DAP v. WPYC

FCMP 167/2020

[2023] HKFC 91

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL PROCEEDINGS NO. 167 OF 2020

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J U D G M E N T
(Children matter)

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1.  This matter was set down for 4-day trial on issues concerning a child, C born in 2020, about to turn 3 in the coming month.  She was born out of wedlock, the Applicant father applied for parental status in his originating summons and was given it by an Order dated 8 November 2011.

2.  The parties have been embroiled in proceedings since the beginning, they went through a few CDRs, and when those were unsuccessful, the matter came to me for, inter alia, the custody care and control hearing. On the scheduled PTR date in July 2022, the parties managed to come to agreement on joint custody, with primary care to Mother, and care and control to Father when C is with him.  The access issues remain open, and was therefore set down to trial, adjourned from last August to the last four days.

3.  Father is Australian and an accountant/consultant working at a local accounting firm, he is now age 36. Mother is Chinese, and now age 38.  She recently changed jobs, and now works as a consultant in another accounting firm.  Father came to HK in 2016, posted from his Australian firm. They met in late 2018 and started a relationship soon after.  This relationship broke down when C was only 4 months old.

4.  On the first day of trial, the parties were urged to discuss and see if a settlement could be reached, at day end, the issues were narrowed down.  On day two, when there was a stalemate in their discussion, the SJE Dr K and the SWO were called to give evidence, and were cross examined.  On day three, with the benefit of the expert and SWO evidence, the parties were urged to attempt discussion again.  When settlement fell through by afternoon, I ordered the trial to resume.  Both parties gave evidence and were cross examined.  This extempore decision is given on day four of the hearing.

5.  I would first start by acknowledging Dr K’s expert evidence, it has helped to steer me in this decision.  Furthermore, the parties’ own evidence is illuminating.  I find the Father’s oral evidence credible; but I find the Mother evasive, and intent on saying only what she wants to say, therefore the court failed to hear most of the answers to the questions asked of her because it was just not forthcoming.

6.  The following are the outstanding issues for this court to decide:

(i)  Should F’s access to C be Sunday and Monday (Status quo), or Friday and Saturday (Mother’s proposal)

Father has alternate overnight Sunday / Monday access since February 2022.  His position is that Sunday is important to retain as he has zoom call with his family members in Australia (who work Saturdays); and Monday is the day he has permission from his employer to work from home.  This was repeated in oral evidence and he explained his attempt to move his Monday, but his work is now organised (from a team and clients’ point of view) around his “work from home” schedule on Monday, and he has been told it would be very difficult to move.  I accept his evidence in this regard. 

On the other hand, Mother’s concern is about the amount of travel C has on the Monday with the trip from F’s home to school and back, and then drop off with her later the day in TKO. Incidentally, this is also what her counsel represents on day one when explaining her Friday / Saturday preference. Father says that all these trips are made on taxi, not other means of public transport. On cross examination, this is apparently the only reason she raised on this point, despite her attempt to say there are other reasons, I do not find it credible. 

On balancing the factors raised in this issue, and having considered that C has to go from either parent’s home to school be it Friday or Monday (although at this moment Mother’s home is closer to school), and albeit Monday means one more return trip to Mother’s home for C on the same day; I find the Father’s reasons more cogent than the Mother’s on this. 

This also means status quo for C, reducing the amount of change to children is an important consideration in thinking what is in their best interest.  I am also bearing in mind the least disruption to C when she is just beginning to grapple with the tension between her parents, the better.

(ii)  When should this start

This weekly access on Sunday / Monday is to start on 4 June 2023.

The weekend access should begin at 9am on Sunday to 7pm on Monday, to give some breathing room for Mother on the weekend to prepare C to be picked up by Father.

(iii)  Taking C to school on Wednesday and Friday

I have indicated to the parties that I am supportive of a non - care and control parent taking their children to school to meet teachers and fellow parents, and be involved with children’s school life.  I welcome Father’s proposal to do this on Wednesday and Friday, this is in addition to him already doing this on Monday. 

M says this is unfair as this is the majority of the morning drop off days.  But she also picks C up after school; and F is not proposing to do this on his work schedule.

(iv)  Paternal grandparents’ visit

Dr K is supportive, and I agree that C should be given chance to connect with extended families who love her.

I agree that Father should have extra access time to C when the paternal grandparents are in town.  I will accept Father’s ask. 

However, I also accept M’s condition and add mine:

-  Twice a year; do note that I am not limiting how many days the grandparents come to HK

-  Not disruptive to C’s school or ECA’s time except with consent of M

-  M gets 14 days’ prior notice of the paternal grandparents’ visit

F gets two day-access over seven days, and alternate Saturdays.  This latter point is so that M does not lose her Saturdays every week when the grandparents are in town.  I also note that M has suggested that she is flexible to consider allowing C to skip one day of activities (including school /ECA).

(v)  School Holidays

It has been agreed that F will get one more day access during the week. This should be Thursday from 9am to 7pm.

(vi)  Long holidays

These usually mean Christmas and NY, Chinese new year, Easter and Summer.

F is not asking to share these 50-50.

Easter is agreed, and Father has no special request regarding Summer holidays, and therefore paragraph (v) herein should apply.

I accept F’s proposal for Christmas and NY. I am conscious that C will spend two overnights with F, the first time this happens shall be Christmas in 2023, by which time Father will have weekly overnight access for around 7 months.

As for CNY, I am giving M the last lunar day of the year and 1^st day of the lunar new year on an annual basis, F will have C on 2^nd and 3^rd day of the lunar new year (overnight) except that his pick-up time for C on 2^nd day of the lunar new year will be 10am.

(vii)  Make up access

I agree that there should be make up access, with no cap.  This should take place within 6 weeks from the time of the missed access.  Missed days can be on any days of week within that period.  Admittedly this could mean F ends up with afterschool pick up on a weekday; F should also take her to any pre-scheduled ECAs unless M agrees otherwise. 

(viii)  Review

Well-being review: 12 months, by a private “treating” psychologist / play therapist to be engaged jointly by the parties, and costs to be shared.

SIR Progress Report to be filed with Court by 30 August 2024 reporting on the access arrangement and recommendations for increase access with the F if appropriate.

7.  For the avoidance of doubt, these access arrangement herein shall take effect from June 2023.

Concluding points

8.  Mother said something about two homes in her evidence, this is an inevitable truth for C, and as parents, they can either make it work for her, or make her life a misery. I acknowledge both parties have made compromises in the last few days, but I invite parties when they are about to launch into disagreement with anything the other side says, that they cast their mind to their daughter first and remember what Dr K says.

9.  I also wish to reiterate that the parties have at least spent HK$4.5M on these legal proceedings together; money better spent, no doubt, on C; maybe a savings plan or an education fund.  So they should remember every time they spent money arguing over her, they are creating a negative mental and psychological impact on their child. So they lose both ways. 

Costs

10.  There shall be no order as to costs, with Certificate for counsels.