STY v. LMSC

FCMC 5382/2015

[2018] HKFC 170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 5382 OF 2015

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J U D G M E N T
(Education and other Directions)

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1.  This is a hearing of the petitioner mother (“the mother”)’s 2 summonses dated 9 April 2018 and 4 June 2018 respectively.  It is common ground that there are 4 issues to be determined at this hearing and they are:

(1) The education of the 2 children of the family;

(2) The children’s private tutoring;

(3) How to define the children’s school holidays; and

(4) The appointment of a parenting coordinator.

2.  The respondent father (“the father”)’s stance is that he objects to all the reliefs claimed in the summonses.

Brief Background

3.  The parties were married in 2005.

4.  Within wedlock, 2 children were born and they are:

(1)  The elder son (“A”), now aged 9; and

(2)  The younger son (“C”), now aged 7.

5.  In 2015, the mother petitioned for divorce which was not defended.  A decree absolute was obtained on 24 September 2015.

6.  The parties were able to achieve a settlement on the custody and ancillary relief issues.  For custody, and with the parties’ consent, a joint custody, care and control order was initially granted, with very detailed arrangement for access to be exercised by the respective parties.  The mother later applied for variation resulting in an order dated 14 December 2017, granting her sole care and control and the father having defined access on every Wednesday from after school to 9 pm and alternate weekend access from Friday after school to Monday morning.

7.  Despite the December 2017 order, disputes continued principally on the children’s education and also on the father’s access, resulting in the mother’s 2 summonses that have to be fully argued before this court.

Guiding Principle

8.  There is no dispute that the guiding principle in children matters must be the best interests of the children: s.3 Guardianship of Minors Ordinance, Cap.13, by reference to which I will now discuss the above 4 disputed issues in turn.

The Children’s Education

The Mother’s Case

9.  In paragraph 1 of the summons dated 9 April 2018, the mother asks for leave to apply for the children’s admission into the Canadian International School (“CDNIS”) for the school year starting September 2019 and for them to enter into that school when offers become available.  At the same time, she also asks for leave to make arrangements to secure a placement for the elder son, A at West Island School (“WIS”) for his Year 7 education starting September 2019, until such time when a place is available to him at the CDNIS.

10.  It is common ground that both children (aged 9 and 7 respectively) are current ESF students at Glenealy School (“Glenealy”).  A is currently a Year 6 student and will be promoted to Year 7 for his secondary education in September 2019.  C is currently a Year 4 student and will have another 3 years before he completes his primary education.

11.  It is the mother’s case that A is due to complete his primary education by summer 2019 and as an ESF student, and by reference to his former residence at the Conduit Road, he is likely to be promoted to Island School (“IS”) to continue his secondary education.  However, she considers that CDNIS is a much better school and therefore, she wants both A and C to be educated there. 

12.  In her supporting affidavits, the mother listed out 5 main grounds for her preference for CDNIS, namely:

(1)  CDNIS has a better Chinese curriculum;

(2)  IS’ redevelopment;

(3)  CDNIS’ superior academic performance;

(4)  CDNIS’ smaller class size; and

(5)  The children’s Canadian nationality and ties with Canada.

13.  In other parts of her supporting affidavits, the mother also explained why she considered WIS, albeit another ESF school in the Hong Kong Island, should be the second choice for A (the mother agrees that C should stay at the Glenealy to complete his primary education should he fail to enter CDNIS in September 2019), instead of IS.   The reasons being that:

(1)  As IS is currently under redevelopment, the school has been relocated to a temporary site at Shatin.  Since the mother and A are now living at Pokfulam, it will mean much longer travel time if A should study at IS in Shatin. 

(2)  WIS is having stronger academic performance and better facilities than IS.

(3)  According to her knowledge, many of A’s friends will also be going to WIS or leave the ESF system and it will therefore be better for A to be promoted to WIS. 

The Views of the Father

14.  The first objection raised by the father is that according to the parties’ agreement, as evidenced in Recital (F) of the Consent Order dated 10 September 2015, that it was the common intention of the parties that both children should continue to be educated in IS for their secondary education.  He considers that there are no cogent reasons for that agreement to be changed.  Furthermore, he suspects that the mother’s intention to enrol the children at CDNIS is to prepare them for university education in Canada and it is certainly too early for such a decision to be made.

15.  In his affidavits in opposition, the father also points to the fact that as far as A is concerned, there is no certainty that he will be accepted by CDNIS in September 2019.  As a matter of fact, A has already been rejected by CDNIS at least 3 times before, in 2012, 2015 and 2018.  With no certainty of his acceptance by CDNIS in 2019, it means that he may need to change school again if an acceptance is forthcoming only some years in the future.  That will be too much of a disruption to his secondary education.

16.  On the contrary, as Glenealy is the feeder school of IS and therefore, most of the children’s friends will be promoted there from Glenealy.  This will ensure a smooth and comfortable transition to secondary education for both A and C.

17.  As far as the comparison of the academic performances and the Chinese curriculums between CDNIS and IS is concerned, the father does not agree that CDNIS is necessarily the better one.

My Views

18.  Generally speaking, the persons in the best position to make decisions on children’s schooling should be their parents.  Therefore, it is regrettable to note that the choice of both A and C’s schools have to be made by this court.

19.  In deciding on which school the children should go in the next academic year, I fully appreciate the mother’s concerns on the children’s academic performance. The case that she is trying to put is that CDNIS is a much better school than IS as far as academic performance is concerned and that is one of the main reasons why the children should continue their education there.  However, as I am not an education expert, I cannot be satisfied that CDNIS must necessarily be the better school by simply looking at some brochures or internet information exhibited in the parties’ affidavits.  I was referred to the IB scores but again, I do not consider their differences to be so significant to justify the conclusion that CDNIS must be more superior in terms of academic results.

20.  Furthermore, I think the more important question here is which school will suit the needs of the children better, instead of simply seeing which school is performing better academically, or having a better Chinese curriculum, or having a smaller class size, or having a Canadian connection.  In this regard, I have to remind myself that from their school and other assessment reports, it is apparent that both A and C are already in need of assistance in order to keep up with the academic requirements of Glenealy. Therefore, I do have reservations on whether it will do them any good if they are to be sent to an even more academically demanding school, if CDNIS is indeed one.  As far as A is concerned, he has already applied for and being rejected by CDNIS 3 times before.  There is no suggestion that he failed on those 3 occasions only by a narrow margin and I really worry about the psychological harm that might be done on him if he should fail a 4^th or even a 5^th time, as I understand from the mother that she will continue applying for A’s admission into CDNIS until a place is given to him.  Therefore, I have come to a view that these non-stopping applications to CDNIS are not in the best interests of A.  After all, I see no evidence to suggest that IS or other ESF schools are not good or suitable schools for the 2 boys and I see no reasons why they should be removed from that system unless there is a consensus from both parents.

21.  In her submissions, Ms. Irving for the mother referred me to the judgment of HH Judge Carlson in W v F [1] in which the late Judge was invited to make a decision on the choice of schools for the 2 children of the family.  At §§20-22 of the judgement, it was the late Judge’s view that special attention has to be paid to the views of the primary carer (the mother in that case) despite the other parent may have won the “intellectual argument”:

“20. But I need to consider the mother’s position. She is the primary carer and I would have thought that it will be the case after all of this litigation is over and done with. The strength of her feelings, that it should be IMS and not CIS for the two boys, is not one that is borne out of malice - she is not doing it just to get her own way and score a win over the father, of that I am convinced - even though in happier times CIS had been jointly considered as the likely option. She has warm feelings for IMS. Had I thought that she was being bloody-minded, I would not have felt able to weigh her wishes in this decision.

21. I am satisfied that IMS provides a good education for the children at this stage of their lives. If I move Q, she is going to be very unhappy to the point, I believe, of being resentful. Those feelings will work their way to the children, which may affect their happiness and stability. This is a consideration that I am bound to have considerable regard to. It is not a case of saying, “Well, the mother is going to be much more upset than the father. So I will do what the mother wishes.” That would amount to a dereliction of judicial function. It is a question of weighing all the factors that will impact on Q, either directly or, on him, through its effects on his brother and sister and on his mother with whom he spends most of his time.

22.And so whereas the father has won the intellectual argument, I still do not consider the proposed move to CIS to be in Q’s best interests at present.  As I had indicated in the course of the argument, this dispute has arisen at the worst possible time in litigation cycle of this case.  Hackles are up, swords are drawn, and a change in Q’s situation will, I believe, make matters worse.”

22.  I have no argument with the late Judges’ decision and more importantly, his reasoning in that particular case.  In our present case, I fully appreciate that the mother has the daily care and control of the children and is therefore their primary carer.  Her views and feelings do carry weight in this important issue of the children’s education.  However, as I have mentioned in earlier discussion, I am not satisfied that by continuing future applications for A’s admission into CDNIS will be in his best interests, despite all the good intentions and feelings of the mother.  Therefore, it is my view that the best interests of A dictates that he should remain in the ESF system.

23.  As far as C is concerned, he is still studying at Glenealy and there will be another 3 years before his promotion to secondary education.  I think there is no immediate need for a change of school for C at this stage.

24.  Although the mother’s application in respect of a move to CDNIS has been refused, I still have to consider whether a move to WIS, instead of IS will be in the best interests of A. 

25.  As both WIS and IS are ESF schools, it is common ground that A will be allowed to continue his secondary education at either of them.  Although it is fair to say that both schools are providing education of a similar high standard to the public, I must pay heed to the fact that IS has moved to Shatin temporarily as its original site in the Hong Kong Island is under redevelopment.  There is little dispute that IS’ temporary campus at Shatin compares much less favourably than that of WIS at Sandy Bay, in terms of both size and facilities.  I also accept the mother’s evidence that IS’ new school will only be ready in the year of 2021, the earliest but more likely than not, in the year of 2022.  In other words, if A is to be promoted to IS in September 2019, he has to stay at the Shatin campus for about 3 years, meaning that about half of his secondary education will be conducted there. 

26.  More importantly, I accept the mother’s evidence that these 3 years of education in Shatin will not only mean that A has to travel between Shatin and Pokfulam on a daily basis during school days, it will also pose a particular problem for her, as a working mother, to arrange urgent pick-ups or A’s extracurricular activities many of which will be conducted outside the Shatin campus.  I accept that this will be a real difficulty for her to handle.

27.  On the other hand, I also take note of the father’s evidence that he, as an old boy of IS, would naturally want A to follow his footsteps in going to IS.  But that desire, if acceded to, will also mean that A has to change campus in the middle of his secondary education.  Moreover, the father’s allegiance to his mother school also has to be balanced against the convenience and therefore the needs of the mother, as a primary carer, for A to attend a school which is nearer to his residence at Pokfulam.  After giving some thoughts to the matter, I have come to the conclusion that A’s admission into WIS will serve his interests better, in terms of time savings and the avoidance of a change of campus in the middle of his secondary education.

28.  I note that it is the father’s case that most of A’s peers will continue their secondary education in IS, but the mother said otherwise.  I think there is simply insufficient evidence to prove one way or the other and I will therefore, not make any ruling on this point.

29.  Before I leave this topic of the children’s education, I would like to mention that in the parties’ affidavit evidence, a letter written by A (exhibited by the father) and also part of his diary (exhibited by the mother) were introduced attempting to show A’s “views” on this issue.  In short, the father is saying that A would like to go to IS whilst the mother is saying that the letter was written under pressure.  A is 9 years old, going to turn 10 shortly.  He is still young and his dilemma in facing opposing views of his parents is totally understandable.  I am glad to see that he was sensibly not being called to give evidence on his “views”.  I have decided not to give any particular weight to those 2 pieces of evidence in my decision on this issue.

The Children’s Private Tutoring

30.  In paragraph 1 of the mother’s summons dated 4 June 2018, the mother asks for leave for:

(1)  A to attend writing workshop at Glenealy every Wednesday from 3 to 4:15pm, and private mathematics tutoring at Sylvan Learning Centre every Thursday after school; and

(2)  C to attend private mathematics and writing tutoring at Sylvan Learning Centre every Thursday after school.

31.  In paragraph 2 of the same summons, the mother asks the father to bear half of the costs of those tutoring.

32.  It is the mother’s case that both A and C are falling far behind with their studies, particularly in mathematics and English writing, and need additional support by way of private tutoring. 

33.  On the contrary, it is the father’s case that the children’s present extracurricular schedules are already very packed and there is no urgent need for any additional private tutoring at this stage.  Furthermore, as his time of access to the children has already been cut under the December 2017 order, it is his view that further cut into his access time on Wednesday is not justified.

My Views

34.  I have already indicated in §20 above that I accept both children are in need of academic assistance which are quite apparent from their school reports and subsequent correspondence between the mother and the school.  Therefore, in principle, I have no objection to the mother’s proposals for organizing tutoring from either the school of from a private tutor.  I think the more pertinent question here is whether such tutoring should take place on Wednesday afternoon during the father’s access to the children, in view of the fact that the December 2017 order has already varied the joint care and control order, meaning that the access time of the father has to be cut down considerably.

35.  I notice from a school email on 29 January 2018 (Trial Bundle p.457) that A is having difficulty in organizing his writing and grouping sentences into logical paragraphs and that was why he was offered assistance from the school.  From a poster of the school (Trial Bundle p.459), the writing workshop class offered will take place on Wednesday between 3 to 4:15pm for Year 4 to 6 students with course fee of $3,500 covering a total of 10 lessons.

36.  After considering the matter in the round, I do accept that the sacrifice of 1 hour and 15 minutes (from 3 to 4:15pm) of the father’s access time may be justified in order to give A a boost in his writing skills.  After all, this arrangement will only last for 10 weeks and I believe this is a price worth to be paid in order to enhance A’s writing skills. As to the Thursday tutoring, this should not pose a problem as they do not fall within the father’s access time.

37.  As to the costs of tutoring, there was not much debate at the hearing and I believe they should be within the means of the parties.  I find it fair for those costs to be shared by the parties equally.

How to define the Children’s School Holidays?

38.  Although in the mother’s summons, she asks for specific orders on the division of the children’s school holidays in the 2018/19 academic year, I accept Ms. Irving’s submissions that the issue actually boils down to only one thing, i.e. when do the school holidays actually start.   It is common ground that the parties will share the children’s school holidays equally.  Unfortunately, they have very different views on when the school holidays actually start.

39.  The mother says that the school holidays start on the day following the last day of school. 

40.  The father adopts a different approach by saying that if the last day of school is a Friday, the school holidays only start on the next Monday.  The net effect of this interpretation is that he will still be entitled to the usual weekend access as the school holidays, which is subject to equal sharing, will only start on the following Monday.

41.  There was not a detailed calculation on how many access days will be lost or gained by adopting the 2 different approaches but I suspect that the difference will not be very big.  Moreover, the extent of the difference is bound to vary from year to year depending on the actual school calendars of the children.

42.  For my part, I would prefer the simple approach of the mother which sounds more logical and reasonable, namely that the school holidays start from the day following the last day of school.

Parenting Coordinator

43.  The last issue is whether a private parenting coordinator (“PC”) should be appointed and how the costs of such appointment to be shared by the parties.

44.  It is the mother’s case that due to the mistrust among the parties, it has become difficult for them to agree on even some of the minor issues concerning the children.  The fact that they have to come to court for adjudication on issues like private tutoring or when the school holidays should actually start are good examples of such difficulties.  It has long been her view that the appointment of a PC would certainly help in bridging some of the minor gaps between them.  At a previous hearing, the father objected to the idea of appointing a private PC but at the suggestion of the court, he agreed to try the services of Hong Kong Catholic Marriage Advisory Council (“CMAC”) which is a NGO.  But since the budget of CMAC has been cut and they are no longer providing PC services, the mother now asks for a private PC to be appointed with his costs to be shared equally.

45.  On the contrary, the father said they had attended 4 sessions with the CMAC but that obviously did not help and hence the present applications before the court.  He also pointed out that the PC from CMAC actually commented that the parties were not suitable to continue with PC service because of the strong positions held by them and no further mutual agreements could be made.  He said that the root problem did not lie in lack of communication, but rather the divergence of views and parenting methods of the parties.

My Views

46.  It is a pity that the parties have to come to court for some relatively minor issues and the present hearing is a good example.  After a long day’s hearing and by handing down this judgement, this court has made those decisions for the parties.  They may like or dislike some of those decisions but at least that is the end of the present legal battle, unless the parties are taking the matters to appeal. What worries me is that the children are still very young.  A is 9 and C is only 7.  It is foreseeable that in the coming decade, the parties, as the joint custodians of their children, have to come together to discuss and decide on some of the very important issues concerning their children, be they related to education or otherwise.  If they continue to hold their respective uncompromising attitudes, more litigious battles will have to be fought, which will surely not be in the best interests of the children. I am of the view that external help in the form of counselling or parenting coordination may help.  I note that the past 4 sessions of PC were not too successful but it should not deter us from giving it another try.  After all, the alternative will only be another round, or even more rounds of litigation which I firmly believe will not be in the interests of all parties.

Orders

47.  Based on the above reasons, and in respect of the mother’s 2 summons, I grant the following orders:

(1)  In respect of the children’s education:

(i)  Both children will remain in the ESF system unless there is a mutual agreement to do otherwise.

(ii)  For A, the mother is granted leave to make application for his admission into WIS to continue his secondary education, failing which he will have his secondary education at IS.

(iii)  For C, he will continue his present study at Glenealy, and upon the end of his primary education, he will continue his education at WIS.

(2)  In respect of private tutoring:

(i)  Leave for the mother to arrange A to have private tutoring on Wednesday and Thursday after school.

(ii)  Leave for the mother to arrange C to have private tutoring on Thursday after school.

(iii)  The costs of the above private tutoring are to be shared between the parties equally.

(3)  In respect of the children’s school holidays, they will start on the day following the last day of school.

(4)  In respect of parenting coordinator:

(i)  A private parenting coordinator is to be appointed.

(ii)  The parties should agree on the identity of such private parenting coordinator within 14 days, failing which each party should submit their choice of parenting coordinator with their respective CVs for the court’s decision on paper.

(iii)  The parties will share the costs of the private parenting coordinator equally.

Costs

48.  I grant an order nisi that each party shall bear his own costs, including all cost reserved, such order is to be made absolute after the expiry of 14 days from the handing down of this Judgement.