YHY v. YKM

FCMP 235/2021

[2024] HKFC 49

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 235 OF 2021

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JUDGMENT

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INTRODUCTION

1.  This trial is concerned with the parties’ disputes over the future care arrangement of their child, who was born out of wedlock and is now slightly over 3 years old (“Child”).

2.  By an originating summons dated 8 November 2021 (“Originating Summons”), the Applicant/ Father commenced these proceedings to seek, inter alia, joint custody and defined access (including staying access). 

3.  In §5 of the Originating Summons, the Father sought a declaration pursuant to section 6 of the Parent and Child Ordinance, Cap 429 that he is the natural father of the Child.  By an Order dated 26 September 2022, Her Honour Judge E Liu granted leave to the Father to withdraw that paragraph of the Originating Summons. 

4.  The Father’s name was entered as the father of the Child on the birth certificate.  The Respondent/ Mother does not dispute that the Father is the natural father of the Child.

5.  I should mention that despite the parties are unmarried, the Father never applied for an order pursuant to section 3(1)(d) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) until this was raised in his counsel’s opening submissions. 

6.  The Father also took out a summons dated 24 October 2022 seeking an order that the first name of the Child be changed back to the first name as stated in the Child’s birth certificate. 

7.  At the trial, Mr Felix Li together with Mr Fergus Chan represented the Father.  The Mother was legally represented in these proceedings until shortly before the trial. 

BACKGROUND

8.  The Father and the Mother were both born in 1990.

9.  They attended the same primary school in Hong Kong.  They met each other again in 2008.  They commenced relationship in about 2015.  They separated once in 2018 and were back together in 2020. 

10.  They lived together in a rented unit in Shatin.  The Child was born in January 2021. 

11.  Their relationship deteriorated.  In August 2021, the Father moved away from their residence to live with his own parents. 

12.  As noted above, the parties remain unmarried.  The Father commenced these proceedings in November 2021.

13.  The Father works in the finance industry.  He used to be employed by an IPO sponsor company as a manager.  At the time of trial, he works as a vice president at a bank. 

14.  The Mother is an air hostess with an airline company.  There was a period of time when the Mother was on no-pay leave during Covid-19.  She resumed her flying duties in February 2023.

CURRENT CARE ARRANGEMENTS

15.  After the parties’ separation, the Child continues to live with the Mother. 

16.  By an Order dated 13 December 2021, Deputy District Judge J Lee granted interim access to the Father on every Monday, Wednesday and Friday from 6 pm to 9 pm and every Saturday from 10 am to 6 pm.  Such access shall take place at the Father’s home without the presence of the Mother.

17.  By consent, an Order was made by Deputy District Judge J Lee on 27 April 2022 that joint custody of the Child be granted to the parties.

18.  By an Order dated 26 September 2022, Her Honour Judge E Liu ordered interim access on the same terms as above save that there is no longer a requirement that access has to take place at the Father’s home provided that if the Father takes the Child out of his home during access, such outing has to be accompanied by the Father’s mother or domestic helper and is limited to places of restaurant, clinic, park and residence of his relatives.

19.  In February 2023, the Child started pre-nursery classes at a kindergarten in Ma On Shan.

20.  Starting from March 2023, in addition to the above access ordered by the Court, the parties managed to agree by themselves on arrangements to enable the Father (or the paternal grandparents) to send the Child to school during every school day and to pick up the Child from school for access every Monday, Wednesday and Friday.

21.  On the last day of the trial, the Mother’s evidence in court revealed that on 10 May 2023 (i.e. the day before), there was an argument between the parties on whether such arrangements for the Father to send and pick up the Child to and from school should continue.  Judging by §25 of the Mother’s closing submissions, it seems to me that such arrangements did not continue after 10 May 2023.

22.  Upon a request made on behalf of the Father at the conclusion of evidence and with the Mother’s consent, I made an order that the above requirement that access outside is limited to places of restaurant, clinic, park and residence of the Father’s relatives be removed.

THE PARTIES’ POSITIONS

23.  The Father’s stance as set out in his open proposal dated 3 April 2023 can be summarized as follows:-

(1)  The Father was open to the labelling to be attached and wished to focus on the real time to be allocated between the parties on the Child.

(2)  The Child to be under the Father’s care from Mondays to Fridays and resides with the Father during normal school weeks.

(3)  The Child to be with the Mother during weekends.  As the Mother is a flight attendant with varying work schedule, the Mother shall have a “2-day-1-night” staying access every weekend, in addition to extra day access in addition if her work schedule permits, to be confirmed at the beginning of each month.

(4)  If the Mother’s flight schedule permits and subject to the Child’s routines, the Mother could spend additional time with the Child over dinner access once during weekdays.

(5)  Usual holidays and special occasions be shared equally.

24.  It must be noted that this proposal was very different from what the Father sought in the Originating Summons.  In the Originating Summons, the Father asked for, inter alia, “staying access from every Thursday 6pm to Sunday 3pm” and “Day access on every Tuesday 6-9 pm” and holidays and special occasions to be split equally.

25.  By her open proposal dated 4 April 2023 (which was filed after she decided to act in person), the Mother proposes:-

“1. Despite joint custody was agreed by the parties at CDR, the other be caried and sole custody be granted to the [Mother].

2. Sole care and control be granted to the [Mother].

3. Access to the [Father] in the following manner:-

(i) Day access to take place on every Tuesday and Thursday from 6:00 p.m. to 8:00 p.m.;

(ii) Day access to take place on every alternate Saturday from 9:00 a.m. to 8:00 p.m. (week 1, 3 & 5);

(iii) Day access to take place on every alternate Sunday from 9:00 a.m. to 8:00 p.m. (week 2 and 4); and

(iv) By prior notice, the access day could be changed to the day with special occasion so to ensure the celebrating party could spend time with the Child.”

26.  On day 3 of the trial, the Father submitted an amended open proposal, the terms of which have been summarized and also slightly revised in his closing submissions as follows:

“1. Parties do have joint custody of the Child.

2. M has care and control of the Child.

3. F do spend time with the Child in the progressive manner as stated hereunder on a regular school week:

Stage 1 – From the date of judgment (e.g., 1 November 2023) to 3 years old

Child to be under F’s care on:

(a) Wednesday from 12:30pm to 9:00pm;

(b) Thursday from 12:30pm to 9:00pm; and

(c) Friday from 12:30pm to Saturday 6:00pm with 1 night of staying access.

Save and except if M produces her flight schedule and subject to the Child’s routine, M requests for changes of day of the week of F’s access time.

Stage 2 – 3 months thereafter (e.g., 1 February 2024 onwards)

Child to be under F’s care on:

(a) Wednesday from 12:30pm to 9:00pm; and

(b) Thursday from 12:30pm to 9:00pm to Saturday 6:00pm with 2 nights of staying access.

Save and except if M produces her flight schedule and subject to the Child’’s routine, M requests for changes of day of the week of F’s access time.

Stage 3 – 3 months thereafter (e.g., 1 May 2024 onwards)

Child to be under F’s care from Wednesday from 12:30pm to Saturday 6:00pm with 3 nights of staying access.

Save and except if M produces her flight schedule and subject to the Child’s routine, M requests for changes of day of the week of F’s access time.

4. In the event that the Child attends morning class F shall be responsible for picking up after school (time to be confirmed) and access commences therefrom; in the event that the Child attends afternoon class F shall be responsible for picking up the Child from M’s residence at 12:30pm.

5. Holiday access in the followings:

(a) During Stage 1 and/or Stage 2 above, the long school holidays are to be equally shared by the parties in principle, with the number of consecutive staying access to be no more than the respective number of consecutive staying access at respective stages (i.e., with the total number of days of F’s half share of access be comprised of multiple one/two night(s) staying access(es) with details to be discussed between the parties);

(b) Once Stage 3 is reached and thereafter, long school holidays to be equally shared by the parties in principle, with parties splitting (in chunks) each of Christmas, Chinese New Year, Easter, and Summer holidays of an academic year;

(c) For singular public holidays and/or singular school holidays, the parties do share the same equally in principle, on an alternative basis within an academic year calendar. (e.g., if M is to have Ching Ming Festival, F is to have the next upcoming singular holiday, e.g., Tuen Ng Festival etc.);

(d) The parties are to give one another priority on special occasions (i.e., F’s birthday, Father’s Day, M’s birthday, Mother’s Day) by way of ensuring the celebrating party spends time with the Child by way of extra day access if necessary; and

(e) The birthday of the Child is to be shared equally on alternate year basis (e.g., F in 2024, M in 2025 etc.).

6. If any party from time to time wishes to bring the Child out of jurisdiction for holiday / visitation purposes under their respective times with the Child, provided that basic information such as destination, travel itinerary, travelling personnel etc. are communicated to the other parent in advance, the other parent shall not unreasonably refuse such request and to provide his/her written consent to the other party and to co-operate with the relevant authorities if and when called upon

7. A progress report be called for on or before 31 October 2024 (i.e., when the Child reaches around 3 years 9 months old).”

27.  Whilst it was originally stated in the Father’s open proposal that he was open to any labelling, the Father’s opening submissions refer to case law dealing with concepts such as joint care and control or shared care. 

28.  In his closing submissions, the Father no longer insists that concepts/ labels such as joint care and control or shared care should be used.  Instead, as noted above, the Father has no objection to the Mother having care and control of the Child.

29.  By comparing the parties’ latest/ final positions as set out above, the remaining core issues that fall to be determined by the Court are:

(1)  Sole custody or joint custody;

(2)  The amount of access to be given to the Father, whether and when there should be staying access; and

(3)  The change of name of the Child.

THE EVIDENCE

30.  The trial took place over 5 days.  The Father and the Mother filed detailed affirmations in these proceedings.  They testified in court and were extensively cross-examined at the hearing.

31.  The Father’s mother (“Paternal Grandmother”) was called as a witness at the trial.  The Paternal Grandmother assisted the Father in taking care of the Child.  She filed two affirmations in these proceedings.  The Mother had an opportunity to cross-examine the Paternal Grandmother in court.

32.  I should say at this juncture that the parties’ evidence contains a lot of allegations against each other.  They criticized each other for being not suitable or not entirely suitable for taking care of the Child in various aspects.  According to the latest/ final proposals, both parties have now accepted that the Child will be spending a not insignificant amount of time with the other parent every week.  As such, I do not find it necessary to make any factual findings in respect of those allegations.

33.  The Court also received oral evidence from the social welfare officer in charge of the case (“Ms Lau”).

34.  Ms Lau prepared a social investigation report dated 13 April 2022 (“1^st SIR”), an updated social investigation report dated 9 September 2022 (“2^nd SIR”), and a further updated social investigation report dated 19 March 2023 (“3^rd SIR”) (or collectively the “SIRs”).

35.  Ms Lau is a very experienced social welfare officer.  She joined the Social Welfare Department in 1992 and was assigned to various units/ positions within the Social Welfare Department.  She had been with the current unit for about 4 years and handled about 30 cases relating to children custody. 

36.  Ms Lau was alive to the parties’ various allegations against each other as referred to above.  On the whole, she does not find any of the two parents to be not suitable for taking care of the Child.  In the 3^rd SIR, both parties were observed to have a positive relationship with the Child.

37.  I will further address her evidence when dealing with various issues below.

THE LAW

38.  The Court has power under section 10 of the GMO to make orders regarding custody and access of minors.

39.  The general principles governing such applications are set out in section 3 of the GMO, which provides:

“3(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 welfare 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; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and shall be exercisable by either without the other;…”

40.  While there is no statutory welfare checklist in Hong Kong,there are a number of factors that the courts are normally require to take  into account or considered when one considers arrangements concerning children.  Some of these mirror the welfare checklist under the Children Act 1989 in England.  Those factors are:

(a)  The recommendations made by the Social Welfare Report;

(b)  Recommendations made in any other reports and/or by other experts;

(c)  The ascertainable views of the child concerned (considered in the light of their age and understanding);

(d)  How capable each of the parents and any other person is, of meeting the child’s needs;

(e)  The parties’ child care plan;

(f)  Any physical/mental disability or illness of either parent;

(g)  The child’s particular physical, emotional and educational needs;

(h)  Sibling unity (if relevant);

(i)  The personality and character of the parties;

(j)  Any matrimonial misconduct affecting the children;

(k)  Any harm which the child has suffered or is at risk of suffering;

(l)  Any other factors which the Court considers relevant bearing in mind the child’s age, sex and background;

(m)  The status quo of the child and the likely effect of any change in her circumstances.

CUSTODY

41.  As noted above, joint custody of the Child was granted to the parties on 27 April 2022 by consent.

42.  The Mother was legally represented until shortly before the trial.  No application was taken out to vary the joint custody order.

43.  At trial, it is the Mother’s case that despite the joint custody order, she found it difficult to communicate and co-operate with the Father.  The Mother’s complaints are helpfully summarized in §56 of the closing submissions prepared by the Father’ counsel as follows:-

(a)  The Father making enquires with the security guard about males visiting the Mother’s home;

(b)  The Father’s complaint about the Mother leaving the Child at home alone at times;

(c)  The Father’s tendency to communicate with the Mother through lawyers’ correspondence;

(d)  The Father making reports to the police multiple times; and

(e)  The parties’ failure to cooperate on school matters.

44.  In her closing submissions, the Mother concluded her case on sole custody as follows:

“40. 由於雙方無法溝通，存在分歧也難以達成共識，引致本人為非非的決定有阻疑，因此本人認為單獨撫養權更符合霏霏的利益，本人亦在此承諾即使本人擁有單獨撫養權也不會未經呈請人同意移民，也會就教育及醫療徵求他的意見，並作出考慮，但本人不認同呈請人利用共同撫養權來操縱本人及霏霏，毫不尊重本人的考慮。”

45.  At trial, when asked by the Father’s counsel, Ms Lau emphasized that her opinion remained unchanged throughout her three SIRs that this is a suitable case for joint custody.

46.  The reasons relied upon the Mother in support of her request for sole custody were drawn specifically to the attention of Ms Lau by the Court.  Ms Lau confirmed that she had considered those matters and she did not find those matters making joint custody unsuitable in this case. 

47.  It was also Ms Lau’s evidence that whilst there was a clear lack of trust between the parties, she did not consider this case to be a high conflict case.  Whilst there was certainly room for the parties to improve on co-parenting, she considered that by recommending a joint custody order, it would facilitate the parties in this case to complement each other.

48.  I entirely agree with Ms Lau’s observations.  In fact, the evidence unfolded at trial revealed that, after the making of the joint custody order, the parties were able to make joint efforts in choosing kindergarten for the Child.  More notably, the parties were also able to agree on arrangements to enable the Father to send and pick up the Child to and from school outside access ordered by the Court. 

49.  As wisely said by Hartmann JA (as he then was) in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at §54, the fact that as a result of the breakdown of the relationship, strained relations between the parents is not of itself a reason to refuse to make a joint order of custody.

50.  In view of the above matters, I see no reason why the joint custody order in place should be varied.

THE FATHER’S ACCESS

51.  Presently, the Father has evening access with the Child for 3 times a week and a whole day access every Saturday.  He wishes to commence staying access with the Child as soon as possible and with a view to increasing to 3 nights a week in a progressive manner.

52.  In her final proposal, the Mother objects to staying access at the present stage.

53.  A lot of time during the trial was spent on exploring with Ms Lau the suitability of staying access in the present case by the parties as well as the Court.

54.  Ms Lau did not recommended staying access in the 1^st and 2^nd SIRs.  The existing interim access order was made largely on the basis of the recommendation contained in the 2^nd SIR.

55.  In the 3^rd SIR, after carrying out further investigation into the case, Ms Lau did not make any further recommendation.  She explained in court that as she was aware that the parties had decided to attempt mediation to resolve their disputes, she refrained from making any recommendations in order to leave room for the parties’ discussion.

56.  At the trial, Ms Lau was asked by the Father’s counsel to comment on the Father’s access proposal. 

57.  She explained that when considering when it would be suitable for staying access to commence for the Child, she took into account three important factors: (a) sense of security; (b) consistency in daily routine; and (c) the Child’s ability to express herself.  She made it clear that she considered staying access with the Father in the long run to be beneficial to the Child but it was a matter of finding the suitable timing having regards to those factors.

58.  As it was now clear that the parties were unable to resolve the matter through mediation, Ms Lau was invited by the Court to make recommendations on care and control and access, particularly staying access.

59.  In the morning of day 3 of trial, Ms Lau made her recommendations as follows:

(1)  Care and control to the Mother;

(2)  Access to the Father as follows:

From now to the age of 4: (a) Mondays and Wednesdays from 12:30 pm to 8:30 pm; (b) staying access from Fridays after school to Saturdays at 8:30 pm

From the age 4 to 6: (a) alternate Fridays from 12:30 pm to Saturdays at 8:30 pm; (b) alternate Fridays from 12:30 pm to Sundays at 8:30 pm; and (c) no more day access during the week

From the age of 6 onwards: (a) alternate Thursdays (after school) to Saturdays at 8:30 pm; (b) alternate Thursday (after school) to Sundays at 8:30 pm; (c) no more day access during the week; (d) long holidays according to school calendar to be split by taking turns to have the first half of each long holiday; and (e) single day/ special day to be split equally in the form of day access; and

(3)  Subject to the Court’s views, there be a supervision order for 12 months.

60.  The parties continued to explore the question of staying access with Ms Lau throughout the course of day 3.  After such discussion, Ms Lau expressed to the Court that she would like to revise her recommendations by adjusting the 3 stages above as follows: (a) the first stage will be from the age of 4 to 5; (b) the second stage will be from the age of 5 to 6; and (c) the third stage will remain from the age of 6 and onwards.

61.  From now to the age of 4, Ms Lau recommended the existing access arrangements to continue, namely (a) access every Monday, Wednesday and Friday from 5:30 pm to 8:30 pm and every Saturday from 10 am to 8:30 pm.

62.  When challenged by the Father’s counsel on the change of position, Ms Lau made it clear that she took the view that she should adjust her recommendations after taking into account the various matters raised with her by the parties during the course of day 3.  In particular, she considered that it would be better to commence staying access at a time when the Child would have a better ability to express herself in the view of the various complaints made by the parties against each other.  She explained that she did not want staying access to generate another source of conflict and the chance of that happening would be lower when the Child is able to express herself better to each of the parents.

63.  I have carefully considered the 3 SIRs and Ms Lau’s evidence in court as well as the criticisms made by the Father’s counsel towards Ms Lau’s change of recommendations.  I do not accept the criticism.  On the contrary, I find Ms Lau to be a very responsible and conscientious social welfare officer. 

64.  I accept her reasons for making the adjustments in her recommendations to be fair and reasonable.  I note that Ms Lau is only suggesting a slight adjustment in terms of the timeline by postponing the commencement of staying access for 1 year and meanwhile, the existing access will continue.  As noted above, while I do not find it necessary to make any factual finding in respect of a lot of the allegations made by the parties against each other, the fact remains that there is a clear lack of trust between these two parents. 

65.  At trial, the Father also seeks to run a case that as the Mother resumed her flying duties as an air hostess, it was questionable whether the Mother would be capable of taking care of the Child due to her work.  The Father’s case is that as he works with regular hours, if the Mother was going to be occupied by her work, the Father should be given more time to take care of the Child.

66.  The Father criticized the Mother for not providing to him her flight schedule.  The Father also criticized the Mother for not calling her maternal aunt (“Mother’s Aunt”), who at times assisted her in taking care of the Child, to give evidence in Court. 

67.  It suffices for me to say that Ms Lau carried out a very thorough investigation into this case and explained in court that she took into account the employment requirements of both parents. 

68.  Ms Lau confirmed in court that she had an opportunity to consider a flight schedule supplied to her by the Mother.  She understood that the Mother was not required to take on any long-haul duty.  She also confirmed that she did telephone interviews with the Mother’s Aunt.  She also interviewed her once in her office.

69.  For the avoidance of doubt, I have also considered other relevant factors and evidence as may be required by the “welfare checklist”. The Child is too young to ascertain from her view on the care arrangements. There is no physical/ mental disability on the Father or the Mother.  Nor does the Child have any special need of the Child.

70.  For all the above reasons, I agree with and endorse the recommendations made by Ms Lau on care and control and access.

CHANGE OF NAME

71.  I turn now to the Father’s application to change the name of the Child back to the one stated in her birth certificate.

72.  Having considered all the relevant evidence carefully, I reject the Father’s application for the following reasons:

(1)  Re W, Re A, Re B (Change of name) [2000] 2 WLR 258 as cited by the Father’s counsel is a decision on the change of surname, as opposed to first name, which is the situation in the present case.  The principles set out in that decision were largely based on the statutory provisions in England.  There is no equivalent provision in Hong Kong.

(2)  The Court is therefore guided ultimately by the best interest principle as this is a matter affecting the welfare of the Child.

(3)  The Child was born in January 2021.  The parties separated in about August 2021.  According to the Father’s case, he was notified by the Mother that she had changed the Child’s first name in October 2021.  The parties are not married.  There is no dispute that at the time when the Mother changed the first name of the Child, the Father did not have any parental rights and authority under section 3(1)(c)&(d) of the GMO.

(4)  It is the Mother’s evidence that she tried to consult the Father and when the Father ignored her requests for more than 10 days, she made the decision to change the name.

(5)  The Father’s counsel challenged the Mother’s evidence by referring her to the WhatsApp messages produced by the Father.  The Mother was able to show to the Father’s counsel and the Court that there was an obvious gap of time between the messages selectively produced by the Father.  I accept the Mother’s explanation.

(6)  The Father took out the Originating Summons in November 2021, which did not and does not include any request for changing the Child’s name.

(7)  The Father chose not to take out any application in respect of the change of name until October 2022.

(8)  Most importantly, the change of name came about in October 2021, meaning that the Child only used the first name on her birth certificate for about 9 months whereas the Child has been using her present first name since October 2021.

(9)  For the above reasons, I consider it is in the best interest of the Child that she should not be required to change her first name for a second time.

CONCLUSION

73.  Based on the aforesaid and having the best interest of the Child in mind, I make the following order:

(1)  The Mother’s request to vary the joint custody order be declined.

(2)  Care and control of the Child be granted to the Mother.

(3)  The Father shall have access with the Child as defined below:

From now to the age of 4:  (a) access every Monday, Wednesday and Friday from 5:30 pm to 8:30 pm and every Saturday from 10 am to 8:30 pm;

From the age of 4 to 5: (a) Mondays and Wednesdays from 12:30 pm to 8:30 pm; (b) staying access from Fridays after school to Saturdays at 8:30 pm;

From the age of 5 to 6: (a) alternate Fridays from 12:30 pm to Saturdays at 8:30 pm; (b) alternate Fridays from 12:30 pm to Sundays at 8:30 pm; and (c) no more day access during the week;

From the age of 6 and onwards: (a) alternate Thursdays (after school) to Saturdays at 8:30 pm; (b) alternate Thursday (after school) to Sundays at 8:30 pm; (c) no more day access during the week; (d) long holidays according to school calendar to be split by taking turns to have the first half of each long holiday; and (e) single day/ special day to be split equally in the form of day access;

For the avoidance of doubt, holiday/ single day/ special day access to commence only when the Child reaches the age of 6.

(4)  There be a supervision order for 12 months.  A progress report be called for by April 2025.

(5)  There be an order in favour of the Father pursuant to section 3(1)(c)&(d) of the GMO.

(6)  The Father’s summons in respect of the change of the Child’s name be dismissed.

74.  I also make an order nisi that there be no order as to costs as this is a children matter.