SG also known as SG v. SWT

FCMC 12057 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12057 OF 2013

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JUDGMENT
(Access arrangements)

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Introduction

1. This is the respondent father’s application for defined access to the two children of the family who are now aged 14 and 11 years. The parties have agreed joint custody with care and control to the petitioner mother. The outstanding issues concern the finer details of the access arrangements.  In essence the father asks for an extended weekend access once a fortnight plus particular arrangements during the school holidays to account for his work commitments. There are also other smaller related issues concerning the times for drop- offs and pick-ups etc which the parties have been unable to agree upon.

2. Ms Rattigan for the petitioner mother summarized the issues to be determined at trial in her opening submissions thus:

52. The issues that the parties cannot agree on and the Court will need to determine are as follows;

i. The exact arrangements for the mid week access,

· Which evenings;

· Whether the children attend access on two evenings mid week together or whether they attend on one evening each but separately i.e. J on Tuesday and A on Thursday;

ii. Whether the alternate staying access at the weekend should be two nights (Friday and Saturday) or extended to three (Thursday, Friday, Saturday; or Friday, Saturday, Sunday) i.e. whether the children should go to school from the Father’s house on Friday or Monday morning;

iii. How the long Summer holiday should be divided; should the Father have the first half and the Mother the second, or should the parties share the summer school time in the middle of the holiday and split the time before and after as they have done over the recent summer holiday.

3. Notwithstanding the fact that both parents are extremely bright, they have nevertheless been unable to compromise these relatively small outstanding matters in a sensible fashion. The litigation has mushroomed as a result. By way of an example the closing submissions and replies ran to over 120 pages without attachments.  

4. The parties are well represented by specialist firms and attempts have been made, quite properly to settle these outstanding issues, including two Children Dispute Resolution hearings – but unfortunately without success.   

The law in Hong Kong

5. The general principles governing applications relating to children’s issues are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which states that the court:

(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;

6. It almost goes without saying that it is generally accepted that it is important for children to have an ongoing relationship with both of their parents post divorce. On occasion this is hard to achieve given the high levels of animosity and conflict that sometimes exist between parties post separation and divorce, as here. In such a situation the court can only attempt to put in place workable structures for access/contact. Often, as in this case, there may be several different options – all of which are likely to work perfectly well if approached by all of the parties concerned in the right frame of mind i.e. in a spirit of acceptance and compromise. None of them are likely to work as well as they might, if not.

The issues

7. I will approach the outstanding issues under discussion in the following order:

·   Some general observations and principles

·   The weight to be attached to the views of the children

·   The structure to be put in place for term time access including the issue of extended weekend access

·   The structure to be put in place for holiday access

·   Other miscellaneous items not covered by the discussion above

Background

8. XXX………XXX.

9. XXX………XXX.

10. XXX………XXX.

The litigation to date in relation to the children

11. The following orders have been made with respect to the children to date:

a) 5 December 2013 – an order was made by consent that the parties have joint custody of the children with care and control to the Petitioner mother;

b) 14 January 2014 – an order was made by consent in which the parties agreed inter alia that the father would move out of the matrimonial home and that the access arrangements would be reviewed at the Children’s Dispute Resolution hearing set down for hearing on the 10 April 2014. Interim access was agreed as follows:

Access during school term time

a.  For weekend access on alternate weekends collecting the children on Friday after school or extra-curricular activities at school and returning them to the Petitioner’s home by no later than 6:45pm on Sunday.

b.  Following the expiration of two months upon the date the Respondent vacates the Former Matrimonial Home, for weekend access on alternate weekends collecting the Children on Thursday after school or extra-curricular activities at school and returning them to the Petitioner’s home by no later than 6:45pm on Sunday.

c.  During the weekdays, the Respondent shall enjoy access on every Monday and Wednesday evenings unless otherwise agreed in writing between the parties, from after school or extra-curricular activities at school finish and returning them to the Petitioner’s home by no later than 7:00pm.

d.  Any extra-curricular activities or tuitions scheduled for the Children at the Petitioner’s home on every Monday and Wednesday will take place at the Respondent’s home.

e.  Any extra-curricular activities or tuitions scheduled for the Children at the Petitioner’s home on every alternate Friday and subsequently on every alternate Thursday and Friday as per paragraph 1 (b) above will take place at the Respondent’s home.

f.  Each parent shall be allowed to be present at the children’s extra-curricular activities on Saturday and Sunday regardless of which parent is enjoying access.

The mother, for reasons that will be discussed in more detail below, has never complied with paragraph 1 (b) above. 

c) 10 April 2014 (filed on the 9 June 2014) – an interim order which was not made by consent that:

1.  Access during Chinese New Year and Easter holiday:

(a) The Petitioner (mother) shall care for the children during the Chinese New Year vacation period in 2015;

(b) The Respondent (father) shall have access to the children during the Easter school vacation in 2015;

(c) The Chinese New Year and Easter holiday shall be alternated between the parties each year thereafter.  The children shall spend every Chinese New Year with the Petitioner on every odd year and Easter with the Petitioner on every even year.

2.  Access during single public holidays or single school holidays (such as teacher training days):

The parties shall alternate the public holidays or single school holidays on a rolling basis.

3.  Access during the school summer holiday:

The Respondent shall have access to the children during the forthcoming summer holiday period of 2014 as follows:

(a) from 6pm on 16 June 2014 until 6pm on 7 July 2014;

(b) from 6pm on 19 July 2014 until 6pm on 30 July 2014;

Each parent that is not enjoying access with the children and when they are in Hong Kong may enjoy access in the form of lunch or dinner two or three times each week on alternate days.

4.  Access during Christmas and new Year:

The Christmas and New Year holidays shall be divided into 2 halves, where the first and second halves shall be alternated between the parties.  The Respondent shall enjoy access during the [first] half of Christmas holiday for the year of 2014 and every even year thereafter.  The Petitioner shall care for the children during the [first] half of Christmas for the year of 2015 and every odd year thereafter.

5.  Access during Diwali

The Petitioner shall care for the children during Diwali of 2014 either in Hong Kong or abroad, and the Respondent will have access from 2 May 2014 to 7pm on 6 May 2014, the public holiday (inclusive).  For the purposes of these holidays the parties agree that each of them shall be entitled to take the children out of school for a maximum of 1.5 days.

FURTHER IT IS ORDER that :-

10. The parties shall appoint a parental coordinator to assist them in making practical arrangement for the children going forward.

The father agreed that he would not, at that time, insist on extended weekend access. Term time access was to continue otherwise as set out in the order dated the 14 January 2014. It should also be noted that although the parties attempted to appoint a parental co ordinator, unfortunately they could not agree on the terms of engagement. I do not intend to go into any detail about who might be to blame for this. I would however reiterate my view that it seems to me that these particular parents might benefit greatly from the involvement of a parental co ordinator i.e. an impartial third party decision maker who can assist them in making decisions on small matters about their children when they cannot.  

d)     9 April 2015 – an order was made by consent in relation to the children’s summer school holidays for 2015 as follows:

FCMC 12057 / 2013 SUMMER ACCESS AGREED
Wednesday, 10th June 2015 from after school  to 6:00 pm	Children with Father
Wednesday 10th June 2015 at 6:00pm to Wednesday, 17th June 2015 in London at 10:00 am	Children with Mother
Wednesday, 17th June 2015 at 10:00 am to Sunday 12th July 2015 at 10:00 am	Children with Father
Sunday 12th July 2015 from 10:00 am to 7:15 pm	Children with Mother
Sunday 12th July 2015 at 7:15 pm to Wednesday 15th July until Summer School ends on that day	Children with Father
After Summer School ends on 15th July 2015 to 6:00 pm 7th August 2015	Children with Mother
7th August 2015 at 6:00 pm to Wednesday 12th August 6:00 pm	Children with Father
Wednesday 12th August 2015 from 6:00 pm to Monday 17th August 2015	Children with Mother
Term Time Access to resume on Tuesday 18th August 2015
Weekend of 22nd August 2015	Children with Mother

e) 9 April 2015 – an order was made setting the matter down for trial and giving directions inter alia with respect to the appointment of a child psychologist to prepare a report for court purposes.

The present arrangements for the children

12. As things stand at present the father continues to see the children each Tuesday and Thursday after school (this variation was agreed to by consent) and on alternate weekends during term time. On Tuesday’s the children currently go to H club straight after school. This ends at 4:00 pm.  Either the domestic helper or the father picks the children up from the H club and takes them to his home. The children have supper with him and they return to the mother’s home at 7 pm. This same process is repeated on Thursday’s save that the children do not have H club. The father tries to leave work early on both Tuesdays and Thursdays and the mother generally uses this opportunity to work a bit later.

13. On weekends the children currently stay with their father on alternate weekends from after school or extracurricular activities on Friday (there is some suggestion that A may have some therapy/counselling on Fridays after school going forward), until Sundays at 6:45 pm. The children go back to their mother’s home first to drop off their school bag and to pick up their gear for the weekend. The children have a number of activities during the weekend, including golf and rugby. Each parent is responsible for taking them to these activities when they are in his or her care. On Sundays both parents attend the rugby training and matches and it is generally agreed that each parent may attend their extracurricular activities otherwise.  

14. To date the parties have split the school holidays as set out above.

The up to date proposals made by each parent

15. In Ms Rattigan’s closing submission she summarizes the basic principles which govern the mother’s proposals as follows:

The mother’s proposals

24. … However, there are basic principles, which govern the Mother’s proposal, that when applied can be seen to be really quite straightforward.  These principles are:

(1) In lieu of an extended weekend, the Father is to have the lion’s share of the public holidays, the Professional Development days (“PD”), the Parent Teacher Conference days (“PTC”) and Thanksgiving.  The Father has 6 weeks holiday each year and has stated he can be flexible at work, the extra non-public holidays that this proposal gives him should not in fact prove too much of a concern as he can, if he wishes take time off in advance for these dates;

(2) Whilst the weekends are generally alternated, if a public holiday falls on a Friday or a Monday of a weekend that is the Mother’s, the weekend will be swapped to allow the Father to enjoy an extended weekend with the children;

(3) If a public holiday falls on a Friday before the Father’s weekend and the Father, therefore, has the extended weekend, his access will begin from the Thursday evening of his usual access, in order to extend the weekend further;

(4) The long school holidays (Christmas/New Year, CNY, Easter, Summer and Fall break) are to be taken as starting at the end of the last day of school and therefore the Parent who has access for the holiday (or the first half of the holiday) will have their access begin from the end of the last day of school (subject to collecting their belongings or changing at the Mother’s if it is the Father’s access) and, therefore, that first weekend following the end of school will form part of the holiday;

(5) The Mother will always have the children for the weekend before school resumes after a long holiday, which will then re-start the term time alternating weekend access; so the Father will have the following weekend;

(6) Long school holidays are either divided in half (Christmas/New year and Summer) or alternated throughout the year from year to year.

25. These principles can be applied for the whole calendar year and, therefore, everyone will know for a whole year in advance what weekend and/or holiday is to be spent with which parent.  The School calendar is published in May each year and finalized in July/August when the Parents can finalise the access for the year ahead.

26. The Mother’s proposals also mean that there is far less chopping and changing and toing and froing between access, such that the practice in the past, for example, of the Father having access on a Thursday from after school until 7.00pm, then the Mother having access for her public holiday the following day on the Friday until 6.00pm before the Father’s weekend when the children would return to the Father for the weekend, will now not happen; the Father will have access from after school on the Thursday through to Sunday evening at 7.00pm. The Mother’s proposal means that the chopping and changing is avoided on many occasions throughout the year.

27. The Mother’s proposals are as follows:

A. Term Time

(i) Weekend Access

This will remain the same, namely alternate weekend staying access from Friday after school/ECA’s to Sunday evening.  The Mother has agreed that the time for returning can be slightly later at 7.00pm.

(ii) Mid-Week Access

This should also remain the same, namely every Tuesday and Thursday from after school or ECA’s /H club to 7.30pm.  Again, the Mother has agreed that the time for returning home is extended from the current time of 7.00pm., but cannot agree to it being extended to 8.00pm from 2016 for A especially, as she simply could not cope with it.

B. Single Public Holidays / PD days / PTC days / Thanksgiving

(i) Such is the Mother’s concern about the negative impact extended weekend access will have on the children she is prepared to concede the majority of these days to the Father as set out in the Calendar produced at trial, Exhibit [P-1], so long as the Father’s alternate weekend access remains from Friday to Sunday.

(ii) If alternate Weekend Staying Access is extended from Friday to Monday morning:

(a) These days should be rotated equally between the parties on an alternating basis with pick-up time at 9 am and drop off at 7.30 pm.

(b) The Mother will continue to have the children on the ½ day Parent Teacher Conference Days in order to undertake the necessary administrative tasks with the children.

C. School Holidays

LONG SCHOOL HOLIDAYS (FALL BREAK; CHRISTMAS / NEW YEAR; CHINESE NEW YEAR; EASTER / SPRING BREAK)

General Principles

· Fall Break, Chinese New Year and Easter holiday, and the first and second halves of the Christmas/New year holiday, are to be alternated every year.  However, given the indications by the Learned Judge, the Mother is prepared to accept the proposal that the Christmas/New year holiday be treated as one holiday and alternated with the first and second half of the summer holiday such that the parent who has the Christmas/New year holiday has the second half of the summer holiday the following year.

· Going forward, whichever parent is to enjoy access to the Children for a particular holiday (or the first part of the Christmas/New Year holiday if it is not to be alternated with the summer holiday) is to have the Children from after school on the last day of school before the holiday subject to the Children going to the Mother’s home to change first.  This again avoids chopping and changing if the weekend at the end of the school term is not for the parent who is enjoying the holiday with the children and also means that that parent can take advantage of much cheaper flights that are available if they travel before the weekend.

· The Children will be returned to the Mother for the weekend immediately before they return to school after the long school holidays and that begins the alternating term time weekend access such that the following weekend will be the Father’s access.

· If the Christmas/ New Year holiday continues to be divided, the Children should not have to travel on the key holidays such as Christmas Eve and Christmas Day, New Year’s Eve and New Year’s Day.

(i) Fall Break

This holiday is to be alternated.  The Mother had access for this holiday in 2015 from after school on Friday 25^th September, next year it will be the Father. As this Fall break does not coincide with other Hong Kong schools’ holidays, the parent who has access on this holiday needs to consider the children’s team sports and other commitments they may have.

(ii) Christmas and New Year

The first half and the second half of the holiday are to be alternated and the changeover is to be undertaken at the halfway point.  Subject to the alternate proposal of the Christmas / New year holiday being taken as one and alternated with the two halves of the summer holiday - the Mother is to enjoy access for the 2015 Christmas holiday from after school on Friday 18^th December through to 2.00pm on Tuesday 29^th December and the father will enjoy access for the 2015/2016 New Year from 2.00pm on Tuesday 29^th December 2015 through to 7.30pm on Friday 8^th January 2016.

28. If the Court decides that the Christmas/New Year holiday is to be treated as one and alternated with the two halves of the summer holiday, the Mother’s proposal is that this should begin this year with her having the Christmas/New Year holiday and the second half of the summer holiday.

(iii) Chinese New Year

This holiday is to be alternated.  Unless due to exceptional work demands a swap is agreed with a minimum of 4 weeks’ notice.  It is the Father’s turn to have this holiday in 2016 from after school on Friday February 2016 through to 7.30pm on Friday 12^th February 2016.

While the Father does not want to have Chinese New Year in certain years, 2016 being one of them, the Mother has already made it very clear that cannot swap her 2016 Easter access with the Father’s 2016 Chinese New Year as Easter 2016 is the first anniversary following her mother’s death and her family have import commemoration prayers in India or in Malaysia to undertake over this period.

While the Father has proposed that in order to accommodate the Mother he will take the children to Malaysia for this event, and allow access for the day this is not agreeable to the Mother at all for a number of reasons: Firstly, it is entirely disruptive, and for such an important occasion unacceptable that the children should just have a day’s access to the Mother and their maternal family; secondly it is not known at present how long the ceremonies will be or indeed where they will be held; Thirdly this is also a time that the children should be able to be with the maternal family for the holiday, they were close to their grandmother and it is important that they can mourn her with their maternal relatives in their Hindu custom; Fourthly the distance between where the Father proposes he and the children stay - usually in Batu Ferringhi - and the Grandmother’s home on the mainland is at least an hour and a half away on a best case scenario without traffic, and could take up to 3 hours (for the children) to 6 hours (for the Mother) depending on the traffic.

(iv) Easter / Spring Break

This holiday is to be alternated.  As set out above the Mother is to have this holiday for 2016.

(v) Diwali

Going forward this will only involve a weekend.  If this holiday falls on the Father’s access weekend, the weekend will be swapped.  The Mother can take the Children out of school for half a day on the Friday.  Whilst this is a special and unique holiday, if the Father insists on “fairness” this allowance for Diwali can be reciprocated for the Father sometime during the year, subject to the school and the Children’s exams, homework and projects, etc.

(vi) Summer Holiday for 2016 and 2017

General Principles

· Approximately 8 weeks - to be shared equally as far as possible.

· To be divided into 4 blocks and alternated between the Parties.

· Any time the Children spend in a summer school programme will be divided equally between the Parties.  This can be reviewed for 2018 onwards when J may no longer attend summer school.

As stated above, the Mother would be amenable to alternating the Christmas/New Year holiday with the alternating first and second halves of the summer holiday.

D. SIGNIFICANT EVENTS

(i) Children’s birthdays - J (XX^th January), A (XX^th March)

The Children will spend their birthday with the parent whose access it is on that day.  If the Children state a wish for an alternative arrangement in any given year, the Mother proposes that the Parties allow the request to the extent practicable.

(ii) Mother’s birthday (XX^th July)

If the Mother’s birthday does not fall during her summer school holiday access period it will be treated as a separate day and she will have access to the children from 9.00am to 8.30pm on that day.

(iii) Father’s birthday (XX^th May)

If the Father’s birthday falls on a Friday before, or the Saturday or Sunday of the Mother’s scheduled access weekend, the weekend will be swapped to allow the Father to spend his birthday with the children.  If it falls on any other day, the Father can have dinner with the Children.  This would be subject to the Father taking into consideration the Children’s exams/major projects/homework that may be due the next day; notwithstanding this principle, maximum free time should be prioritised on the actual birthday day.  The Father can discuss the pickup time with the Children, with the drop off time being at 8.30pm.

(iv) Mother’s Day

If Mother’s Day does not fall on the Mother’s access weekend, the weekend will be swapped so that she can spend it with the Children.

(v) Father’s Day

Fathers’ Day falls during the school summer holidays and will be included in the Father’s summer holiday access.  If not it will be treated as a separate day and the Father will have access to the children from 9.00am to 7.30pm on that day.

29. The Mother’s case and her proposals centre around arrangements that will work best for the children.  They address Dr. L’s concern about there being too much chopping and changing around access.  The Mother is opposed to extending weekend access, not because she wants to limit or restrict access in any way but because she knows that this is just not going to work for J and A.  The children have repeatedly told the Mother that they do not want extended weekend access.  They also told Dr. L and the SWO that they did not want extended weekend access.  The Mother is opposed to extended weekend access not because it suits her, but because it will not suit the children.

30. The children both have issues that they have to deal with, they require a great deal of organization and help that the Mother has always given them.  The Father has not and does not provide the support the children require and while he says that he can easily do it the simple fact is that he has not done so - and did not do so during the 18 months of separation leading up to the trial. It is the Mother’s case that this shows that he cannot do it and it is the children who will suffer as a result.

16. The mother produced a copy of the school calendar during the trial which encompasses her proposals as set out above. The father said that he found it very confusing. I tend to agree, although I am sure that it could be workable if the parties were perhaps on better terms. The difficulty is that there were so may caveats and alterations depending on the mother’s stated principles, that there was no basic rhythm to the access schedule – especially during term time.

The father’s proposals

17. The father’s proposals are set out in the document entitled the Father’s Proposals for Access dated the 9 October 2015 as follows:

Father’s Proposals for Access

School Term Access

1. Weekends

The children shall spend alternate weekends with F from Friday after school to Monday start of school.

On Friday the children will go from school to M’s home to drop off their bags, collect what they need for the weekend and for Monday, and then go to F’s home.  F to deliver the children to school on Monday morning.

2. Weeknights

Tuesday: both children go directly from school to F’s home after H Club (approximately 4.10pm).  F will return the children to M’s home at 7:30pm.

Thursday: on alternate Thursdays A or J individually will have dinner with F at his home after completing their homework at M’s home.

In J’s case, he will leave M’s home at 6:00 pm and return at 8:00 pm to take into account additional homework he may have.

In A’s case, she will leave M’s home at 5:30 pm and return at 7.30pm.

F agrees with Dr L’s recommendation that access arrangements be reviewed and agreed each year. However, given the history of this matter F considers it best to have an agreement/order made now that A’s mid-week drop off time on Thursdays and public holidays be extended to 8pm in 2016.

General Principles for School Holidays

1.  Holiday start and end dates are respectively the first and last day marked on the school calendar.  Therefore, weekends immediately prior to/after the holiday are treated as term time holidays.

2.  For long holidays (i.e. Christmas and Summer Holidays) M has requested that the children spend the last weekend immediately preceding the return to school with her; F is amenable to the children spending the last 2 days of the holiday (whether a weekend or not) with M provided that F’s access start/end dates are adjusted accordingly to ensure equal division of the holiday.

3.  F continues to agree that the non-access parent can have the children until 6:00 pm on the day they break up from school.

4.  Summer Holidays

4.1 The summer holiday shall be divided equally, with F taking the first half of the 8 week summer holiday and M taking the second half.  The children shall have single dates with the non-staying parent each week as in term time (F suggests both children having one dinner per week with the non-staying parent) if they are in Hong Kong.

4.2 The attendance of the children at summer school shall be reviewed by the parties and agreed on a year by year basis.  At present summer school usually falls in the middle of the holiday and, accordingly, the time will be shared broadly equally as in 2015.  If there is a substantial change in the schedule for summer school this may need to be reviewed.

5.  Christmas

5.1 The holiday shall be shared equally and alternated as to first half/second half.

5.2 In 2015/16 F has weekend access prior to the start of the holiday and M shall have the first half of the holiday starting from 9am on Monday 21 December 2015 to mid-day on 30 December 2015.  F shall have the second half of the holiday and shall return he children to M at 7.30pm on 8 January 2016.  (Note: in 2015/16 the first weekend 19/20 December 2015 is F’s scheduled access weekend and the last weekend 9/10 January 2016 is M’s scheduled access weekend therefore no alternation under General Principle 1 above is required this year).

5.3 The division/handover is to be arranged so that the children do not have to travel on the key holidays such as Christmas Day, New Year’s Eve, or New Year’s Day.

6.  Chinese New Year/Easter

6.1 In view of F’s heavy workload from early February to early March, if CNY falls in that period M shall have the CNY holiday with the children.  In 2016 M shall have CNY and F shall have Easter.

Note: CNY falls early in 2017, 2019, 2020 and 2022 and will be to F.  CNY falls late in 2016, 2018 and 2021 and will be to M.

6.2 The parent who does not access at CNY will have the children at Easter.  This means F will have the children for Easter 2016, 2018 and 2021.  M will have the children for Easter in 2017, 2019, 2020 and 2022.

6.3 In light of the first anniversary of M’s mother’s death during Easter in 2016 (around March 27), F proposes that he will take the children to Penang for the Easter holiday period.  Assuming the memorial ceremony will be held in the place where M’s family lives, which is within reach of Penang, F will agree that M can collect the children for the day so they may attend the ceremony with her and return them to F later that evening.  F hopes this goodwill would be reciprocated and the children permitted to travel to events involving his family.

7. Fall Break

7.1 To be alternated each year.  M to have Fall Break in 2015.  F to have Fall break in 2016.

Single Public Holidays and Other No-School Days

1.  Single Public Holidays (including Day following Mid-Autumn Festival, National Day, Chung Yeung, Thanksgiving, Ching Ming, Labour Day, Buddha’s Birthday, Dragon Boat Festival) in each year shall be alternated between parents to start from 9am to 7.30pm.

2.  If M has Day following Mid-Autumn Festival F shall have National Day.  If that holiday falls on a Saturday or Sunday or within the long school holidays, it is not counted.  If the public holiday falls before F’s access weekend, or immediately after that, and if that holiday is M’s, that day will be swapped and F shall have an extended weekend with the children.

3.  There are 2 3-day Parent-Teacher Conferences (usually from Wednesday to Friday) each year. Parents shall schedule appointments with children’s teachers on the first day whenever possible.  The children shall stay at M’s home for the rest of the day.  Each parent shall each have one of the remaining 2 days.  If F has weekend access that week, he shall start access on Friday morning form 9am to have an extended weekend.  If not, he shall have the children on Thursday from 9am to 7.30pm; the M shall then have an extended weekend.

4. Diwali: M shall take the children to Malaysia to celebrate Diwali only over a weekend and may take the children out of school for a half-day on Friday provided that the days do not clash with the children’s school trips.  If Diwali falls on F’s weekend access, the weekend shall be swapped.

Significant Events

1.  Children’s Birthdays

1.1 The children will spend their birthday with the parent whose access it is on that day.  The parents can consider holding a birthday party for the children during their weekend access, before or after the birthday, or consider organising a party together.

2.  Parents’ Birthdays

2.1 Dr L is incorrect when she states that M’s birthday (XX July) falls in her summer access period; it will fall in F’s access period.  F proposes that on XX July the children spend from 9am to 9pm with M and that he receive an extra day in lieu at the end of his summer holiday access.

2.2 If F’s birthday (XX May) falls on M’s weekend, the weekend access shall be swapped.  If it falls on any other day, F shall have dinner with the children on that day from 5.30pm to 7.30pm.

3.  Mother’s Day

3.1 If Mother’s Day does not fall on M’s weekend access, the weekend shall be swapped.

4.  Father’s Day

4.1 Father’s Day falls in F’s summer holiday access, so no special arrangement is needed.

Generally

1.  To facilitate smooth transition of the children between the 2 homes the parents shall provide spare school uniforms, sports-wear and other necessities in both homes, and shall have their helpers deliver the children’s belongings wherever necessary to where the children go.

2.  The parents shall respect the children’s rights to keep their belongings, and to take with them their belongings wherever they go.

3.  The parents shall by all means facilitate the children to maintain free and private communication with the non-staying parent.

4.  The parents shall communicate directly with each other and take everything the children said about the other parent with a grain of salt.  The parents shall not put the children in the middle by asking them to carry messages, allowing them to say disrespectful things about the other parent, and encouraging them to take sides.

5.  The access schedule to be reviewed and reconfirmed every year.  The parents shall draft the access schedule for each academic year in May when the school calendar for the subsequent year is released, and shall finalise it in September when more details of school events are confirmed.  The schedule shall be clearly visible and easily accessible to the children in both homes.

6.  To operate the access schedule effectively and stress-free to the children, the parents shall make extra effort to keep their emotions in check, to demonstrate that they love the children more than they dislike or mistrust each other.

18. Again, just as in the mother’s proposal, this is an extremely detailed document. The father also proposes that the access schedule be reviewed annually.

The Recommendations made in the reports

The Social Welfare Reports

19. There have been two reports filed, the first dated the 27 March 2014 and the second dated the 1 September 2015. 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.

20. In essence the social welfare officer in this case, Miss T recommended that there be no significant change to the existing access regime. Her analysis of the situation does, it seems to me, accurately reflects the reality of underpinning the present dispute and therefore although a little on the long side, bears some repeating:

39. Mr T and Ms G are both loving and caring parents.  They showed great concern on the welfare of their adopted children, J and A, and put much effort to care and nurture them.  They were able to meet the children’s physical, social, educational and emotional needs.  Throughout the past years, both parents had considerable involvement in the children’s life.  With their love and care, J and A showed good growth and development.  They were well-behaved with nice and amiable characters.  The parents divorced in 2013.  Before their separation, they were able to reach consensus on the custody and care and control issues that by consent, Mr T and Ms G do have joint custody of J and A with care and control to Ms G.  In January 2014, by consent, it was ordered that Mr T shall have 2 days access and alternate weekend access, firstly 2 nights from Friday to Sunday, and 2 months after Mr T’s leaving the matrimonial home, transited to 3 nights including Thursday.

40. While both parties respected the joint custody and care and control arrangement, they had different views on the children’s access to the father.  They were able to resolve some of their disputes on the holiday access but they were still unable to agree on the access arrangement for summer school holiday.  Another conflict area was their different views on the weekday access and the alternate weekend access.  Mr T wished to implement the agreed 3-night alternate weekend access as he considered that it was right time to proceed, taking into consideration the children’s adjustment for over one year since the agreement made.  Besides, he wished to extend the time for the two weekday access in view of the growing age of the children.  He requested for more access time as he wished to show more fatherly love and concern to J and A and further enhance their relationship.  He also wished to get involved in their social and educational aspects and gave support in their learning.  However, Ms G showed reservation about the father’s request.  She believed that it was not from the children’s welfare to impose the 3-night alternate weekend access without consulting their views and preference.  She also considered that it would create confusion and disruption to the children’s schooling, especially J and A had demonstrated learning difficulties and focus problems.  She wished to maintain the status quo for 2-night alternate weekend access from Friday to Sunday.

41. The social investigation revealed that both parents showed great concern on the well-beings of their children.  They placed high regards on their developmental and educational needs.  The father’s request for more access time reflected his good intention to show more fatherly love, involve more in the children’s life and put more time to bond with them which should be recognized.  However, both J and A were found to have focus problem with weak organization skills and were in need of medication and learning support.  They showed struggles in their school works.  Currently, they had adjusted to the routine to have access to the father’s home for 2-night, from Friday to Sunday, on alternate weekends. The father’s request for extended weekend indicated his good will to avoid the children rushing between two houses when they would stay with him for the weekend.  However, the children had clearly stated that they did not want to have the extended weekend access and felt such arrangement confusing and they did not want to go to school from two different houses.  Given that their special learning needs and their weak organization skills, their views should be listed to and their concern was justified.  Hence, it is recommended that the 2-night alternate weekend access, i.e. from after school or ECA after school on Friday to 6:45 p.m. on Sunday, to stand.

42. Regarding the weekday access, Mr T requested to maintain the two day access and to increase the access time in a stepwise manner, say 30 minutes in each year up to 9:30 p.m. so that he could have adequate time to interact and bond with the children and support their schoolwork.  He also wanted to have a generous extended access time in a few occasions in a year for arranging special events/activities for the children.  Ms G showed objection to the father’s proposal to extend the weekly access time as she considered that it was not desirable and not to the children’s welfare.  On the contrary, she wished to reduce the weekday access to one night as she felt that the children had difficulty to manage.

43. For the past one more year since the parents’ separation, the children had been following this pattern of two weekday access that they currently went to the father’s home on Tuesday and Thursday after school/ECA and returned to their mother’s home by 7:00 p.m.  Apparently, the children had adjusted to this pattern.  The father was found to spend meaningful time with the children and he also personally involved in supervising the children’s homework and was always escorting them home.  Given the good parent-child relationship, the constructive access time spent and their smooth adjustment, the two weekday access should be maintained.  Besides, having considered the children’s current life routine that they usually slept at around 8:00 p.m. to 8:30 p.m. in the weekdays, the access time could be extended for 30 minutes that they could return to their mother’s home by no later than 7:30 p.m.  Such recommendation is based on the consideration that the children did not need to rush back home after dinner and the father could spend some leisure time with them after dinner which is conductive to their relationship building.  On the father’s request for a more generous extended access time in special occasions, it is basically supported but the time and the frequency should be clearly set and agreed between the parents.  Besides, instead of recommending a steady increase of access time in each year, the investigating officer inclined to recommend a further increase of 30 minutes 2 years later which should be subject to the mutual agreement between the parents who could then take into account the children’s actual routine at that time.

44. For the summer school holiday, both parties were able to agree on more or less an equal sharing basis to divide the holiday.  However, they had different views and rationale on how to divide the holiday.  For Mr T, he preferred to split the summer school holiday into two block halves and he requested to have the first half. He considered such division was also tally with the division of the summer school which was approximately located in the middle of the summer school holiday.  He explained that he was extremely busy at work from mid-July to mid-August that he could not have meaningful access if the children were with him during that period.  Instead, if he was granted the first half of the holiday from mid-June to mid-July, he could make good planning and have activities with the children.  If they decided for a holiday abroad, the time would not be restricted by a short trip.  For Ms G, she wanted to follow the manner adopted for 2015 that the summer school holiday be divided into several segments, alternated between the parents.  She considered such approach could address the children’s feeling and preference that they would miss either parent if they stayed with one parent for a long block period.  She preferred to have the first and last segment so that she could follow the past routine to bring the children for a short trip in the start of the summer holiday and prepare their schoolwork in the end of the holiday.  Apparently, both parents had their own concern and justifications.  When compared between two proposals, the father’s reasons seemed to be more justified as he had real constraints to spend time with the children from mid-July to mid-August because of his work conditions.  Having considered that the spirit of access is to promote the contact between the children with their non-care and control parent and facilitate their relationship building, the father’s proposal could facilitate him to have more meaningful access time and he could also spend a block holiday with them in Hong Kong or abroad during summer which is considered to the children’s best interest.  Besides, the father undertook to let the mother meet the children for lunch/dinner during the block period in summer could let the children maintain close contact with their mother during their access to their father.  Lastly, the father’s request to let both parties to celebrate their respective birthday with the children when they were not with him/her is also justified and is supported.

21. As will be seen although I have found Ms T’s analysis of the situation helpful, I do not entirely agree with all of the recommendations made.

Dr L  

22. Dr L prepared a very long and detailed report which ran to some 97 pages (without exhibits). There was some disagreement about the weight to be attached to this report, which was produced in the first instance at the request of the mother. Indeed the mother had said previously that she would abide by any recommendations made by Dr L and that she hoped that the father would do likewise. However the mother’s position changed somewhat once the report was released and it would be fair to say that she was very disappointed that Dr L had not placed more emphasis on the children’s stated preferences.

23. Reports from privately funded psychologists such as Dr L can also be extremely helpful – especially in a case like this where the issues themselves are relatively small but the conflict between the parties’ remains very high. Generally the recommendations made and insight provided can be very useful. However, as with the Social Welfare Reports, the recommendations made are not binding on the court.   

24. Dr L stated as follows in her Conclusions and Recommendations:

15. Conclusion & Recommendations

15.1   Both Parents love and care for their adopted Children, and are concerned to play an active parental role in the Children’s life.  Yet, they have low trust in each other.  In fighting over access, they are not aware that their slightest emotional reactions to the other party have been damaging to the Children, putting them in the miserable middle.  At the time of assessment, the Children are already at risk of unhealthy development.

15.2   It is well documented that children can tolerate almost any solution that settles the conflicts between parents better than the ongoing conflicts that some parents continue.  Both J and A are assessed to be generally adaptive.  If Parents can resolve their conflicts soonest and move on cooperatively as co-parents, the Children can be free from unnecessary stress and have a better chance to flourish.  If Parents continue to fight against each other, showing mistrust and disrespect to each other, the cognitive, emotional and social functioning of J and A are likely to be hampered.

15.3   Arrangements entered into willingly by both parents are more stable and beneficial to children.  Regrettably, the Parents have not been able to bridge the gap between their differences.  The following recommendations on access are made with the Children’s best interest in mind to minimize the Children’s hassles and stress.

   School Term Access

15.4   During school term, the Father shall have alternate weekend access from Friday after school to Monday at school.  The Children shall be picked up at school on Friday by the Father or his helper.  The Father shall drive the Children to school on Monday.

15.5   Each Child shall have dinner with the Father every week from 5:30 to 7:30pm.  J shall spend time with the Father on Tuesday while A stays home with the Mother; A shall spend time with the Father on Thursday while J stays home with the Mother.  The Children can choose to swap their days if necessary, but have to notify the Father in advance.  Time for notification shall be negotiated between the Father and the Children.  The Child shall be picked up from the Mother’s home at 5:30pm and returned to the Mother’s home at 7:30pm by the Father.

   Summer Holiday

15.6   Assuming that the Father has heavy workload from mid-July to the end of August each year, the Father shall take the first half of the 8 weeks summer holiday, and the Mother shall take the second half.  The Children shall have single dates with the non-staying Parent each week as in term time if they are in Hong Kong.

15.7   If the Father fails to produce official document to provide his workload during the period, the Father shall take the children for the first 2.5 weeks and the Mother for the following 2.5 weeks, then the Father shall have the Children for the first half of the remaining period and the Mother shall have the children for the second half of the remaining period through to the start of school term.  The same principle of single dates with the non-staying Parent applies if the Children are in Hong Kong.

   Significant Events

15.8   The Children shall spend their birthday (J on XX January, A on XX March) with the Parent whose access it is on that day.  The Parents can consider holding a birthday party for the Children during their weekend access, before or after the birthday, or consider organizing a birthday party together.

15.9   The Mother’s birthday (XX July) falls in her summer holiday access period, no special arrangement is needed.

15.10  If the Father’s birthday (XX May) falls on the Mother’s weekend, the weekend access shall be swapped.  If it falls on any other day, the Father shall have dinner with the Children on that day from 5:30 to 7:30pm.

15.11  If Mother’s Day does not fall on the Mother’s weekend access, the weekend shall be swapped.

15.12  Father’s Day falls on the Father’s summer holiday access, no special arrangement is needed.

   Long School Holidays

15.13  The School has 3 weeks holidays for Christmas and New Year (from 21 December 2015 to 8 January 2016).  If the Father has weekend access prior to the holidays, the Mother shall have the first half of the holiday starting from 21 December 2015, Monday, 9am till 2pm midday 30 December 2015.  The Father shall have the second half of the holiday, and shall return the Children to the Mother on 8 January 2016 at 7:30pm.

15.14  The Father had had heavy workload from early February to early March for the past 10 years.  If the Chinese New Year falls in that period, the Mother shall have the Chinese New Year holiday with the Children in that year.  In 2016, the Mother shall have the Chinese New Year holiday while the Father shall have the Easter holiday with the Children.

15.15  The Fall Break shall be alternated each year thereafter.  The Mother shall have the Fall Break in 2015; the Father shall have the Fall Break in 2016.

   Single Public Holidays & Other No-School Days

15.16  Single Public Holidays (including Day following Mid-Autumn Festival, National Day, Chung Yeung, Thanksgiving, Ching Ming, Labour Day, Buddha’s Birthday, Dragon Boat Festival) in each year shall be alternated between the Parents, to start from 9am to 7:30pm.  If the Mother has Day following Mid-Autumn Festival, the Father shall have National Day.  If that holiday falls on a Saturday or Sunday, or within the long school holidays, it is not counted.  If the public holiday falls on the day before the Father’s access weekend, or immediately after that, and if that holiday is the Mother’s, that day shall be swapped, and the Father shall have an extended weekend with the Children.

15.17  There are two 3-day Parent-Teacher Conference (usually from Wednesday to Friday) each year.  Parents shall schedule appointments with the Children’s teachers on the first day whenever possible.  The Children shall stay in the Mother’s home for the rest of the day.  For the remaining 2 days, each Parent shall have 1 day. If the Father has weekend access that week, he shall start the access on Friday morning from 9am to have an extended weekend.  If not, he shall have the Children on Thursday from 9am to 7:30pm; the Mother shall then have an extended weekend.

   Diwali

15.18  Going forward, the Mother shall take the Children to Malaysia to celebrate Diwali only over a weekend and may take the Children out of school for a half-day on Friday, provided that the days do not clash with the Children’s school trips. If it falls on the Father’s weekend access, the weekend shall be swapped.

15.19  To facilitate smooth transition of the Children between the 2 homes, the Parents shall provide spare school uniforms, sports-wear and other necessities in both homes, and shall have their helpers deliver the Children’s belongings whenever necessary to where the Children go.

15.20  The Parents shall respect the Children’s rights to keep their belongings, and to take with them their belongings wherever they go.

15.21  The Parents shall by all means facilitate the Children to maintain free and private communication with the non-staying parent.

15.22  The Parents shall communicate directly with each other, and take everything the Children said about the other parent with a grain of salt.  The Parents shall not put the Children in the middle by asking them to carry messages, allowing them to say disrespectful things about the other parent, and encouraging them to take sides.

15.23  The access schedule shall be reviewed and reconfirmed every year.  The Parents shall draft the access schedule for each academic year in May when the school calendar for the subsequent year is released, and shall finalize it in September when more details of school events are confirmed.  The schedule shall be clearly visible and easily accessible to the Children in both homes.

15.24  To operate the access schedule effectively and stress-free to the Children, the Parents shall make extra effort to keep their emotions in check, to demonstrate that they love the Children more than they dislike or mistrust each other. Their slightest emotional reactions and casual negative remarks can be experienced by the Children as animosity and stress.  Children need to see and hear the Parents being calm, cordial and respectful to each other to feel secure, and need to feel that the Parents are emotionally healthy and available to be able to thrive.

15.25  For the time being, the Parents are witnessed to be at pain, and have difficulty behaving in a calm, cordial and respectful manner to each other.  They are strongly recommended to receive psychological counselling to be more cognizant of their emotions, come to terms with what they have experienced and move on.

15.26  With emotionally healthy and cooperative co-parents, the Children can grow and thrive in 2 homes.  With continuous learning to be effective co-parents jointly investing in the best interest of the Children as business partners, the Parents can also grow and flourish too.

15.27  The Father is advised to introduce his partner only after his relationships with the Children are positively and securely re-established, and a healthy business co-parenting relationship is built with the Mother.

25. Again I found Dr L’s observations generally very helpful. I agree that these children are most probably caught in the “miserable middle.” I also agree with her statement that most children can tolerate almost any situation if it ends the conflict between their parents. As I understand it what children often cannot tolerate and what is likely to be extremely damaging to them, is ongoing and high levels of conflict between their parents. This is the case here. It is therefore essential in my view that a relatively simple structure for access be put in place that everyone can easily follow, the children included.  

26. I should add that again, although I have found Dr L’s report very helpful, I do not intend to adopt all of the recommendations made.            

Discussion

Some general observations and principles

27. As will be seen below I do not accept that the mother’s proposal that the father have the lion share of the public holidays, Professional Development days and the Parent Teacher Conference days in lieu of an extended weekend. In so far as the single public holidays are concerned there are infact very few of them that have not already been included in the children’s school holidays. To date those holidays have been alternated. The mother complains that this means that there can be a lot of toing and froing between the two households. This is accepted in part by the father. In view of that I will direct that if a single public holiday, outside of the school holidays, falls on either the day before or after a weekend or on one of the days of the extended weekend (to be discussed below), then the public holiday will go to the parent who has the care of the children over that weekend as follows:

a) Monday 2 May 2016 – whoever has the care of the children over the weekend at the end of April/beginning of May will also have the care of the children on the 2 May public holiday

b) Saturday 14 May – whoever has the care of the children over that weekend will also have the care of the children on the 14 May public holiday

c) Thursday 9 June – if the father has the care of the children for weekend access commencing on the 9 June afternoon then he will have the 9 June public holiday. If not the mother will have the care of the children for that public holiday

d) Friday 16 September - whoever has the care of the children for the weekend encompassing the 16 September will also have the 16 September public holiday. If it is the father’s weekend he will have the care of the children as normal from Thursday after school. If not the children will be in the care of the mother.

e) Saturday 1 and Monday 10 October – the same principle will apply to both of these days unless either is within the Fall mid term break.  

28. The long school holidays (i.e. Chinese New Year, Easter, Summer, Fall break and Christmas/New Year) shall begin on the last day of the school term and the holiday with the parent who has the care of the children will start at 6:00 pm on that day. It is agreed that if this is a holiday period with the father then the children can pop back to the mother’s home to pick up their gear and the 6:00 pm start gives everyone sufficient time for this to be done in a sensible fashion. The mother has asked that the children return to her for the weekend before the start of school when the children have enjoyed a long holiday – i.e. over Christmas and the summer. The father is agreeable to the children returning for two days before the start of school, whether this is a weekend or not, subject to the necessary adjustments being made for his half share of the holidays. In other words if the parties are splitting the holiday 50:50 (as in the summer holiday) then the period of the holiday will be from the last day of term to two days before the commencement of the next school term. The calculation shall be made on that premise. Further the term time arrangements begin two days before the start of the term. Given that, this means that the children always begin the term with their mother, it follows that the following weekend shall always be the father’s weekend with them. This arrangement does not apply to the shorter holidays – i.e. Chinese New Year (when the children will generally be with their mother in any event), Easter or the Fall mid term. On those holidays the father shall return the children at 7:00 pm on Sunday evening and the following weekend would be the mother’s weekend in any event.  

29. Professional Development days and Parent teacher conference days will simply fall as they fall and there will be no special arrangement for them. Consequently if it is the Father’s weekend then he will have the children all day on Thursday and Friday. If it is the mother’s weekend then the children will stay with her. The same principle also applies to Thanksgiving.

The weight to be attached to the views of the children

30. In this case it is clear that the mother was of the view that the children’s stated preferences should be given determinative weight. In other words because the children had told her and others that they did not want extended weekend access that it followed that there should not be any extended weekend access. She did not accept the suggestion that the children may have said what they said because they were caught in the “miserable middle” i.e. because they were horribly conflicted. She said that she had agreed to the extended weekend access in the first instance without realizing that they did not infact want this and that it might have a detrimental effect on them.

31. The father for his part describes in his affidavit of the 13 May 2015 the way in which the litigation has progressed from his perspective, with respect to the extended weekend access. He describes this as follows:

69. After more than a year of the current weekend arrangements, the children and I have become used to the routine but I find that, in fact, only having the children with me for two nights out of 14 makes it hard to maintain sufficient degree of involvement in their daily lives.  With the children growing older and reaching their teenage years (J is already 13), they would benefit from spending more time with me, their father.  Much of the weekend is spent on activities, many organized unilaterally by their mother; it is really only in the evenings, at my home, before bedtime, when the children and I really have a chance to have heart-to-heart conversations.  To be able to spend the quiet moments with the children and not be rushing from activity to activity is necessary and important to maintain and strengthen our relationship.  I only have two such evenings out of every fortnight; I am worried that this is not sufficient to maintain and strengthen the children’s relation with me as they enter adolescence.

70. Extended weekend access is also in the best interests of the children as studies have shown that teenagers benefit from spending more time with their fathers.  A study by Susan McHale of the Society for Research on Children Development has concluded that youths who spent more dyadic time (time when only parent and child are present) with their fathers, on average, had higher general self-worth, and changes in social time with fathers were positively linked to changes in social competence.  There is now shown and produced to me marked “SWT1-5” a copy of Dr. McHale’s article in the December 2012 issue of Child Development.  I believe that for both children, spending more one-on-one time with me will be helpful in boosting their self-esteem and gaining confidence in social situations.  This is especially important for our teenage children who face more challenging routines at school.

71. As the children grow older, they will benefit from spending more personal time with me.  It is also sensible to take into account that their bedtimes will be later in the evening as they grow up.  Currently, the Petitioner has taken a very firm position that the children must return by 7:00 pm on weeknights and 6:45 pm on Sundays in order to settle down and prepare for school the next morning.  This has even extended to nights before public holidays or weekends, when the children do not have school the following day.  As an example, the Petitioner refuses to allow a later handover time at 8:00 pm on 1 May 2015, the Labour Day public holiday (where the existing court orders are silent), that would have allowed the children and I to have dinner at their favourite restaurant.  As the children did not have to attend school the following they, there was no real reason for the Petitioner’s refusal save that she was not willing to be cooperative or adopt any degree of flexibility in terms of access.

72. The Petitioner alleges that the children’s bedtimes are 7:30 pm.  It is hard to imagine that going forward, as both children become teenagers, they would continue to have such an early bedtime.  Therefore, I propose that the return time weekend access be extended by 30 minutes forthwith and then on an annual basis, starting on or around A’s birthday (XX March) until A turns 15. This would allow the children to spend more time with me and not have to rush through an early dinner that starts at about 5:30 pm.  A is presently 11 years old, and assuming handover time is postponed to 7:30 pm starting now, by the time A is 15 years old, the handover time will be 9:30 pm.  By then J will be 17 years old.  It is more age-appropriate for access to end at 9:30 pm than 6:45 pm for two teenagers whom I hope will become responsible and independent young adults who can able to prepare for the following day’s school without much, if any, assistance from the Petitioner or me.

73. I accept that access arrangements should be made taking into account the children’s wishes and appropriate weight should be given to their views and opinions, but I do worry not only about what is being said to them to influence their views, but also their perception that if they spend more time with me their mother will be sad.  Given that the children, or at least J, has expressed that the constant shuffling back and forth between homes can be somewhat tiring, the children would in fact benefit from having extended weekend access with me on alternate weekends, starting from Thursday after school until Sunday evenings at 6:45 pm.  This effectively means that instead of midweek access on Thursday, whereby I would have to return the children to the Petitioner after dinner, the children would stay at my home and I would take them to school on Friday morning.  This is a seamless and natural transition to my weekend access, and would in fact offer more stability to the children as there would be less to-ing and fro-ing.  I believe that it is the bouncing backwards and forwards between homes on Thursdays and Fridays, and not their access with me per se, which is not appropriate.  Extending weekend access would avoid returning the children to the Petitioner’s home on Thursday evening only for me to collect them again on Friday.  In effect, the only change would be that they would sleep at my place on Thursday instead of sleeping at their mother’s home, on alternate weeks.  My Tuesday evening access would continue as it is.

74. The crux of the issue is not that the children have difficulties with staying with me or seeing me during the week.  The issue, if there even is one, is that the children are very tired of being rushed back to the Petitioner’s home after an early dinner --- they must be back at the Petitioner’s apartment at 7:00 pm. Essentially they spend around three hours every Tuesday (J only spends 2 hours on Tuesday, in fact) and Thursday afternoon with me, and of those three hours, with about 30 minutes spent on travel, another 20 minutes to settle in and unpack their bags, eat a snack, then another 10 minutes to pack their bags and prepare to leave.  This is indeed a rush, and it is no wonder that the children might be frustrated.  In order to reduce the ferrying back and forth, and instead of wasting time on packing and unpacking bags, it is sensible for Thursday midweek access to be transitioned into an overnight stay.  Three-night weekend access starting from Thursday after school until Sunday evening, as ordered by consent on 14 January 2015, will allow the children to have more rest and give them the opportunity to enjoy more family time with me instead of spending a portion of my access time in the car or packing and unpacking their belongs.

75. I am disheartened to learn that whilst I am seeking to spend more time with the children --- or rather, whilst I am seeking for the implementation of access arrangements to which the Petitioner had already agreed --- the Petitioner continues to be obstructive with respect to access.  This is not the first instance where the Petitioner has deliberately made my access to the children difficult.

76. I also do not accept that my proposed access schedule should cause confusion for the children.  It is perfectly simple to put together a colour coded chart that can be stuck to the fridge showing everyone what happens on that particular day, although do not think that the children, at their ages, have any confusion at all as to the routine.

32. Subsequently the father’s views changed in line with the recommendations made by Dr L and he asked that the access be extended not from Thursday’s after school – Sunday evening but from Friday after school to Monday morning.   

33. As I indicated to both parties both during the Children’s Dispute Resolution hearings and at the trial, the views of the children are not determinative. Their views are one aspect of the case that I must take into account when considering the matter overall. It is true that as children get older that their views carry more weight. However, in a case like this where the children were really quite young when the parties first separated, the stated views of the children must be approached with some degree of caution. They certainly should not be put in a position where the onus is on them to “choose” between each of their parents. Nor should they be under the misapprehension that they are responsible for the fight between them. Two years on J has just turned 14 years of age and A is 11. Although a bit older they will now be acutely aware of the ongoing dispute between the parties and their role in it. Consequently although I understand their stated preferences I do not intend to attach too much weigh to them. I agree with Dr L that these children will be able to cope with almost any order that I make, especially if that ends or at least serves to diminish the ongoing conflict between their parents. 

The structure to be put in place for term time access including the issue of extended weekend access

34. In short I intend to extend the alternate weekend access but not from Friday after school until Monday morning, but as originally agreed from Thursday after school until Sunday at 7:00 pm. This is of course on the premise that the father will undertake to do whatever homework is necessary with the children during this period of time. It follows that I do not fully agree with either the Social Welfare Officer or Dr L. The reasons for this are as follows:

a) In general I accept the father’s arguments as set out in paragraph 31 above. In particular I am of the view that it would be beneficial for these children to spend longer periods of time with their father as they get older during regular term time. This is especially so for J who is a teenage boy and who is therefore likely to benefit from having some additional time with his father.

b) The mother is seemingly very concerned that she should preserve some time with the children on Sunday evenings in order to prepare them for the week ahead. I accept that this is likely to have been beneficial for both children, but particularly for A who is younger and who needs a lot of emotional and educational support. I also accept that the mother has historically been more involved in the children’s school work than the father. Consequently I agree that it would be sensible for the children to arrive back at the mother’s at 7:00 pm (as suggested by the mother) on Sunday evenings when they have been with the father for the weekend. I do not necessarily accept all that the mother has said in this respect, but nevertheless it seems to me that it is preferable for them to return to her on Sunday evenings as opposed to going straight to school from the father’s home on Monday mornings. Although I agree with the father that Sunday evenings are a nice time and that he would have liked to have enjoyed a more leisurely period with them, without necessarily having to rush them back to their mothers, I have nevertheless come to the view that on balance the children’s need to prepare for the week ahead overrides his preference in this respect.

c) I do not accept the mother’s argument that she felt coerced into entering into the original consent summons dated the 14 January 2014. Nor am I of the view, as stated above, that the children’s stated preferences should be determinative. The mother had entered into an agreement which became an order of the court. That order, although concerning children and capable of variation should still carry some weight – especially when this is a matter that can and should have settled and where there are a variety of different alternatives – all of which can and would have worked perfectly well.

d) I am also mindful of the fact that the children already spend Thursday evenings with their father and that an extension of that into an overnight should be easy to achieve. I accept that the children should be able to go back to the mother’s home from school on Thursday’s in order to collect whatever items they may need for the weekend or the following day. It seems to me that there should be no difficulty in them doing that on Friday also – if they would prefer.

35. On the weeks when they have staying access with their father they will also have access on the preceding Tuesday as now, but until 7:30 pm. Going forward the access time shall be increased to 8:30 pm when J is 16 and A nearly 14 i.e. on the anniversary of this judgment in two years time. This is in accordance with the recommendation made by the Social Welfare Officer.

36. On the weeks following the staying access the father shall have access to both children on Tuesday and Thursday as he does at present until 7:30pm.

37. I have considered whether the children should have some one on one access time with the father as suggested by Dr L. I accept that this might be a good idea in the longer term. However as things stand at present I will not make this additional order. I accept that the children are used to spending time with their father together and that this should continue, certainly in the immediate to short term.  

The structure to be put in place for holiday access

38. Another point of contention relates to the school summer holidays. The father wants the holiday split in two with him always having the first half. This is because of his work commitments during the latter half of the summer. If he is given the second half of the holidays he will not be able to take time off or even see the children very much as he will be working long hours during that time. The same generally applies to Chinese New Year if Chinese New Year falls from early February to early March.

39. At the 11^th hour the mother produced evidence that her work schedule might also change and that consequently she would most likely also need to work in the latter half of the children’s summer school holiday. The mother wishes the children to continue to attend summer school and for the school holiday to be split up into smaller segments as before.

40. It was suggested that the mother’s change of work schedule might not be genuine. There is nothing to suggest that this is the case however and consequently I am proceeding on the premise that both parents may not be able to take holidays in the latter half of the children’s summer school holidays. Consequently whoever has the care of the children during those periods will need to make other appropriate arrangements for them.

41. There are additional problems this year in that the mother wishes to have the children during the school Easter holiday, as this will be the first year anniversary of her mother’s death and she wishes to take the children with her to participate in certain Hindu rites and customs in Malaysia. The father for his part does not wish to lose his Easter holiday with the children and has suggested instead that he make arrangements for the children to attend the actual ceremony – but that otherwise they remain with him in Penang.

42. Historically the parties have alternated the Fall half term and they have split Christmas as set out above. Chinese New Year and Easter were also alternated.

43. As indicated during the trial if neither party is able to take time off in the latter part of the children’s school summer holidays, then the only equitable thing to do is for the parties to alternate the first half of the summer holiday. Consequently the party who has not had an opportunity to have a holiday with the children over the summer will have the whole of the school Christmas holiday instead – so that each year each side will have an opportunity to take a two or a three week holiday with the children.

44. Going forward then the Christmas school holiday and the first half of the school summer holiday shall be alternated. Both parties have made different proposals for Chinese New Year and Easter. In order to simplify matters I will order that going forward the mother shall have the Chinese New Year school holiday and the father shall have the Easter school holiday. These may be swopped by agreement. The summer school holiday shall be split in half with the father having the first half in 2016 and the mother having the second half. In 2017 the mother shall have the first half and the father the second half and so on and so forth.

45. The mother has been insistent throughout that the children continue to attend summer school. Whilst I accept that the children may have benefited from this is the past, this order will mean that either parent can arrange for the children to attend summer school, or indeed any other camps or courses, whilst they are in their care. I will not specifically order that the children continue to attend the whole of the summer school as they have done in the past. In coming to this decision I am particularly cognizant of the fact that as both parents are now likely to work in the second half of the school summer holidays, each may need to make other arrangements for the children when they are in their care for that part of the holiday. Those arrangements may include other courses, camps etc.

Holiday schedule for the remainder of the academic year 2015/2016

46. The holiday schedule for the remainder of the academic year 2016/2017 will be as follows. This is to take into account the fact that the mother wishes for good reason to have Easter this year and the father cannot take Chinese New Year. This arrangement is a one off and will not be repeated going forward.

a) Chinese New Year school holiday – The mother shall have the care of the children;

b) Easter school holiday – The mother shall have the care of the children;

c) School summer holiday – The father shall have the first five weeks of the school summer holiday to account for the fact that the mother will have both Chinese New Year and the Easter school holiday. The mother will have the remainder of the holiday.

Holiday schedule for the academic year 2016/2017 and beyond   

47. Going forward the holiday schedule will be as set out below. It should be noted that the intention is to ensure that in each calendar year the parents either have the Christmas holidays with the children or the first half of the summer school holiday. This, together with the other underlying principles that govern this schedule generally, may mean that on occasion one party may have several holidays in a row with the children. 

a) Fall mid term break 2016 – this holiday shall continue to be alternated as it is at present. The father shall have this holiday in 2016 and for all even years going forward and the mother shall have this holiday in 2017 and for all odd years going forward. The mother had this holiday in 2015.

b) Christmas school holiday 2016/2017 – this holiday shall be alternated going forward in that the mother shall have this holiday in 2016/2017 and the father shall have this holiday in 2017/2018 and so on and so forth. The previous court orders shall be amended accordingly. I believe that the parties split last Christmas in accordance with the previous court order.

c) Chinese New Year school holiday 2017 – this holiday will not be alternated. The mother will have this holiday in 2017 and going forward. It may be swopped with Easter by agreement between the parties. In the absence of an agreement this order shall stand.

d) Easter school holiday 2017 – this holiday shall not be alternated. The father will have this holiday in 2017 and going forward. It may be swopped with Chinese New Year by agreement between the parties. In the absence of an agreement this order shall stand.

e) Summer school holiday 2017 – As the mother has had the Christmas holiday, the father shall have the first half of the school summer holiday (notwithstanding the fact that he also had the first half of the school holiday last year). This shall be alternated going forward in that the father shall have the first half in all odd years and mother shall have the first half in 2018 and thereafter in all even years.

Other miscellaneous items not covered by the discussion above

48. There has been some dispute between the parties concerning the arrangements to be put in place over the summer if the parties are both in Hong Kong with the children. For the avoidance of doubt in that event the children are to have access with the parent with whom they are not staying on Tuesday and Thursday evenings for supper from 5:00 pm – 8:00 pm. Given that the children are on holiday there can be some flexibility with time. The same arrangement shall now apply to the Christmas holiday in the unlikely event that both parties are in Hong Kong during that period. It does not apply to the smaller school holidays.

49. The children will spend their birthday with the parent they are with. In so far as the parent’s birthdays are concerned, if the children are in the care of the other parent and the children are in Hong Kong, then they may have dinner access with that parent on their birthday from 5:00 pm – 8:00 pm regardless of whether that day falls during the week or over the weekend. In so far as Mother’s Day and Father’s Day is concerned if the children are in Hong Kong and either day falls on the others weekend then that weekend will be swopped so that the children may spend Mother’s Day with their mother and Father’s Day with their father. In the event that the children are out of Hong Kong for any of these special days then there shall be telephone access between the children and the other parent at a time to be mutually agreed.   

50. For the avoidance of doubt it is also agreed that the mother shall spend Diwali with the children and that if this falls on the father’s weekend then that weekend will be swopped. It is also agreed that the mother may take the children out of school for half a day in order to facilitate easy travel out of Hong Kong for that weekend.

51. Finally I accept that these arrangements will mean that the parties are more or less splitting the holidays 50:50. It is not however an exact science and this is acknowledged. Other than as set out above there shall be no further adjustment for the fact that in any given year one or other of the parents may have slightly more or slightly less than 50% of the children’s school holidays.

52. Both parties have asked for an annual review. This should be done outside the court arena. This is not a case that should be returning to court each year for a substantive hearing. However in order to provide both sides with a safety net in that regard there shall in the first instance be a call over in June 2017. Given that this is in 18 months time, leave shall be given to both parties to fix a date in accordance with Counsel’s diaries at the appropriate time.    

Costs

53. The costs in this matter have been enormous and out of all proportion to the issues at hand. Given though that it is a child related matter I will make an order nisi to be made absolute in 14 days time that there be no order as to costs.

54. It has been suggested by Dr L that the parties consider having psychological counselling to come to terms with what they have experienced and to move on. I would strongly suggest that they do so.

55. Finally there was some discussion during the trial about who might be an appropriate person to tell the children about the decision reached in this case. I accept that given all of the circumstances that Dr B is an appropriate person to take up that task.