TRR v. RAR

FCMC 8382 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8382 OF 2008

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J U D G M E N T

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Introduction

1. This is an application by a Petitioner father for joint custody of the two children of the family, a girl, S, who is 14 years of age and a boy, J, who is 12. The Mother seeks sole custody. 

2. Although custody is in dispute, the day-to-day arrangements for the children are agreed. It is agreed that the children will continue to reside with their mother, who is presently based in Beijing. The father will continue to have generous access to them. This is then, primarily, a dispute over principle.

Background

3. The parties married on the XX October 1995, in London, UK. The father worked in the travel industry. Consequently the parties lived overseas and had a number of diverse overseas postings. Their last port of call was Beijing. The father is British and the mother is a Dutch passport holder. She was born in Suriname in South America and is of Caribbean descent. The children were both born in Holland.

4. Unfortunately the father is presently unemployed, having lost his job in February of last year. He is actively seeking employment at present. The mother is also not working, although she has worked in the more recent past in the interior design field. Consequently the parties are presently living on their savings. This is of some concern to the father. The mother says that she intends to remain in Beijing for the time being as the children are settled there. The father has based himself in Hong Kong for the time being as it is easier to obtain a visa in Hong Kong. The mother has obtained her own visa from Beijing and is no longer dependent on the father in this respect.

5. On the 17 July 2008 the father issued a divorce petition based on two years separation. He states that the parties had lived separately and apart since XX July 2006. The decree nisi was pronounced on the 11 February 2009.

6. The matter first came before me in January 2009. There is an interim order in place in relation to the finances dated the 25 February 2009. The mother was initially unrepresented. She has since been granted legal aid. In contrast the father was originally represented. He now represents himself. Presumably given his employment status he can no longer afford legal representation. The matter was initially set down for an FDR hearing. The mother refused to participate in this, notwithstanding the fact that she was legally represented at the time, making any meaningful negotiation virtually impossible. Consequently I was not able to give any indication to the parties concerning their ancillary relief. It is fair to say that the mother seemed emotionally overwrought at that hearing and effectively walked out. It then became clear that there was a dispute over custody. It is that matter that now falls to be determined. The issue of finances still needs to be resolved.

The issue

7. Should custody of the two children of the family vest in the sole name of the mother or should the parties have joint custody of them?

Each parties case

The husband’s case

8. The father maintains that the parties have effectively been joint custodians of the children in any event and that to change the status quo and what he terms the “default position” would be damaging to them. He refers to joint custody as being the “normal” order. He says in his opening that:

 I hope to demonstrate to the Court that it is in the best interests of our children, S and J R, that they be subject to the usual order of joint custody and that the Respondent’s application for sole custody is without merit.

I will be able to show that through out my children’s lives I have been a supportive and loving father to the children and that they have a close and loving relationship with me.  I will show that I take an active interest in their well-being and am concerned for their future development and educational needs.  I will also show that, whilst my relationship with the Respondent is difficult on some issues, we have both always tried to put the children’s best interests first.

I will use the findings and recommendations of a Court ordered social investigation report to support my argument that an order of joint custody should be granted.

I will use the Respondent’s affidavit to support my claim that an order for sole custody is not supported by relevant reasoning.

I hope I can get the agreement of the Court that it is in the children’s best interests that both parents are involved in their affairs and future plans.

I ask the Court to make order of joint custody.

The wife’s case

9. The wife seeks sole custody of the children. Her affidavit in support of her application is very short. She puts her position thus:

7.  Firstly, during the marriage, both the Petitioner and me have different views on a lot of things and as a result we always have arguments e.g. he wants us to go to United Kingdom or Holland while I want the children to continue to stay in Beijing where they have a lot of friends here and they learn Putonghua well.

8.  Secondly, when the Respondent left Beijing to work in Hong Kong in 2006, he seldom took part in the children’s life but only occasionally visited them when he came back to Beijing.  He only started visiting the children more and participated in their lives more when there is now a dispute on custody.

9.  Thirdly, since none of us including the children and me are in Hong Kong, if there is dispute over major decision of the children, the Petitioner and I need to go back to Hong Kong to have the matter resolved at the Hong Kong Court.  If I could not locate the Petitioner and there is urgent matter to be dealt with concerning the children, I could not give third parties e.g. school or hospitals to do things for the children because his consent is required.  I can imagine that would be the most undesirable situation.  In such circumstances, am I to travel all the way to Hong Kong to make an application?

10.    Despite the breakdown of the relationship between the Petitioner and me, I have never done anything to hamper the father and children relationship.  The Petitioner can still visit the children regularly time and he could travel with them out of Beijing and have fun.  I also appreciate that he has been the sole financial supporter of the children but what I need is stability and security.

11.    I have been my children main carer since their birth and I love them so much that I would take their best interest in mind when making all major decision for my children.  Of course I would consult the Petitioner on those important issues.  If the Petitioner is of the view that my decision is obviously wrong and not for the benefit of the children, he can always take the matter to court for adjudication.

The Law in Hong Kong

10. As I explained to the parties, the law on children continues to be a developing part of the law in Hong Kong. The umbrella provision governing applications concerning children, can be found at s.19 Matrimonial Proceedings and Property Ordinance, Cap. 192 where it is stated that the court has the power to make such order as it thinks fit for the education and custody of children under the age of 18 years.

11. The general principles governing such applications are set out in s. 3 of the Guardianship of Minors Ordinance, Cap. 13, which states that the welfare of the child is the first and paramount consideration of the court.

12. In addition there is a checklist recommended by the Law Reform Commission, which many Judges, myself included, have found useful when determining issues relating to children. For ease of reference I have reproduced that checklist below.  I will not refer to this checklist in its entirety when considering the issue, but I will refer to those sections which seem to me to be of particular relevance when considering the matter overall.    

Checklist 

13. (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)    (a broader formulation along the lines of) 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 under this Ordinance in the proceedings in question;

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

Joint Custody v Sole Custody

The Law in Hong Kong

14. Given that the father is acting in person, I have reproduced an excerpt below from the case SEB v ZX (Custody) HKFLR, which both parties have referred me to, where I set out the law in Hong Kong on joint and sole custody. The mother’s solicitor has referred me to this case. The father also seemed to have a full grasp of the relevant principles.

Joint custody means that the parents should be able to make the major decisions concerning their children’s life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively. The report [Law Reform Commission report] describes it thus

“2.32 Joint custody is where the court grants custody to both parents, although physical care and control is usually granted to only one of them.   Liu explains the rationale behind the joint custody order: that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parties are given that right.    ‘Such order symbolizes divorced or separated parents playing a joint role in the upbringing of the child and neither is excluded’”.

5.    Sometimes orders for joint custody are aspirational.   They are made in the hope that the parties’ will be able to work towards co-operating with each other in the future.

15. In that case sole custody was awarded to the Father with shared care to both parents. I referred to the issue of so-called aspirational orders again in MJP v JWP FCMC 9154 of 2008 dated 16 December 2009. In that case I referred to a recent Court of Appeal decision in Hong Kong where an order for joint custody was replaced with an order for sole custody.  The Hon Mr Justice Rogers did so in part because of the lack of co-operation between the parties. That is not the case here.

16. It has also been argued that joint custody is not appropriate where the parties are living or intend to live in different jurisdictions. I referred to this in MJP v JWP FCMC 9154/2008 (presently unreported). In that instance, mother wished to live in the UK and the father intended to continue to reside in HK.

Custody

120.  There is still however, the issue of custody to determine.  The Mother seeks sole custody on the basis that this is usual where the parties are living in different jurisdictions.  Although that might be the case in part, there have certainly been other cases where orders have been made for joint custody either by consent or otherwise where the parties are living in different jurisdictions (e.g. M v B, FCMC 6078/2008).

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122.  I am also conscious of the fact that the Mother will be returning to the UK where the assumption is that all parents have joint parental responsibility in any event. In those circumstances I intend to make an order for joint custody. In part this is to recognize the Father’s continual role in the lives of the children going forward.

17. The father has said that joint custody is the normal or usual order in our courts. I do not agree. Rightly or wrongly it is one option open to both parents. It is fair to say though that the Law Reform Commission report on Child Custody and Access dated March 2005 challenges this. The report made the following observations:

Custody orders

10.4  In our view, the language of custody orders implies something akin to ownership of a child.  The former common law, still accepted in Hong Kong, which gave the custodial parent virtually all rights concerning the upbringing of the child, inevitably leads to more cases being contested in the courts.  To say to non-custodial parents that the only right they retain is to have access to the child, and some undefined residual rights which may only be exercised if the non-custodial parent finds out that they are being infringed by the custodial parent, is to invite continuing conflict between the child’s parents.

10.5  the retention of the current regime of custody orders does not accord with our earlier proposals on parental responsibility, in which we advocated the continuing active involvement of both parents in their child’s upbringing after divorce.  We therefore proposed in our Consultation Paper be repealed and replaced by new orders more appropriate to the parental responsibility model…

Unfortunately the Law Reform Commissions recommendations have still to be acted upon. 

Discussion

18. I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  In addition I heard from the social welfare officer who prepared the international social investigation report, a Mr L.

Should custody of the two children of the family vest in the sole name of the mother or should the parties have joint custody of them?

(a)   the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

19. Both of the children are old enough for their own views to carry considerable weight. The only medium available to the court for this is the International Social Investigation Report. From this is seems that both children are comfortable with the current arrangements. The younger child, the son, would like to see more of his father. 

The children’s physical, emotional and educational needs

20. It seems that these are being met at present by both of the parties. The mother caters for more of their day-to-day needs, as she is the caretaking parent. They attend the British school in Beijing. The mother would like them to continue to do so as she says that the boy, J, has been adversely affected in the past by the parties’ nomadic lifestyle. She seemed a little confused but said that she would like both children to stay until they had finished their GCSE’s, which she thought would be in two years time. In fact that is probably when the daughter, S would finish her GCSE’s.

(b)    the nature of the relationship of the child with each of the child’s parents and with other persons;

21. The father says that he has a good relationship with the children. I accept that to be the case. I also accept that is unlikely to be the same as that of the children’s relationship with their mother.

(c)    The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

22. Much was made of the fact that the children are of mixed race parentage and that they hold dual nationality.

(d)   The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

23. Both parents expressed appropriate concern about the children’s education going forward. The father was worried about the financial feasibility of the mother continuing to reside in Beijing with the children. He described it as “financially a catastrophe”. He said that it was not sustainable. He had clearly though thought about the alternatives in a sensible and logical way, one of which was the possibility of the children being educated in the UK. He said that given that the children were of dual nationality that he would like them to finish off their education in the UK in any event as he thought that would be a good preparation for tertiary education.  Likewise the mother’s reasons for wishing to stay in Beijing were understandable – she wished to provide the children with some stability, at least in the short term. She seemed to be relying on the father being able to find alternative employment in the not too distant future. In the final analysis she was willing to relocate back to Holland. 

(e)    Any family violence involving the child or a member of the child’s family;

24. This was not an aspect that was dealt with in the parties’ affidavits. However it became clear, once the parties were in the witness box, that their break up had been a difficult one. The father had had an affair. The mother said that the father initially disappeared for three months. She admitted to throwing a brick through his car window on one occasion and of scratching his face on others, to the extent that he was unable to go to work. It was clear that the mother felt that she was justified in taking this course of action. She also admitted to administering what she described as mild corporal punishment on the children and said that this was normal in Suriname. On one occasion she said that she had “smacked” the son and that he had fallen on the ground. She said that the son had been “play acting” and was clearly angry with the father for “giving her hell” about it. The mother’s attitude is of very real concern. She was clearly angry that the father had not revealed his address to her and queried the feasibility of joint custody in such a scenario. The husband’s explanation was reasonable however. I accept that he took this course of action for all the right reasons. He did not wish there to be any further incidences. He had been concerned. I accept that the concern was genuine. Going forward he is willing to undertake to provide his residential address to the wife. This seems to be a sensible compromise and is a solution to the impasse that has developed.   

(f)  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;

25. I accept that the mother is capable of meeting the children’s day-to-day needs. I also accept, having seen the father in the witness box, that he is likewise capable of meeting the children’s needs. The wife complains that the father is not as involved in the children’s day-to-day experience as she would like. For example, that the son needs help with his English studies, help that she is not able to provide. I would encourage the father to become more involved in the day to day, especially in so far as homework is concerned.

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

Urgent matters

26. The mother argues that given that neither side knows with any certainty precisely where they will be based going forward that it is not feasible to have joint custody. She is particularly concerned that she may not be able to locate the father quickly enough in the event of an emergency. The father countered this by saying that he would be willing to sign a general waiver so that in the unfortunate event that either child was involved in an accident that it would be possible for the mother to ensure that she was able to take whatever action was appropriate in the circumstances including any emergency medical procedures. I agree that this should be sufficient to allay the mother’s concerns in this respect.

Schooling

27. It seems that there was some confusion about the level of communication between the father and the school. He had been involved in some of the major decisions concerning the children’s schooling – in particular both sides described a situation where it was ultimately decided that J, should be kept down a year. Both parents were involved in that decision making process. The mother still believes that the decision to keep him down a year was wrong; notwithstanding the fact that by all accounts he is now thriving academically the father would like to be directly in contact with the school. The mother was not opposed to that. In the past she had asked the school to contact her as opposed to the father. This followed an occasion when the school had called the father to seek his advice, when she felt that given that the children were living with her that it would be more appropriate for the school to contact her in the first instance. Going forward I would expect both parents to receive all appropriate notices from the school, together with school reports etc. 

Communication

28. The mother says that it is difficult to communicate with the father at times. She says that his phone is not always on. However she acknowledged that she always involved the father in any decision making process about the children and that that would continue. The father acknowledges that aspects of the parties’ relationship continue to be problematic but that the two of them are able to put the children first and to communicate about them. It is only right and proper that this should be encouraged and that it should continue. I must say though that I was concerned when the wife admitted to recently inviting the father to her home in Beijing to discuss matters and to then “locking him in” when an argument ensued.  The social welfare officer recommended that the parties consider ways of improving their communication. I agree. I would suggest that the parties consider taking a parenting course – possibly an on line parenting course, with a view to improving the way in which they communicate with each other about the children going forward. 

Hong Kong Jurisdiction

29. The mother is concerned that the parties will need to come back to Hong Kong in the event that there is any disagreement between them about the children, which needs to be resolved by the courts. She advances this as an argument against joint custody.  I do not agree. The divorce proceedings have taken place in Hong Kong. No issue has been taken with respect to jurisdiction. Although the parties may need to come back to Hong Kong if there is a further issue concerning the children, that will be the case whether there is an order for joint or sole custody. Infact the mother seems to acknowledge this in paragraph 11 of her affidavit set out above.

30. In many other countries there is already a concept of joint parental responsibility in place. The wife says that that is not the case in Holland. No expert evidence was produced in respect of the wife’s assertions about that. Consequently I cannot take that matter any further.

Convenience

31. The mother also argued that as the parent with care and control that it would be more convenient for her to have sole custody of the children. Although that might be so, I do not accept that convenience of itself is a valid reason for sole custody to be awarded to the mother over joint custody to both parents.

The Recommendations made in the Social Welfare Report

32. Recommendations made to the court in social welfare reports, although not binding are persuasive.  If the court decides not to follow the recommendations made then reasons must be given. In this case the International Social Welfare officer, Mr L recommends joint custody as follows:

CONCLUSION

64.    Both Mr. R and Madam R enjoy good and stable relationship with the children.  The children are also satisfied with the relationship with both parents.  The current access arrangement looks smooth as well.

65.    Apparently, Mr. R is responsible for the family and children’s expenses while Madam R is responsible for the children’s daily care.  Since Madam R has been looking after the children well, this social worker recommends that she can have the care and control to the children.

66.    Nevertheless, the children’s future care arrangement has some uncertainties.  First, Mr. R’s only promised to contribute to the family and the children financially until June 2010.  Second, Mr. R will leave China in March 2010 and Madam R’s visa also expires next year.  In view of the above factors, this social worker recommends that joint custody should be granted.  Mr. R can have reasonable access to the children.  Review of the family’s situation can be considered.  It is also expected that communication between the parents can be improved.

I accept his recommendation.

Conclusion

33. In the circumstances it seems to me that this is an appropriate case for me to exercise my discretion in favour of a joint custody order, subject to the father’s undertakings as set out above.

Costs

34. Given the nature of this dispute I think it is accepted by both sides that there should be no order as to costs (see London Borough of Suttons v Davis (Costs) No. 2 [1994] 2 FLR 569). 

35. Consequently I will make an order as follows:

UPON the Petitioner undertaking to provide the Respondent with his residential address and contact details,

AND UPON the Petitioner undertaking to provide the Respondent with a waiver to ensure that the children will have access to appropriate medical care in the event of an accident taking place,

IT IS ORDERED THAT:

There shall be joint custody of the two children of the family, namely SMR, a girl born on the XX December 1995 and JRR, a boy born on the XX September 1997, with care and control to the respondent mother and reasonable access to the petitioner father. There shall be no order as to costs.