FKYP v. KHYF

FCMC 7952 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7952 OF 2012

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J U D G M E N T
(Access)

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1. I will refer to the “petitioner” and the “respondent” as the “father” and the “mother” respectively.

2. After a 12-day trial, by my Judgment handed down on 28 August 2013, it was ordered that:

(a)   Joint custody of the children of the family be granted to the parties;

(b)   The care and control of the children be granted to the mother with reasonable access to the father; and

(c)   Permission is granted to the mother to bring the children back from Shanghai to Hong Kong.   

3. The parties were unable to agree on the access arrangements.

4. The father has put forward proposals based on the alternatives of the father remaining in Shanghai and the father moving back to Hong Kong or nearby cities.  During this hearing, it was confirmed on his behalf that the father has not had any plan to relocate to Hong Kong or nearby cities.  He is working in Shanghai and it has been his case that his employment in Shanghai will be extended when his current 3-year contract expires by September 2014.  In my judgment dated 28 August 2013, I hold that, from a practical point of view, the father can look for greener pastures in New York, Beijing, Shanghai, Hong Kong or other financial hubs of the world. We simply do not know if and when the father will relocate to Hong Kong or nearby cities.  In the circumstance, I take the view that it is premature to make any access arrangement for the event that the father relocates to Hong Kong or nearby cities.

5. The father’s access proposals whilst he remains in Shanghai are as follows:-

(1)    At all material times, the parties shall have free telephone, email and skype contact with the children when they are with the other parent.

(2)    The mother undertakes to the father and the court that in the event that she will be out of the jurisdiction of Hong Kong overnight while the children are residing with her therein, she will provide 3 days prior written notice to the father who shall be at liberty to have access to the children during such time.

Long school holidays

(3)    The children shall spend one half of school holidays in the care of the father and one half of the school holidays in the care of the mother for Christmas, New Year and Chinese New Year holidays.

(4)    The father shall care for the children during all Easter Holidays.

(5)    The children shall spend 75% of the summer holidays in the care of the father and 25% of the summer holidays in the care of the mother.

(6)    In the absence of a written agreement, the father shall care for the children during the first part of the holidays and the mother shall care for the children in the later part of the holidays.

Term Time Public Holidays and Single school holidays

(7)    The father shall care for the children in all public and single school holidays.  The father will provide 3 days prior written notice to the mother if he will not be in a position to have access with the children at such times.  The father shall have such access from the end of school before the public holidays and single school holidays until the children attend school on the next school day.

Term time

(8)    During school term time, the father shall be at liberty to have access to the children on alternate weekends from the end of school on Friday until the children attend school on Monday morning.

(9)    Further, the father would appreciate that the children shall have access with his parents from after school to 9 p.m. every Tuesday during such times the father will endeavour to join them if this is possible.

(10)   During school term time, upon the father providing 3 days prior written notice to the mother, the father shall have overnight access from after school until the father sends them to school each day when he is in Hong Kong.

(11)   For the avoidance of doubt, the access referred to hereinabove under clauses 8, 9 and 10 shall not exceed 15 days per calendar month during term time.

(12)   The father or his parents shall have the right to remove the children temporarily from Hong Kong for travelling to facilitate access.  The father will give an undertaking to return the children to Hong Kong upon the completion of the access.

(13)   With respect to the access proposal set out above, the father’s parents shall have access to the children on his behalf.

6. As to the father’s abovementioned proposals, the mother responded as follows:-

(a)   The above paragraph 5(1) – Agreed;

(b)   The above paragraph 5(2) – Agreed;

(c)   The above paragraph 5(3) – Agreed;

(d)   The above paragraph 5(4) – The father can have the first 7 days of the 10-day Easter holidays;

(e)   The above paragraph 5(5) – The children shall spend 60% of the summer holiday in the care of the father and 40% of the summer holidays with the mother;

(f)    The above paragraph 5(6) – Agreed;

(g)   The above paragraph 5(7) – If the father is in Hong Kong:- (i) The father can have access from 10 a.m. on the first day of the holiday to 5 p.m. of the day before the next school day; (ii) The father can have staying access if the holiday is more than one day;

(h)   The above paragraph 5(8) – (i) The father can have access on alternate weekends from 10 a.m. on Saturday to 5 p.m. on Sunday; (ii) The father shall give 2 days prior notice to the mother if he cannot have a weekend access; (iii) If the father does not have weekend access, the paternal grandparents can have access from 12 p.m. to 5 p.m. on Sunday;

(i)    The above paragraph 5(9) – The paternal grandparents can have access from 5 p.m. to 8 p.m. on Tuesday;

(j)    The above paragraph 5(10) – During school term time, subject to his availability and with 2 days prior notice, the father can have access from 6 p.m. to 9 p.m. during a weekday;

(k)   The above paragraph 5(11) – Agreed;

(l)    The above paragraph 5(12) – Agreed;

(m)   The above paragraph 5(13) – Disagreed.    

7. The parties hold differing views on:

(i)    The split of the Easter holidays and the summer holidays;

(ii)   When the father has access during public holidays and single school holidays, whether the father shall return the children by 5 p.m. on the day before the next school day or he can have the children until the father sends them to school on the next school day;

(iii)   When the father has overnight access on alternate weekends, whether the father shall return the children by 5 p.m. on Sunday or he can have the children until they attend school on Monday;

(iv)   Whether the paternal grandparents shall have access on Tuesday from after school to 9 p.m. or from 5 p.m. to 8 p.m.;

(v)   During school term time, subject to his availability and with suitable prior notice, whether the father can have overnight access from after school until the father sends them to school next day or day access from 6 p.m. to 9 p.m. during the weekdays;

(vi)   With respect to the access arrangements set out above, whether the paternal grandparents shall have access to the children on the father’s behalf.

The split of the Easter holidays and the summer holidays

8. In so far as access is concerned, the court is primarily concerned with the welfare of the children and not the relative rights of the adults with respect to them.  This is generally said to be the right of the children, as opposed to the parents.  The children have the right to see and have a relationship with both parents.  It is not in dispute that it is in the best interests of children to remain in close contact with their parents.  It may be particularly so in the present case as it is noted that the children of the family have a very close relationship with both parties and their grandparents.  Neither is it disputed that the father shall have a greater share of the long holidays so as to compensate his loss of time with the children due to the relocation from Shanghai.  At the same time, I consider that due regard should also be given to the mother’s submission that the access arrangements must be fair to the mother as well so that she would have an opportunity to spend some quality time with the children during the long holidays.  In the premises, I regard that it is appropriate to allow the father to have the whole Easter holidays and 60% of the summer holidays while the mother shall have 40% of the summer holidays.

When the father has access during public holidays and single school holidays, whether the father shall return the children by 5 p.m. on the day before the next school day or he can have the children until the father sends them to school on the next school day; When the father has overnight access on alternate weekends, whether the father shall return the children by 5 p.m. on Sunday or he can have the children until they attend school on Monday

9. It is the mother’s concern that the regular pattern of the children’s daily living will be thrown into disarray, if overnight access is to take place on weekdays during school term time.  What the mother finds more troublesome is the father’s request to have access from public holidays and single school holidays until the next school day.  It is noted on behalf of the mother that such arrangement means the children will have to bring with them the school uniform, the books and their homework etc. when they leave home for the father’s overnight access.  She considers that it is very inconvenient to the children so to do and therefore the children shall go to school from home.  In this respect, I agree with the father that the parties are both educated enough to cope with the children’s homework and their daily routine.  There is no reason why the children must go to school from home.  I regard that when the father has access during public holidays and single school holidays, he can have the children until the father sends them to school on the next school day, and when the father has overnight access on alternate weekends, he can have the children until they attend school on Monday.  As the children need to bring with them the school uniforms, school books and home work, etc., apparently the father shall pick up the children from their home base.  The father shall pick up the children at 5 p.m. from their home base.

Whether the paternal grandparents shall have access on Tuesday from after school to 9 p.m. or from 5 p.m. to 8 p.m.

10. As stated by the mother, it is the typical weekday daily routine of the children during term time that the children go to bed before 10 p.m. and get up at 7 a.m. next day.  Accordingly, I consider that the children shall be picked up after school from school and returned to their home not later than 8:30 p.m. by the paternal grandparents.

During school term time, subject to his availability and with suitable prior notice, whether the father can have overnight access from after school until the father sends them to school next day or day access from 6 p.m. to 9 p.m. during the weekdays

11. By reason of matters stated in the paragraph 9 above, I also rule that the father can have overnight access from until the father sends them to school next day.  Again, the father shall pick up the children at 5 p.m. from their home base.

With respect to the access arrangements set out above, whether the paternal grandparents should have access to the children on the father’s behalf

12. I agree with the mother’s submission that grandparents cannot substitute the role of parents as primary care-givers and thus, it is not appropriate to let the paternal grandparents have access on the father’s behalf.

13. In summary, I make an order for the following access arrangements:

(1)   At all material times, the parties shall have free telephone email and skype contact with the children when they are with the other parent.

(2)   The mother undertakes to the father and the court that in the event that she will be out of the jurisdiction of Hong Kong overnight while the children are residing with her therein, she will provide 3 days prior written notice to the father who shall be at liberty to have access to the children during such time.

  Long school holidays

(3)   The children shall spend one half of school holidays in the care of the father and one half of the school holidays in the care of the mother for Christmas, New Year and Chinese New Year holidays.

(4)   The father shall care for the children during all Easter Holidays.

(5)   The children shall spend 60% of the summer holidays in the care of the father and 40% of the summer holidays in the care of the mother.

(6)   In the absence of a written agreement, the father shall care for the children during the first part of the holidays and the mother shall care for the children in the later part of the holidays.

Term Time Public Holidays and Single school holidays

(7)   The father shall care for the children in all public and single school holidays.  The father will provide 3 days prior written notice to the mother if he will not be in a position to have access with the children at such times.  The father shall have such access from 5 p.m. before the public holidays and single school holidays until the children attend school on the next school day.  The father shall pick up the children at 5 p.m. from their home base.

Term time

(8)   During school term time, the father shall be at liberty to have access to the children on alternate weekends from 5 p.m. on Friday until the children attend school on Monday morning.  The father shall give 2 days prior notice to the mother if he cannot have a weekend access.  If the father does not have weekend access, the paternal grandparents can have access from 12 p.m. to 5 p.m. on Sunday.  The father or the paternal grandparents shall pick up the children from their home base.

(9)   The paternal grandparents shall have access from after school to 8:30 p.m. every Tuesday during such times the father will endeavour to join them if this is possible.

(10)   During school term time, upon the father providing 3 days prior written notice to the mother, the father shall have overnight access from 5 p.m. until the father sends them to school each day when he is in Hong Kong.  The father shall pick up the children from their home base.

(11)   For the avoidance of doubt, the access referred to hereinabove under clauses 8, 9 and 10 shall not exceed 15 days per calendar month during term time.

(12)   There be leave to the father or his parents to remove the children temporarily from Hong Kong for travelling to facilitate access.  The father shall give an undertaking to the mother and the court to return the children to Hong Kong upon the completion of the access.

14. Unless I receive submissions to the contrary within 14 days hereof, I shall make no order as to costs, save that the respondent mother’s own costs be taxed in accordance with the Legal Aid Regulations.