. The Mother is an irresponsible person.

13.  It is the Father’s case that the Mother suddenly gave up custody and care of the children in June 2019. The Father had no alternative but to quit his job and applied for CSSA to take care of the children.

The Mother’s case

14.  She loves the children and has been the primary care taking parent of the children since their birth.

15.  The Mother said she had no intention to give up care and control of the children. The Father however refused to let her to have the keys to the Property, so she moved out from the Property.

16.  The Mother admitted that she hit T once when she failed to study for a test and T had to be examined at the hospital. The Mother acknowledged that she had used the wrong teaching method and would change her parenting method.

17.  The Mother also admitted that she hit the furniture with a knife on one occasion, but that was due to heated arguments with the Father who asked her to take the wardrobe and moved out from the sub-divided unit.

18.  She denied that she had left the children behind with her maternal siblings in the mainland.

The applicable law

19.  The law in relation to matters concerning children is as set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, as follows:

 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;

20.  In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill, i.e.

 (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) 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 in the proceedings in question; and

 (l) Any other fact or circumstance that the court thinks is relevant.

21.  It is trite that the best interest of the child is the first and paramount consideration.  It is also clear and well-established law which has been reiterated in judgments in Hong Kong that in a matter relating to the custody or upbringing of a child, to make a decision that the Court consider to be in the best interest of the child, the judge has the duty to take into consideration and weigh all relevant factors properly.  The welfare checklist is to be used as guidance.

Discussion

22.  I now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing. I have also heard from the Social Welfare Officer, Ms Y, who prepared a Social Investigation Report dated 4 November 2020 and an Updated Social Investigation Report which was filed with the court in July 2021. 

Social Investigation Reports

23.  Recommendations made to the court in social investigation reports although not binding are generally considered to be very persuasive. In this case Ms Y had filed two reports. In summary Ms Y recommended joint custody with care and control to the Mother.

24.  In Ms. Y’s Updated Social Investigation Report, she said inter alia as follows:

 Conclusion and Recommendation

17. The information gathered indicated that both Y and T were all along taken care by the Mother until July 2019. The Mother was then familiar with the developmental needs and routine of Y and T. She demonstrated her ability to provide proper and adequate care to the children and had actually paid a lot of efforts to nurture them for the development. Both Y and T also clearly expressed their wish to stay with their mother. In this connection, the Investigating Officer considered that placing Y and T under the care of the Mother wold be a more desirable arrangement.

18. If care and control was granted to the Mother, as the Father already demonstrated genuine love and care towards the children especially during the past two years, regular contacts between father and the children would sure ensure Y and T enjoy the paternal love continuously, which is undoubtedly beneficial to their development.

The children’s views

25.  Y indicated her wish to stay with the Mother since her first interview with Ms Y.

26.  While T at the first interview indicated she had no particular preference as to which parent she wished to stay with, but she emphasized that she would like to stay with her sister. When Ms. Y met with T again in June 2021, T indicated that she preferred to live with the Mother, as she showed more concern about her learning and developmental needs.

27.  Longer term though, I believe that the Mother will be the more appropriate person to meet the children’s emotional needs.  As children get older they often gravitate towards their same sex parent.

Parenting ability

28.  It is common ground that before July 2019, the Mother has been the primary care taking parent of the children since their birth. The Father has been the main care taking parent since July 2019.

29.  It is undisputed that the Mother had hit T on one occasion, but I accept that the Mother now understood that her then parenting style was incorrect. I do not find the Father’s attempts to undermine the Mother’s parenting abilities credible.

Sibling unity

30.  I have also considered whether split custody is possible, however, as the children indicated that they wish to stay with their Mother, I do not find it appropriate to order split custody. In any event, it is in the interest of the children to stay together so that they are able to provide each other with mutual support and comfort. 

Children’s care plan

31.  The Mother is now working as a night shift cleaner. She said she would try to arrange to attend day shift with her employer.

32.  The Mother said if her employer cannot make such arrangement, she would stop working, rely on CSSA and spend all his time caring for the children. 

33.  The Father’s children’s care plan is to continue with the status quo. He would continue to rely on CSSA and spend all his time caring for the children.

Should care and control of the children vest in the sole name of the Father or the Mother?

34.  Given the evidence I am satisfied that the Mother should have sole care and control of the children.

What arrangements should be made for access for the other parent?

35.  Access is the right of the children. Consequently, the Father shall have reasonable access to the children.

Costs

36.  Given the nature of this dispute I will make no order as to costs.

37.  As the Mother is legally aided and therefore her costs will be taxed in accordance with Legal Aid Regulations.

Order

38.  I will make an order in the following terms:

(1)  Sole care and control of the children of the family shall be granted to the Mother.

(2)  The Father shall have reasonable access.

(3)  There shall be no order as to costs. 

(4)  The Mother’s own costs to be taxed in accordance with Legal Aid Regulations.

(5)  A declaration under Section 18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance, Cap.192.