Lry v. Lcm Nee Mce

FCMC 14297 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14297 OF 2012

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JUDGMENT
(Variation of Custody, Care and Control)

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1.I refer to the Petitioner father as “P” and the Respondent mother as “R” respectively.

Introduction

2.This is the trial of P’s application for the custody, care and control of the two children of the family, viz., a boy, now aged 18 (hereinafter called “T”) and a girl, now aged 14 (hereinafter called “A”).

3.P, now aged 48, was born and brought up in France. He came to work in Hong Kong in January 1995 and is a permanent resident of Hong Kong. R is a Filipino, now aged 47, and also a permanent resident of Hong Kong. She worked as a flight attendant from 1990 to 2001. The parties met in Hong Kong in March 1995. They entered into courtship and started cohabitation relationship in 1996. R was pregnant by P and the parties were married in May 1997 in Hong Kong. She gave birth to T, the older son, on 29 September 1997 in Hong Kong. R resigned from her job as flight attendant and became a homemaker in 2001. A, the younger daughter, was born in September 2001. P worked as a director of a trading company from 2006 to early 2014. As stated in his Form E dated 12 November 2012, his basic income as a director was HKD194,500 per month.

4.The parties’ marital relationship was all along not as good as they had wished. P said that R often had arguments with him on trivial matters. R remarked that P was a controlling person who was always restricting her contacts with friends, and that P was always accusing her of trouble making. She recalled that she was beaten up by P and bruised her left eye in 2007. Although the parties had sought counselling, in an effort to salvage their marriage, their relationship did not improve. R saw a psychologist a few years ago. She was prescribed with anti-depressants. R rented a flat in Tai Hang and lived away from the former matrimonial home (hereinafter called “Elm Tree Towers”) sporadically between April 2011 and December 2011. In the end of 2011, the parties eventually agreed to separate. P rented a house in Big Wave Bay Village in January 2012. However, R left Hong Kong to Manila in March 2012, resulting in P moving back to Elm Tree Towers to look after the children. R returned to Hong Kong for visits to the children from time to time between April/ May 2012 to October 2012.

5.R said that she was informed by the helper on 16 June 2012 that P had gone to China for the weekend. She then took the children to the rented house in Big Wave Bay Village for the weekend. When they arrived, they were surprised to find P there with a woman. A heat quarrel between the parties ensued, during which, that P said, R madly hit him on the forehead with her mobile phone and, that R said, both T and she were beaten up by P. R and T went to hospital for examination and treatment a few days later. Both parties made a police report on the said incidence.

6.R moved back to Elm Tree Towers as P moved out for good in September 2012.

7.P filed the petition for divorce on the ground of unreasonable behaviour on 24 September 2012, which said petition was amended to consent one year on 21 June 2013.

8.On 14 May 2013 it is ordered by consent that:

(a) R shall have custody, care and control of T and A;

(b) P shall pay monthly a sum of HKD83,000, being HKD41,500 for the maintenance for each of the children, commencing from 1 June 2013;

(c) P shall pay R a lump sum of HKD2,881,000 in full and final settlement the parties’ respective claim for ancillary relief, HKD1,500,000 of which was put into an investment product that will provide for R when she turns 55 years old.

9.On 19 July 2013 it is further ordered by consent that P shall have the following access to the children:

(i) Visiting access for not less than one hour per week, to be arranged between the parties;

(ii) Staying access over weekends from 7.30 p.m. on Friday to 7.30 p.m. on Sunday; and

(iii) Staying access over holidays.

10.The Decree Nisi was granted on 17 December 2013.

11.P’s employment with the trading company was terminated by his employer in January 2014.

12.In January 2014 P issued committal proceedings against R for allegedly that she denied his access to the children. Upon encouragement from the court, the parties have attended mediation sessions and have reached an agreement on the issue of access in the terms as set out as the Mediation Agreement signed by the parties on 7 August 2014. Upon the parties’ mutual undertaking that the two orders respectively dated 14 May 2013 and 19 July 2013 shall have full force and effect, on 26 September 2014 it is ordered by consent that P shall have staying access to the children at least once a month.

13.P took out the summons for variation down of the maintenance payment to the children on 17 October 2014.

14.On 18 March 2015 R made an application for the issue of Judgment Summons against P for allegedly that P has defaulted in the amount of over HKD120,000 in the maintenance payment to the children.

15.P denied R’s calculation of the maintenance payment that he has paid for the children.

16.P took out the summons for variation of the custody, care and control of the children on 20 April 2015.

17.On 29 April 2015 the hearing of P’s summons dated 20 April 2015 was scheduled to take place on 9 and 10 September 2015, and the hearing of his summons dated 17 October 2014 was adjourned to a date to be fixed after the disposal of the children application.

18.P brought the children to a holiday trip in France for one and a half month starting from 9 July 2015 to 24 August 2015.

The evidence

19.A lot of evidence was adduced. Both parties testified. P filed his 8^th Affirmation dated 17 October 2014, the Updated Form E dated 28 November 2014, the Answer (to R’s Questionnaire) dated 8 January 2015, the Affirmation dated 10 February 2015, the Affirmation dated 20 April 2015. R filed her 9^th Affidavit dated 6 November 2014, the Updated Form E dated 11 December 2014, the Answer (to P’s Questionnaire) dated 8 January 2015, the 10th Affidavit dated 22 January 2015, the Supplemental Affidavit (to her 10^th Affidavit) dated 17 February 2015, the Affidavit dated 19 March 2015 and the Affidavit dated 27 April 2015. I also read the Social Investigation Report dated 3 December 2012 prepared by Mr. Ko Chi-wan, Ivanhoe, Social Welfare Officer, and heard evidence from Mr. Cheung Tak-mong, Social Welfare Officer, who prepared two updated Social Investigation Reports respectively dated 23 June 2014 and 27 August 2015.

P’s case

20.In summary, P’s case is:

(1) R is using the children maintenance paid by him to maintain her own living costs.

(2) He was unemployed for 20 months and is using up his retirement savings to maintain his living. T plans to study in a university in Europe for about 3 to 4 years. If A studies 3 to 4 years in university too, she will need P to finance her studies for another 10 years from now. It will not be possible for P to finance the children’s university education if P has to continue paying HKD83,000 per month to R for the children.

(3) P is fit to take care of the children.

(4) The children have been living with R since the parties’ separation and have been deprived of their father. T only has one school year left in Hong Kong before he pursues his university education in Europe and A is 14. He hopes that having the children living with him would translate into an extraordinary opportunity for the children and him to make up for the lost time.

R’s case

21.The grounds upon which R relies in opposition of P’s present application include :

(1) She has been the children’s primary carer for years. The children have been thriving under her care and it is not in the interest of the children to go through the proposed change in the present arrangements.

(2) The children do not like P’s present application.

(3) P’s application that is financially motivated is not in the best interest of the children in mind.

(4) R is prepared to facilitate P’s access to the children.

My view

22.P’s application dated 20 April 2015 is for an order for the custody, care and control of T and A. An order for custody, care and control is no longer required in T’s case, as he turned to 18 years old on 29 September 2015, but the court still needs to be satisfied that arrangements for his welfare have been made and are satisfactory or are the best that can be devised in the circumstance, he being a child of the family to whom the provisions of s.18 of the Matrimonial Proceedings and Property Ordinance Cap. 192 apply.

23.The general principles governing applications relating to children are set out in s.3 of the Guardianship of Minors Ordinance (hereinafter referred to as “GMO”) Cap. 13, which provide that: -

“3. General Principles

(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; and

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

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

24.As we have seen in the above, s 3 of the GMO states that if there are any court proceedings in which children are involved, the court shall regard their best interests as the first and paramount consideration. The court has a wide discretion in respect of children and the court will have to consider the facts of each particular case in order to carefully assess what may or may not be in the children’s best interests. The court will take into account all relevant facts such as the views of the children and the parents, the capacity of the parents to meet the children’s needs and the likely effect on the children of any change in their circumstance.

The views of the children

25.The court has a duty to consider the children’s views pursuant to s 3(1)(a)(i)(A) of the GMO. The views of the children are presented to the court as one of the matters contained in the Social Investigation Reports. Mr. Ko reported that:

“31. T was met twice during the home visits to both P and R’s abodes and an office interview with the Interviewing Officer on 19 November 2012 individually. T appeared to be cooperative and verbally expressive during the interview. He described that P was a strict father. P always dissatisfied what he did and scolded to him frequently. He recalled that he was playing with his friends at home one day. P suddenly asked him to leave his room and scolded to him for more than 30 minutes. Moreover, P always yelled to him that he did not have enough self study and home work and P even asked his teachers to give more homework to him.

32. T admitted that he had significant change in attitude towards P after the conflict with him happened on 16 June 2012 at the rented house in Big Wave Bay Village. He could not elaborate why he was so angry to P at that moment but he admitted that he had kicked the door, broken the table and thrown the chair to the wall after he had entered into the house. T said that P was a liar as he did not believe that the Filipino woman stayed with P on that moment was a lawyer. T said that he seldom talked to P after that incident.

33. T understood that his parents were going to divorce and he said that he wanted to stay with R at the Elm Tree Towers instead of living with P in Big Wave Bay Village. Even if R was required to move to another abode, T would follow here wherever she lived. T said that he preferred to further his studies in the local university for at least two years before deciding whether he would study abroad or not. However, he also though about working as the police inspector for two years upon graduated from FIS so as to earn enough money for preparing him to further his studies in the university.

34. A was met twice during the home visits to both parties’ abodes. She was also met individually during an office interview with the Investigating Officer on 14 November 2012 and a home visit on 28 November 2012. A could express freely when talking about her school life, her peers or her hobbies. However, she became more reserved when asking about her feeling towards the parents. She always answered the Investigating Officer’s enquiry by say “I don’t know”. A told that P had informed her about getting divorce with R. when the Investing Officer asked her: “do you have any ideas to help the judge decide what living arrangement would be best for you?” A simply answer “I don’t know” again.

35. A was asked to complete a worksheet before the individual interview with the Investing Officer and the task was completing several sentences with her own words. Some of the sentences were abstracted below (the words with underline were written by A):

No.3: “I wish my mom was not so protective”;

No.6: “My dad dated all different kinds of women, and shows them to T and I”;

No.11: “My mom takes good care of T, Sydney and I”;

No.21: “I wish my dad could stop shouting and using his energy or hitting us”;

No.25: “My dad’s girlfriend is a helper who has 3 children”.

36. A told the Investigating Officer that there were many cockroaches walking on the floor of the living room of P’s abode when she had the staying access there while the sofa bed that T slept at night was full of cockroach eggs. She thus did not want to sleep in the rented house in Big Wave Bay Village. A was asked whether she would keep staying at the apartment in Elm Tree Towers or not if P move in while R moved out. She said “No” but she could not tell the reason behind.”

26.In the 1^st Updated Report, Mr. Cheung reported that:

“Views of the Children-in-question on staying access

23. Both T and A expressed their willingness to have gathering with their father during weekend and holidays. They stated that they enjoyed the happy time with their father. In fact, they would return to France every year and would travel overseas, such as South Korea with their father during holidays.

24. However, both of them shared the same views that they would like to stay with their father only during the access. However, the living environment as well as the location of the rented house in Big Wave Bay Village might be undesirable to them. They might not tolerate the living environment with many insects, such as mosquitoes and cockroaches. In fact, they adapted to live in an urban environment since birth. Besides, as both of them were adolescent who want to have their own privacy, it would be better if separate rooms can be arranged for them.

25. Both T and A were again invited to have a face to face interview on 20.6.2014 so that they could express their feelings and wills about the access arrangement with their father. However, only T could attend the interview as R informed the Investigating Officer that A had joined the friend gathering. T was glad to know that his father was willing to listen to his voice and could offer him and A more flexibility on the staying access. On the other hand, T was found to still have some unsettled feeling on his father owing to his unhappy experiences as P hit him when he was young. T also expressed that he did not accept P’s girlfriend at the present stage and even cried out during the interview. Despite this, T’s true live to his father was seen”

27.In the 2^nd Updated Report, Mr. Cheung further reported that:

“Views of the Children-in-question on variation of Custody, Care & Control and Access Arrangement

24. Both T and A did not show their views on the variation of custody. They expressed that they would like to maintain the stable living and pattern. In fact, they had much more concern on their future study in overseas, especially for T who needed to pass the examination if he wanted to study mechanic engineering the in Edindhoven University of Technology in Netherlands. They showed no rejection to stay with their father in North Point for every three weekend and would like to go with him to enjoy holiday trip in France or other places.”

28.Taking an overview of the above reports, it is apparent that the views of the children have been that they want to continue living with R.

29.The court has a duty to consider the Social Investigation Report pursuant to s 3(1)(a)(i)(B) of the GMO.

Social Investigation Report dated 3 December 2012

30.Mr. Ko’s remarks and conclusions are : -

“39. … Nevertheless, both P and R objected to have joint custody in view of having difficulty to communicate and cooperate with each other, which hindered the Investigating Officer to recommend joint custody in this case.

40. Regarding the child care plan, both P and R have already had a live-in helper to assist in taking care of the children while they had gone out to work which was considered feasible. Both T and A were impressed to understand and had accepted the fact that their parents were getting divorce. Indeed, they had witnessed the fighting between the parents and felt the tension inside their home. They were also mature enough to express their views in the future living arrangement and clearly indicated their wishes to live with R who was comparatively close to them. Such being the case, I incline to recommend R, the Respondent mother to have the sole custody as well as the care and control of both T and A with the reasonable access being granted to P, the Petitioner father.”

Updated Social Investigation Report dated 23 June 2014

31.Mr. Cheung’s remarks and conclusions are: -

“26. The information gathered revealed that both P and R expressed their love and concern on their children even though their poor relationship hindered their communication. P showed great concern on T’s academic performance and he worried that T could not continue his study in FIS as his academic level was far below average in most subjects. R provided proper care to the children. She hoped that P could listen to the children’s voice so that the children would be more willing to gather with him.

27. Regarding the dispute over the child access arrangement, it was disappointedly that both parents still had big blockage in communication. Despite that it was a common phenomenon for many separated parent, both parents should consider the best interest and welfare of their children as their first priority so that the child could have a good parent-child relation and living environment when they grew up. Mutual communication was encouraged to them. As T and A were also mature enough to express their views on the access arrangement, both parents should learn to listen to what they said and what they wanted.

28. Through investigation, both T and A were encouraged to share their feeling and views with P, the father. Besides, P was suggested to give more choices to his children, such as to enjoy a concert and delicious dinner or to have a short trip with them during weekends. He agreed with the Investigating Officer and showed understanding on the developmental needs on his children. He hoped that T and A could enjoy and treasure the family gathering with him.

29. In short, P was found to have more understanding on the needs and developmental stage of their children after he attended mediation counseling. P agreed that T and A had no need to go to his abode in every weekend. As a good start to facilitate his children in gathering with him, P hoped that this access arrangement would be smoothly operated afterwards.”

Updated Social Investigation Report dated 27 August 2015

32.Mr. Cheung’s remarks and conclusions are : -

“25. Same as my last report, it was obvious that both T and A could all along receive both paternal and maternal love from their parents even though the poor relationship between their parents hindered the communication. On the other hand, it was found that there was an improvement on the staying access arrangement for the father and the children since last court hearing in September 2014.

26. However, an argument over the children maintenance occurred again between the divorced parents. It was disappointing that both parents could not settle their gaps during mediation due to their blockage in communication and poor relationship. Regarding the existing dispute between the parents and application on variation of custody, it seemed that it was an argument over the children maintenance rather than a custodial issue on child caring. In fact, R continued to provide proper care on T and A while P could maintain the regular contacts as well as staying access with them. As T will reach 18 and A will reach 14 soon in September 2014, there was less arguments over the care & control and access arrangement on the children. Variation on custody on their children might not be an effective way to settle their arguments over the children maintenance.

27. In the course of present enquiry, the Investigating Officer gave more chances to let them share their feeling and wills towards the variation of custody issue. It was supposed that both T and A would show their willingness to share their feelings and views because they were familiar to the same Investigating Officer. However they adopted a passive attitude and emphasized that they would like to maintain the existing living pattern with their mother. In fact, they had much more concern on their overseas study in future. It might reflect that they might be annoyed by the repeated arguments between their parents and did not want to get involved into the conflicts relationship between their parents again. As such, the children preferred to have a stable study and living in overseas. On the other hand, it was surprised that P did not discuss with T and A about his application for variation of custody on them during the long holiday trip in France.

28. Despite that it was a common phenomenon for many divorce parent, both parents should consider the best interest and welfare of their children as their first priority. In fact, repeated arguments would further hurt mutual co-operation and the parent-child relationship. Both parents should learn to listen to what the children said and what they wanted, especially T and A were mature enough to express their wills and views”

33.I have quoted extensively from the Social Investigation Reports because it seems to me it might be helpful to the parties, who have had tremendous difficulty in co-parenting effectively with each other, to have the benefit of reading it again so as to have a timely reflection on the urgency to put more effort into ending their conflict over the children and bonding more with their children.

34.The recommendations of Mr. Ko and Mr. Cheung are that it is in the best interest of the children continuing to live with R.

Economic Reality

35.In the supporting Affirmation filed on 4 June 2015, P stated :

“3. The Respondent is partially employed and has declared monthly income of about HKD5,000. With such income and with the assets that she has declared, she is unable to maintain her own living expenses. As a result, she is using the children maintenance paid by him to maintain her own living expenses.

4. I am still unemployed and without income. I maintain my living expenses by using up my retirement savings, however, my assets are being depleted at an alarming rate due to the high amount of the monthly children maintenance for which more than half is funnelled to finance the Respondent’s living expenses and apartment rental.

My assets and savings that were intended to finance part of my retirement are disappearing month after month. What will happen once neither parent is able to finance the children’s studies or daily living expenses? The current high costs of living with their mother is jeopardizing their future.

This is one of the reasons why the children living with me is in their interest, in their future’s interest.”

36.P accepted that financial concern plays a part in the present application. Simply put, the backbone of his case is that he (as well as the children’s future) cannot afford a monthly maintenance as much as HKD83,000. The way I see it, to address P’s financial concern, whether P or R should have the care and control of the children is not the question. The question is whether there should be a downward variation of the maintenance payment, an issue to be tackled in the impending disposal of P’s summons dated 17 October 2014. In short, I regard the present application is not the appropriate forum to cope with P’s financial concern. The economic reality not only has fiscal consequences, but impact on the quality of life for the children as well. P said again and again that R was using the children maintenance paid by him to maintain her own living costs. The thrust of his complaint is that R rented a three bedroom apartment in Braemar Hill for HKD40,000 per month. He felt strongly that it will be utterly unfair if he is required to continue using up retirement savings to finance her rental payment for a luxurious apartment, while he is living in a modest flat in North Point. As stated by Mr. Cheung in his 1^st Updated Reported (see paragraph 24), as the children are adolescents who naturally want more privacy, they long to have their own rooms. To give the children their space and privacy, R’s housing needs to have at least three bedrooms. R explained that she chose an apartment in Braemar Hill for it is near to the children’s school. There is no evidence that P can rent a comparable three bedroom apartment for less than HKD40,000 per month. Unless some sacrifices will have to be made in P’ household, if the children move to live with him, correspondingly limiting the resources available to the children, it is unlikely that the parties can save money simply by changing the daily care and control of the children from R to P. The point is whether there should be a downward adjustment of the quality of living that the children now enjoy. As what I said in the above, such point should be dealt with in the hearing of the summons dated 17 October 2014.

37.Over and above, R has taken the view that P’s expressed concern about children’s university education is overstated. Also, I shall leave the issue to the hearing of P’s summons dated 17 October 2014.

38.In his open offer, P suggested that once the children live with P, R shall become financially independent and split costs relating to the children’s expenses. I do not regard that P’s suggestion is realistic. R has sent out many job applications without success in securing a position in Hong Kong. She has a degree in business and law and has just finished her LL.M. this summer, but she is aged 47, does not speak Cantonese to be conversational and is lacking local experience and skill. All the above suggest that her chance of getting a job that covers her living expenses and housing need in Hong Kong, and at the same time pays her split of the children’s expenses, in the near future is low.

The parties and their capability to take care of the children and to meet their needs

39.The capacity of each parent to take care of the children and to meet their needs is an important factor. In the absence of abusive behaviour, the court will take into account the day to day care and who in practice has been the primary carer of the children. It is pertinent to take notice that, since she resigned from full time work in 2001, R has been actively involved in the day to day care of the children. Without in any way suggesting that P does not care or concern about the children, it shows that R is devoted to give her full care and attention to the children and she is able to give more time to them.

40.The parties have different styles of parenting. P was authoritative and was strict to T. T told Mr. Ko that P was always dissatisfied with what he did and was scolding him a lot. R also said that P was always shouting to T and beating him. On the contrary, R is always a permissive parent who shows lots of affection to the children. She is close to the children. According to A, R took good care of T and her (see paragraph 35 of the 1^st Reports). Mr. Cheung concluded that R had provided proper care to the children (see paragraph 26 of the 1^st and 2^nd Updated Report). The children have been consistently expressed the view that they want to continue to live with R. It demonstrates that they are content with the quality of care that they are receiving. T is studying Form 6. He plans to study mechanic engineering in university. T is popular in school, and A is a straight As’ student. The children are growing and developing well under R’s care.

41.P told Mr. Ko and Mr. Cheung that he thought R was emotionally unstable. In fact, she needed to see psychologist and was prescribed with anti-depressants. Both parties asserted that they had gone through a high conflict marriage breakdown. For my part, the last a few years has been an incredibly difficult time for the parties. No doubt R has been struggling to deal with the situation. She has come a long way and I regard that despite that she was devastated by the breaking down of her marriage, she is now ready to move on. Apparently, R has progressed in the recovery of her emotional problem and well maintained her improvement. At the trial, she appeared to be healthy and in good spirits. Her mood was stable. In my observation and assessment, I accept that R should be capable of providing proper care and control to her children.

42.Despite R’s arguments to the contrary, I accept that P should be capable of taking care of the children. Mr. Ko actually reported: -

“40. Regarding the child care plan, both P and R have already had a live-in helper to assist in taking care of the children while they had gone out to work which was considered feasible” (see paragraph 40 of his Report).

The parent and children relationship

43.The nature of the parent and children relationship is another factor that the court will usually take into account. Mr Ko reported that the children: -

“40. … clearly indicated their wishes to live with R who was comparatively close to them”

44.Like observations and remarks can be seen in the 1^st and 2^nd Updated Reports.

45.In the 1^st Updated Report, Mr. Cheung reported: -

“Relationship between the Petitioner and the Children-in question

13. T claimed that the father-son relationship was “okay” (T’s wordings). T showed no strong rejection to his father and was willing to gather with hi,. However, he stated that he would like to enjoy the family gathering with his father only during access but not his girlfriend’s family…

14. As stated by A, the father-daughter relationship was said to be satisfactory. However, she mentioned to the Investigation Officer that she still remembered his father had repeatedly hit T when he was young. She stated that she was still shocked by this episode. In view of such, she believed that it became some gaps between the father and them…

Relationship between the Respondent and the Children-in question

15. During the home visit on 19 May 2014 and office interview on 26 May 2014, A appeared to be a little shy but she still communicated politely with the Investigating Officer. She stated that she liked to play with his pet, a dog named Sydney at home. During leisure, she would chat with her friends through internet. The mother-daughter relationship was found to be satisfactory. A would listen to R’s instructions and would share her feeling with her mother.

16. T was passive during office interview, especially in the initial stage. After warm up, he could share his view with the Investigating Officer. He stated that the mother=son relationship was okay and he enjoyed his existing living pattern. As an adolescent, T stated to explore his independence and develop self-identity. In view of such, T showed no strong bonding on the family and he would like to develop his own views.”

46.In the 2^nd Updated Report, Mr. Cheung reported: -

“Relationship between the Petitioner and the Children-in question

15. T did not mention much more about the father-son relationship. However, he presented his dissatisfaction with his father in handling the courtship relationship with the girlfriend. T was disappointed on his father as his father as the latter always disregarded his feeling. On the other hand, he showed no strong rejection to his father and was willing to gather with him even though they seldom communicated with each other during the access and the long holiday trip. Besides, he did not know why the father applied the variation of custody on him and his young sister. T clearly stated that he wanted to maintain the stable living so that he could well prepare himself to continue his tertiary education in Netherlands.

16. Same as T, it seemed that A did not want to talk about the father-daughter relationship during individual interview. She only presented that she disliked her father to date with his girlfriend. A stated that she had accompanied his father to stay in France for one and half months. During this long holiday, she stayed with her paternal grandparent and only visited the Eiffel Tower, a famous tourist place in Paris. She further mentioned to the Investigation Officer that she wanted to maintain the stable living as she believed that it was good for her under the caring of her mother because she could communicate well with her. She stated that she only wanted to gather with her father but not under his caring.

Relationship between the Respondent and the Children-in question

17. During the office interview on 28 May 2015 and home visit on 25 August 2015, both children were observed to have close relationship with the mother…”

47.With a comparison between the parties, it is obvious that R has a more close and intimate relationship with the children.

Opportunity for the children and P to reconnect?

48.In his supporting affirmation, P stated

“5. … The children have been living with the Respondent since the separation. They have gone through their last years of childhood with the Respondent. I have been deprived of this as well as they have been deprived of their father. Now that they are no longer kids – T is about to turn 18 years old and A 14 – this is the last chance for the two of them and I to spend time together under the same roof before they move on with their life. They had their time with their mother. I feel that it is now my turn to be with them.”

49.I agree that the children need their father. For example, as T grows older, it can be argued that a father with an older boy is important to give structure and direction. However, P has had regular and close contact with the children. R is agreeable to P having generous access to the children. Under the consent order dated 19 July 2013 (which is still valid), he has weekly day access, staying access over weekends and generous staying access over holidays that include:

(a) Chinese New Year holiday plus February school break;

(b) Mid July to end of August of the Summer holiday;

(c) Spring break and Autumn school break;

(d) Christmas holidays and New Year holidays in alternate years, staring with Christmas 2013.

50.In the 2^nd Update Report, Mr. Cheung reported

“13. As reported, P could directly contact the children over the phone and the arrangement on staying access was claimed to be good…

14. During this summer vacation, P brought the children to have a long holiday trip in France for around one and half month …”

51.I consider that P should have sufficient opportunities to continue, develop and strengthen the father-children relationship with the access arrangements.

Overall, what are the arrangements in the best interests of the children?

52.I remind myself of the provisions of s 3 of the Guardianship of Minors Ordinance, Cap. 13 which provide that when a court determines any question with respect to the custody or upbringing of a minor, the court shall regard the best interests of the minor as the first and paramount consideration, and in having such regard shall give due consideration to the Social Investigation Reports and all relevant factors. I consider the factors that are important in this case are the views of the children, the parties’ capability to take care of the children and to meet their needs, and the likely effect on the children of any change in their circumstance. As to P’s primary concern that centres on his financial burden of paying HKD83,000 per month for the maintenance of the children if they continue to live with R, for the reasons that I set out in the paragraphs 35 to 38 above, I consider that the importance of the financial concern as stated by P is of comparatively minor significance in the present case. T is 18 and A is 14. They are mature enough to understand the significance the present application. I consider that I should place a particular weight on the views of the children. They have consistently given the views that they prefer to continue living with R. Despite that both parties have the capability of taking care of the children, it is obvious that R in comparison to P has a more close and intimate relationship with the children. I also take notice that R has been able to give more attention and time than P to the care of the children. Actually, she has been the children’s primary carer for many years and she is willing to continue playing this role. The status quo that favours R is important in the present case because the children have repeatedly said to Mr. Ko and Mr. Cheung that they wanted to keep the present stable living condition. In particular, T wanted to focus on his grades in the current school year. He requires the grades that can provide him a place in his favourite university. The last thing he needs to have for the time being is the disruption that might be caused by uprooting and removing him from the present stable living.

53.Having carefully considered all of the relevant factors and having given due consideration to the Social Investigation Reports, looking the evidence in the round, I am persuaded that it would be in the best interests of the children to continue living with R.

54.In conclusion, it is ordered that P’s summons dated 20 April 2015 be dismissed.

Costs

55.This being a child related matter, it is ordered nisi that there shall be no order as to costs, including all reserved costs. The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.

The Petitioner is unrepresented and appeared in person

The Respondent is unrepresented and appeared in person