G, DV also known as DL.V v. GVNA also known as VNA. G

FCMC 7518/2017

[2021] HKFC 55

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7518 OF 2017

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J U D G M E N T

(The appropriate split of time during term time and other directions)

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Introduction

1.  This trial was set down in order to determine the day to day care arrangements for the youngest child of the family, AG, a girl who is now aged 9, having been born on the XX August 2011. Custody is not in dispute and the parties enjoy joint custody of AG by virtue of a court order dated the 24 November 2017. They also have interim shared care of her in that the Petitioner mother has the care of AG from after school each Thursday until Saturday evening at 8:00 pm during term time (2 nights). AG is in the care of the Respondent father otherwise. The arrangements for the school holidays are agreed and are set out in the court order dated the 12 June 2018. In addition, the parties have also reached an agreement with respect to the elder child of the family, a son called CG, who was born on the XX October 2004 and is now aged 16 years. The parties have joint custody of CG with care and control to the mother and reasonable access to the father. Thus the only remaining issue between the parties, from the courts perspective, relates to the day to day care arrangements for AG during term time.

2.  In gist, the mother wishes to share the care of AG more or less equally on a 2:2:5:5: basis. She is particularly keen to alternate the weekends as opposed to sharing them. The father for his part, made a concession on the first day of trial and he is now willing for AG to be cared for by the mother from after school on Wednesdays until Saturday at 8:00 pm. He wishes to continue to split the weekends so that he can spend all day on Sunday with AG. Thus he proposes that the weeks be split during term time on a 3:4 basis. Although the father had intimated previously that he might wish to relocate with AG back to the Philippines, he ultimately decided not to proceed with that application as he did not wish to relocate immediately.   

Background

3.  The solicitors for the mother summarized the background in brief as follows:

Case Background

(a)  Both the Petitioner and the Respondent are Filipinos and have residency in Hong Kong. They got acquainted in the Philippines in 2003 and the Petitioner gave birth to CG, a boy, on XX October 2004 (the “Son”). They got married in 2005 then settled down in Hong Kong in 2009. The Petitioner then gave birth to the Daughter in 2011. Due to unhappy differences between the parties, a petition based on two years’ separation was issued by the Petitioner in 2017.

(b) The Petitioner is now working as a part-time waitress and is living with the Son and her cohabitant Mr. B in Mui Wo.

(c) The Respondent is now working as a draughtsman and is living with his long-time friend Ms. DP whom he now employed as a domestic helper in Sai Wan.

4.  In addition, it should be noted that the decree nisi was granted on the 30 November 2017 and that the decree absolute is pending the s.18 declaration.

The issues

5.  There is then only one outstanding issue to be determined by the court namely how should the care of AG be shared during term time?

The law   

Custody, Care and control, joint care and control/shared care and access

6.  The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

7.  Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that

(1)  The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(a)   in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

8.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(1)   In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)  the views 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;

9.  For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

10.  Case law has developed over time and the most authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Reference should be made to that judgment as necessary. 

11.  Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control and shared care: 

Joint care and control

21.   Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22.   The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/rens best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case.  As I have said it is not possible for me to make a “parallel parenting” order as such.  However, I would like to make an order that supports the concept of parallel parenting.  Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access.  This will make no difference at all to the practical arrangements that I intend to put in place.  They would have been the same in either event.  However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

Detailed arrangements were then set out accordingly.

Discussion

12.  I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the Social Welfare Officer – Ms L, who prepared both social welfare reports, the first dated the 7 November 2017 and the second dated the 24 February 2020.

Each party’s open proposals

The father

13.  The father said on the first day of trial that he was willing to accept the recommendations made by the Social Welfare Officer namely that the

Shared care and control of A be granted to Mr. G and Ms. V such that A will stay with Ms. V from Wednesday after school to 8:00 pm Saturday. School holidays are to be shared on an equal basis.

The mother

14.  The mother for her part set out her open proposals as follows:

The Petitioner mother’s case

19.  The Petitioner’s proposal for the term time arrangement of the Daughter is as follows:

(i)  Every alternate week the Petitioner shall have care of the Daughter from Wednesday after school until the commencement of school on Monday;

(ii)  Every other week the Petitioner shall have care of the Daughter from Wednesday after school until the commencement of school on Friday.

20.  For clarify purposes, the proposed arrangement is summarized in the form of a weekly timetable below:

	Mon	Tue	Wed	Thu	Fri	Sat	Sun
Week 1	F	F	M	M	M	M	M
Week 2	F	F	M	M	F	F	F

(“M” = Petitioner mother; “F” = Respondent father)

21.  Under the Petitioner’s proposed arrangement, the Daughter will be spending 5 nights with the Petitioner on one week and 2 nights on the week that follows, making it a total of 7 nights every two weeks.

22.  For the avoidance of doubt, the Petitioner does not dispute the issue of joint custody and shared care of the Daughter, as well as the existing holiday arrangement of the Daughter.

23.  The Petitioner accepts that the Daughter has adapted to having two homes and views that a shared care arrangement which echoes a parallel parenting relationship, when taking into account the differences and disagreements between the Respondent and herself on the daily care of the Daughter, shall be in the best interest of the Daughter.

24.  The Petitioner is essentially proposing a fine tuned shared care structure based on the existing arrangement, which should the court accept her proposal, shall move towards a 50:50 shared regime on a 2:2:5:5 basis.

25.  For the reasons set out below (which have been thoroughly elaborated in the Petitioner's affidavits), the Petitioner views that her proposed alternation to the interim shared care arrangement is justified and it is now the appropriate time to make such adjustments for the welfare of the Daughter.

The Social Welfare officer’s reports

15.  There have been two reports filed, the first dated the 7 November 2017 and the second updated report dated the 24 February 2020. I am largely concerned with the second report. Social Welfare Reports are generally regarded as the “ears and eyes of the court” and they provide a very valuable function in that respect. However, the recommendations made are not binding on the court. If the court does not agree with the recommendations made, then reasons should be given. As will be seen I only agree with Ms L’s recommendations in part in this case.

2nd Social Welfare Report dated the 24 February 2020

16.  As stated above the Social Welfare Officer, Ms L recommended that AG spend one extra one day per week with the mother, which she said was more in keeping with the child’s own wishes. In her report she stated inter alia as follows:

Views of A towards Relocation and Care and Control

13. A informed that Ms. DP now takes care of her and helps with her homework. She said that her father and Ms. DP love her. They have not hit her these two years and sometimes scolded her only for teaching her. A said that she is very happy living with her mother and brother, as well as Uncle J, her mother’s cohabitant. She said that Uncle J is nice to her. He teaches her and brings fun to her.

14. During the home visit to her mother on 6.2.2020, A said that she has ever been to the Philippines for 4 times for vacation, each time lasting for about 2 weeks. She liked the environment of the Philippines as the houses and schools there were big and there were nice parks, pools and beaches. She was also good with her father’s relatives. She also ever played with Ms. DP’s 9-year-old daughter here, whom her father introduced to her as her sister.  However, she did not want to leave her mother and her school friends. She thus had not yet made up her mind about the re location plan. She said that she would not ask for that if her father did not propose it.

15. A said that all she wanted was for her family to be happy. She hoped that her parents would be together again. If not possible, she did not want any change but more time with her mother. She wanted to be with her mother for 3 days a week and with her father 4 days as she liked the church he brought her to on Sundays. She thus wanted to go to her mother’s place after school every Wednesday till Saturday evening.

16. In the home visit to her father on 12.2.2020, A said that she wanted to go to the Philippines with her father for good as there would be no homework in the school there. She could buy cheap pets and play with her cousins in big playhouses. She would only tell her mother after arriving in the Philippines as the latter would text her father and question him if she told her now. She said that she would miss her mother but could video-call her. She said that she did not know why she had changed her mind but her father told her that if she told the truth, he would give her a notebook with a key. However, she said that she did not know what the truth was. Anyway, A confirmed that she wanted to stay with her mother from Wednesday afternoon to Saturday night in Hong Kong if she was not to be relocated to the Philippines.

17.  On a plane reading of these paragraphs it seems that AG’s views have changed according to which parent she is with and that she is keen to please both of her parents. I would though accept that it is clear that she wishes to spend more time with her mother. Other than that I do not think that it is possible to place too much reliance on her stated views.

18.  Ms L also reiterated in the witness box, that if the father did not seek to relocate back to the Philippines, then it would be possible theoretically for AG to split her time half - half. She also stated that the child had been clear that she wished to spend more time with the mother and that she thought that this was reasonable. When asked by the father whether it was more beneficial for a 9-year-old child to share a weekend with the parents or alternate them, she said that it was an option to alternate them, but that this might not necessary if the 3:4 split remained in place.

How should the care of AG be shared during term time?

19.  I should say at the outset that the difference between each parties’ proposal is very small and that each has something to recommend it. It really boils down to whether AG’s weekends should be split or whether they should be alternated.

20.  Generally speaking, as a child gets older there is a tendency for weekends to be alternated by the courts as opposed to the weekends being split. This is because it is considered to be beneficial for a child to be able to have extended time with each parent and to do things which may not necessarily be possible if the parties only have one day each at the weekends. Also, although younger children may struggle with spending too long away from their primary attachment figure, that tends not to be the case as a child gets older. Here it is clear that AG is securely bonded with both parents and that she has no difficulty in moving between the two households.

21.  The father wishes to have all day Sunday with AG as that is his dedicated day off, although in the witness box he also confirmed that he does not have to work on Saturday. However, Sundays are important to him and he and AG have a set routine which includes Church attendance. Whilst I accept that this is beneficial for AG I also accept that in reality the mother does not get a full day (i.e. 24 hours) with the child over the weekend. The parties also live a long way away from each other, which means that in reality AG has to start to get ready to go back to her father’s at about 5:00 pm on Saturday. I accept that on Friday she is quite tired and that she also needs to do some homework on Saturday which means that in reality there is very little time left for doing anything “fun”. I also accept that it is important for her to spend extended periods of time with her elder brother, notwithstanding the difference in their ages. A full weekend would allow this to be more easily facilitated. Further the mother should also have the ability to take AG to her own Church from time to time. Church going should not be within the exclusive purview of the father.

22.  It also seems to me that both parties should be responsible for the weekend homework. The father is of the view that AG should be able to do her homework on a Friday and he “requires” the mother to ensure that her homework is completed before AG returns to him. The mother does not agree with this arrangement and in particular she does not agree that the homework needs to be completed on a Friday evening. I tend to accept what she says in this regard. In any event, if the weekends are alternated both parties will need to make arrangements to ensure that AG does her homework at some time over the weekend, whilst she is in their care. I accept that CG is able to help AG with her homework and in particular with her Chinese homework. It is acknowledged by both parents that AG is weakest in Chinese and Math.

23.  Overall then it seems to me that it would be more beneficial for the care of AG to be shared on a 2:2:5:5 basis as suggested by the mother. I do not fully accept the recommendation made by Ms Li for all of the reasons that I have elaborated upon above. I do, however, agree with her that this is an appropriate case for a shared care arrangement. Longer term however, it seems to me that it would be more beneficial for AG to alternate her weekends as opposed to splitting them.

The school bus

24.  An issue arose during the trial about the school bus and whether or not the school bus company would be able to accommodate the arrangement proposed by the mother. To that end leave was given for a joint letter to be sent to the school bus company after the trial and for their response to be provided to the court in due course. To that end it is of note that a joint letter was sent to the school bus company on the 25 September 2020. On the 5 October 2020 they responded as follows:

To whom it may concern

Dear Sir,

  AG is taking our school bus right now. For the sake of safety and the convenience of our staff, we only allow the getting on and getting off schedule will be the same every week.

  We do not accept the schedule different in every week.

  In this way if you think that it is not good, it is better for you to seek other ways of transportation to school.

  Thanking you in anticipation.

Although this is unfortunate and I am sure that AG has enjoyed travelling on the school bus in the past, I do not consider that reason enough to alter the 2:2:5:5 arrangement, especially as the father has already agreed that AG should spend Wednesdays with the mother. Consequently, it is further directed that each party shall be responsible for arranging transport to school when AG is in their care.

The father and the mother in the witness box and generally

25.  When considering matters of this nature the court is charged with assessing the character of both parties in the witness box. I should say at the outset that both parents struck me as being good parents who only want what is best for AG. They struggle however, in that their day to day interactions are strained and they do not appear to have developed a functioning co-parenting relationship. I accept though, that they are both able to provide AG with a loving and secure home.

26.  I also had the ability to see the mother’s cohabitant, Mr. B, in the witness box, who also appeared to have a good relationship with the children (notwithstanding a recent hiccup with CG). Generally, I accept that he is a positive influence in the mother’s household and that he provides valuable support to her. Mr. B confirmed that it was their intention to get married in due course, once the mother had obtained her decree absolute. 

Conclusions and order

27.  Having considered all of the above therefore, I shall make an order as follows:

i)  There shall be an order in terms of paragraph 1 of the Petitioner mother’s summons dated the 12 December 2018 namely that AG’s care shall be shared between the parties on a 2:2:5:5 basis during term time with effect from after the school Easter holidays. For the avoidance of doubt AG shall be in the care of the father on Mondays and Tuesdays and in the care of the mother on Wednesdays and Thursdays. In the absence of any other agreement between the party’s AG shall spend the first weekend after the Easter holidays with the mother and the weekends shall be alternated thereafter. There shall be no alteration to the arrangements for the school holidays and single public holidays.

ii)  There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs. The Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

iii)  For the avoidance of doubt it is further directed that each party shall be responsible for arranging transport to school when AG is in their care.

iv)  There shall be a further First Appointment hearing on the 7 June 2021 at 10:00 am. The issue of the s.18 declaration shall be adjourned to the same date.

v)  Both parties do personally attend that hearing.