NKM nee SKM v. NGR

FCMC 14562 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14562 OF 2007

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J U D G M E N T

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Introduction

What are the main issues?

1. This is a contested application for custody of two little boys, who are now aged 4 and 2 years respectively.  The father seeks joint custody and the mother sole custody.  In reality however, the real issue is in relation to the father’s contact with them.  Care and control is not in issue.  It is accepted that the boys should be based with their mother.  However the father also seeks either shared care or in the alternative reasonable/generous access.  In particular he wishes to have weekend staying access and asks that the boys stay with him whilst the mother is away on business.  It is accepted that she goes away on business on a fairly frequent basis, normally to the USA and for periods of up to 10 days at a time.

Background 

2. I should say at the outset that I consider E and F to be very lucky, in that they have two parents who clearly love them very much and want what is best for them.  Both parents wish to be involved in their lives and to actively parent them as best they can.  It should also be noted that both parents need to work and to earn a living.  The boys are also fortunate in that the mother has employed a domestic helper, G, who is also a focal point for them and in the words of the mother runs a very tight ship.

3. Unfortunately relations between the parents have deteriorated to such an extent that there is virtually no communication between them.  Consequently agreement has not been possible.  This is something to be regretted. 

4. The petitioner mother originally sought custody of both boys in her petition dated the 27 November 2007.  This was followed by a summons dated the 17 March 2008, seeking an order for custody and care and control of the boys, with reasonable access to the father.  Prior to the divorce petition being issued the father had issued wardship proceedings under HCMP No 2253 of 2007.  He did so because he said at the time that he thought there was a significant risk of flight by the mother.  The mother’s family resides in Switzerland and the father was brought up in the United Kingdom.  In the father’s Form 4 Acknowledgment of Service form dated the 4 February 2008 he states that he wishes to make an application for custody and access.  On the 22 April 2008 it was ordered that the father do have interim interim supervised access to the boys on Tuesday and Thursday mornings at the office of the Social Welfare Department.  This interim order was varied on the 26 September 2008 following a trial and interim access was granted every Tuesday and Thursday from 3:00 pm – 6:00 pm and every Saturday from 10:00 am – 2:00 pm.  There was also an option for evening access, in the event that the afternoon access was not possible.  Telephone access was likewise ordered.   

Previous judgment dated the 26 September 2008

5. At paragraph 8 of my judgment of the 26 September 2008, I stated as follows:

The mother makes a number of allegations against the husband, the most serious of which, in so far as the children are concerned, is that she believes that the father drinks to excess and that this effects his ability to care for them.  The father denies this.  Further the father is now living in his girlfriend’s property.  There is an issue concerning its suitability for the boys.  The mother also queries the father’s ability to look after the boys for extended periods of time and does not wish the boys to be introduced to the husband’s new girlfriend until it is clear that this is a long-term and stable relationship.

6. The mother remains concerned about the father’s drinking habits and his ability to care for the children whilst under the influence of alcohol.  She questions his assertion that he is a social drinker and asks the rhetorical question - what does that mean?

7. In conclusion I stated at para’s 18 and 19 of my judgment as follows:

18.      Having heard the parties give evidence I accept that the mother has some concerns, which need to be further satisfied before staying access, can be established.  In particular I accept that the father needs to prove to the court that he does not have a drinking problem and that his accommodation is suitable for the boys to stay at overnight. 

19.        In line with the recommendations made by the Social Welfare Officer and the agreements subsequently reached between the parties direct, I am going to make an order to facilitate more regular and extended periods of access.  I will not order staying access at present, but accept entirely that the father should have staying access to the boys in the event that there is no risk to the boys caused by any excessive drinking on his part.  I also accept that the father’s access should be extended over time, so that in due course he has the boys for whole days.  This is something that the parties should be working towards.  Likewise I accept that the Social welfare Officer needs to visit the husband’s accommodation again to check to see if it is now sufficiently child proof for over night staying access to take place.  

The Law in Hong Kong

8. The basic legal principles in relation to children remain as set out in my judgment of the 26 September 2008.  The welfare of the children is the court’s first and paramount consideration. 

Case law

9. Ms Ho for the mother referred the parties to my own case namely [2007] HKFLR SEB v ZX (Custody) 165.  In that case I analysed the present status of the law in Hong Kong with respect to children in private family law cases.  In particular Ms Ho referred me to the following paragraphs:

14.        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 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’”.

15.        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.

10. And at para 101 when awarding sole custody to the father:

101.     It seems to me that Recorder Rimsky Yuen SC has correctly stated the test to be adopted when determining the issue of joint versus sole custody.   Clearly here the parents have not historically been able to co-operate at any level.  Schooling was a particular bone of contention.  As Rimsky Yuen pointed out “If there is no reasonable prospect of co-operation between the parties, an order for joint custody can be a recipe for disaster and contrary to the best interests of the child”.  I agree.  I accept that a joint custody order may be appropriate in some cases, where it provides a suitable framework for future co-operation.   Unfortunately I agree with the father’s counsel that this is not one of those cases.  “The time is not now”.   It may however be a possibility in the future.  I will grant the father sole custody of the boys.

Discussion

11. I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing.  I heard evidence from the father and the mother and the social welfare officers – namely Ms F and Ms A.  The first report by Ms F is dated the 30 July 2008 and the second by Ms A is dated the 26 February 2009.

Should the parties have joint custody or should the mother have sole custody of E and F?

12. The mother’s case is that she should have sole custody because she is simply unable to communicate with the father.  However she accepts that going forward there will need to be some level of communication and she understands that even if she were to be granted sole custody that she has a duty to inform and involve the father in important decisions effecting the boys.  She will undertake, as will the father, to appoint a mediator to act as parenting coordinator with a view to helping to facilitate communication between them.  This is a very positive development and one that is to be encouraged.  The mother also agrees to forward information from the school to the father as appropriate.

13. The father for his part complains of being excluded and of not being involved in important decisions such as the choice of Kindergarten for E.  He wishes, quite rightly to be involved in the decision-making process going forward.  As stated above he undertakes to appoint a parenting coordinator to help facilitate communication between him and the mother.

14. I have noted that Ms A, the social welfare officer has recommended sole custody to the mother.  During cross-examination by the father she confirmed that this was because the parties were unable to communicate with each other. 

15. As I stated in namely [2007] HKFLR SEB v ZX (Custody) 165 joint custody orders can sometimes be aspirational.  I intend to make an order for joint custody on that basis.  I appreciate that the parties have difficulties communicating, which is often a common by product of an acrimonious separation.  It seems to me though, that in the interests of the boys, they need to find a way to communicate with each other going forward.  A joint custody order should provide a more appropriate framework, in which they can work together in co-parenting the boys in a spirit of co-operation and compromise.  

What sort of access should the father have in the short term?

Alcohol

16. The mother’s primary concern centres on the husband’s history of drinking to excess.  She says that when they were together that he would often drink himself into a stupor and that she fears for the safety of the boys in that environment.  The suggestion is that the husband is an alcoholic. 

17. Ms F expressed similar concerns.  She described meeting the father unexpectedly, when he was picking up the boys for an access visit.  Ms F said that she smelt alcohol on his breath.  On that occasion, at first the father denied that he had been drinking.  Later he admitted to having drunk the night before.  

18. The husband has sought to allay the mother’s concerns, and indeed those of the court, in part by taking a job as a consultant with APA Ltd.  He works with children from the age of 8 – 18 years as a lead facilitator/instructor.  In summary he is involved in adventure camps and is in charge of small groups of children and young people, as they hike, kayake, rock climb etc.  He is mainly based in Hong Kong, but often in the more inaccessible parts of Hong Kong.  He also occasionally travels to other parts of Asia.  Part of his job involves risk assessment.  He will often be away on camp from Monday – Friday evening.  He will sometimes be asked to attend sites on weekends to prepare for a camp and to attend induction courses.  He said, and I believe him, that he is not allowed to drink whilst on duty with his charges.

19. The father admits to being a social drinker.  He said that he had decided not to undertake a blood test because a) he thought the cost was likely to be prohibitive and b) he was not quite sure what it would prove unless he undertook to take them on a regular basis.

20. Towards the end of the hearing and in order to allay some of the mother’s concerns, he said that he was willing to undertake not to drink for three months, if that meant that he could have staying access to the boys.  Again this seems to me to be a very positive step by the father and one to be encouraged.  I will hold the father to that undertaking.  It goes without saying that I will expect the father to abstain from drinking when the boys are in his care in any event.  In these circumstances it does seem to me appropriate that the father should have some staying access with the boys going forward and that this should be increased over time. 

Other concerns

Lamma, accommodation and Ms K

21. The father now lives in a small two-storey house, which he shares with his girlfriend, Ms K.  The father is responsible for the rent.  The social welfare report had identified some concerns with the father’s new house.  In particular Ms A identified the internal windows, which did not have bars on them, as being a potential problem.  She also referred to the sidewalk to the house, which did not have a fence.

22. In addition the father admitted that he needed to install a stair gate in the house.

23. The mother for her part said during her examination in chief that she trusted the father to make the environment as safe as possible for the boys.  Her bigger concern is with the husband’s alcohol consumption.  This has been dealt with above.  

24. The father acknowledged that there was a potential difficulty with both the windows and the stair gate.  He undertook to fix padlocks on the windows to prevent them being inadvertently opened and to have a stair gate installed before the boys stay over night.  In so far as the walkway is concerned, he provided photographs, which showed where he had already installed a wooded fence.  A flowerbed is also underway and I am satisfied that the slope identified by the social welfare officer should not prove to be too much of a problem.  Staying access will not be denied on this basis alone.

Ms K

25. Ms K and the father formed a relationship some 11 months ago.  Both said it was going well.  They now live together in the Lamma house rented by the father.  Ms K gave evidence.  She holds a PhD in Geology and is a research fellow at Hong Kong University.  She also teaches undergraduates.  Ms K said quite openly that she has no experience as a carer, but that she was happy to lend a hand in looking after the boys as circumstances dictated.  I accept that her presence during access would be a positive one for the boys. 

The father’s parenting skills

26. Concerns have been expressed by the social welfare officers, in relation to the father’s parenting skills and his ability to look after two such young children for prolonged periods of time on his own.  In particular the social welfare officer refers to the fact that he did not seem to be aware of the need to ensure that the children were properly hydrated – or to check to see if the elder one wished to go to the bathroom.  Again these seem to me to be fairly minor matters and certainly not of sufficient import to deny a father proper access to his sons.

The F incident and the open window incident

27. Reference was also made to what became known during the trial as the F incident.  Apparently F wandered off whilst in the care of the father and his girlfriend, whilst playing at a playground in C Road, which is opposite the mother’s home.  The father was having access at the time.  The mother was relying on third party testimony.  Apparently a helper, who saw F and picked him up and returned him to the father, rang the mother’s domestic helper and relayed the incident to her.  The mother’s helper was not present at the time.  It seems that the concern was that F might have walked out onto the road and that insufficient care was taken by the father at the time to ensure that this did not happen.  The father’s testimony was that there were a group of helpers keeping an eye on the children and that F was only gone for a second.  He had assumed that the helpers would keep an eye on F.  He has not returned to the playground since and now takes the boys to other venues, which he considers to be safer.

28. I do not intend to place a great deal of reliance on the hearsay evidence referred to in court.  I accept that this was an unfortunate incident and one that was no doubt extremely frightening for the mother, given how it was relayed to her.  I also accept that the father seems to have learnt from it. 

29. Ms A also observed E standing on a sofa on the second floor, in the company of Ms K, near to an open window.  Ms A confirmed that she did not say anything at the time, but on hindsight she expressed some concern about this in her report.  It seems to me that this incident has been blown out of all proportion and I do not intend to place too much reliance on it.  Likewise the fact that F burnt his finger whilst with his father the weekend before the trial began.  Children do hurt themselves from time to time and appropriate care must be taken to minimize such accidents.  However it is not possible to eliminate them completely and access should not be denied on that premise unless there is a serious cause for concern. I do not believe that to be the case here. 

Access

30. The mother acknowledged that the boys enjoyed their time with the father and said that his love for them was undeniable.  However she did not wish the father to have any staying access at present for the reasons already referred to.  In so far as weekly access is concerned she said that she had no difficulty in that being extended – if the father’s work commitments permitted.  Neither did she have any difficulty with telephone access. 

31. In so far as her own travel commitments are concerned she was willing to let the father know about these as soon as she was informed.  She was willing for the father to have increased access to the boys whilst she was out of town.

32. In so far as the weekends were concerned, she accepted that Saturdays and Sundays could be alternated, and likewise the public holidays in excess of one day could be split and single public holidays could also be alternated.

33. The father wishes to have staying access on an alternate weekend basis.  He originally sought access from Friday evening until Sunday evening, but acknowledged during the trial that this might be difficult with his current work schedule.  He subsequently suggested that he have staying access on Saturday and Sunday on an alternate weekend basis.  He also agreed to inform the mother of his work schedule ahead of time.  He confirmed that he was usually given 4 weeks notice, although sometimes that was reduced to 2 weeks notice.  He would like the boys to stay with him when the mother is out of town on business.  In the alternative he asked for increased access during this time and possibly day access, again if his own schedule allowed.  He was agreeable to splitting longer public holidays and to alternating single public holidays.  Although he acknowledged that it was not now always possible for him to see the boys on Tuesday and Thursday’s he asked that his right to do so remain.  

34. In the circumstances I intend to put in place a framework whereby the father will see the boys each weekend, on alternate Saturdays and Sundays.  He may have staying access on Saturday evening once a month initially on the first weekend of every month.  I will expect staying access to increase over time.  I will also order that he have staying access over the Easter weekend.  The Father will also have the ability to see the boys during the week and for that access to be increased by agreement when the mother is away on business.  The mother is to inform the father as soon as possible prior to her going away, so that suitable arrangements may be put in place. Likewise the father is to inform the mother of his own work schedule.  The father may also have telephone access to the boys.

Leave to take the children out of Hong Kong  

35. The mother also sought general leave to take the children out of Hong Kong from time to time for short trips of not more than three days.  She undertook to bring the boys back at the end of each proposed trip and to provide the father with the normal information i.e. where she was going, when she was going, for what period of time, transportation details and a contact number, such information to be provided at least 48 hours prior to departure.

36. The father did not oppose this.

The Recommendations made in the Social Welfare Report

37. 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.

38. In this case, for reasons that are set out above, I have decided not to follow the Social Welfare Officer’s recommendation in their entirety.  In particular I have noted that although Ms A, the parties present social worker, did not recommend staying access, neither did she recommend supervised access as she considered that access had become “more and more smooth”.  She felt that the father had room for improvement.  That may be the case, but it seems to me that the father should be applauded for taking the steps that he has and for undertaking not to drink for the next three months.  Mdm A’s concerns in relation to the house in Lamma, have, generally speaking been addressed.  I have ordered joint custody for the reasons set out above.   

Costs

39. Given the nature of this dispute I will make no order as to costs (see London Borough of Suttons v Davis (Costs) No. 2 [1994] 2 FLR 569). 

40. Having read the parties affirmations and having heard the parties give oral evidence.  Also having heard from both of the social welfare officers and having read both of the social welfare reports. 

   Also upon the mother and the father undertaking to appoint a mediator to act as a parenting coordinator with a view to helping to facilitate communication about the boys between the parties.

   And upon the mother agreeing to inform the father once she received notification of any travel requirements for work and upon the father agreeing to inform the mother of his own work schedule.

   And upon the mother agreeing to provide the father with copies of information provided by E’s Kindergarten including information about parent’s evenings, school reports etc.

   And upon the father undertaking not to drink any alcohol for the next three months and thereafter not to drink any alcohol when he has access to the boys.

   And upon the father undertaking to install a stair gate and to affix padlocks to the internal windows of his house, prior to staying access taking place.

   And upon the mother undertaking to return the boys to Hong Kong at the end of each trip outside of Hong Kong for a period of three days or less.

   And upon the mother undertaking to tell the father where she was going, when she was going, for what period of time, transportation details and a contact number, such information to be provided at least 48 hours prior to departure.

I will make an order in the following terms:

1)       There shall be joint custody of the two children of the family, E, a boy born on the 29 December 2004 and F, a boy born on the 15 February 2007, with care and control to the mother and reasonable access to the father to include the following:

a.  Access on alternate Saturdays and Sundays from 10 am until 5:00 pm.  The father’s first Saturday access will be on the 4 April 2009 and his first Sunday access will be on the 19 April 2009.  Thereafter Saturday and Sunday access will be alternated save for the Easter weekend and staying access as set out below. 

b.  Staying access on Saturday night on the last weekend of every month either from 10am on Saturday until 10:00 am on Sunday or from 5:00 pm on Saturday until 5:00pm on Sunday depending on whether it is the father’s turn to see the boys on Saturday or Sunday. The father’s first staying access other than the Easter weekend will be on Saturday the 25 April from 10:00 am on Saturday until 10:00 am on Sunday.

c.  Access on single public holidays to be alternated.  The father shall have access on the 1 May and 1 July.  The children shall remain with their mother on the 28 May and the 1 October 2009.

d.  The father shall have staying access from 10 am on Friday 10 April – 5:00pm on Saturday 11 April (i.e. over Easter weekend).    

e.  other access, including but not limited to week day and/or evening access on Tuesday and Thursday’s from 3:00 pm – 6:00pm to be by agreement between the parties according to their own work schedules.

f.   The father shall also have telephone access.

2)      The mother shall have general leave to remove the two children out of the jurisdiction of Hong Kong from time to time for a period not in excess of three days.

3)      A progress report to be called for and filed on or before the 1 December 2009. 

4)      There shall be no order as to costs.