Htl v. K,Re
Read the full judgment text of FCMC 1678/2013 on BabelCite. This Family Court judgment was delivered on 5 March 2015 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Variation of Access and Custody – Best Interests of the Child – High Conflict – Housing Conditions – Social Welfare Report – Defined Access vs Reasonable Access – Suspension of Staying Access – District Court – HTL v K,RE – Custody remains with mother – Access varied to day access only – Staying access suspended pending ancillary relief trial – No order as to costs
Legal issues: Variation of custody, care and control · Variation of access order · Defined or reasonable access to A · Suspension of staying access
Outcome: Father's summonses dismissed; custody remains with mother; access varied to defined day access; staying access suspended.
Cites 1 case
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FCMC 1678 / 2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 1678 OF 2013 ----------------------------
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________________ J U D G M E N T Introduction 1.This is an application by a Petitioner mother for a variation of the father’s access to the two children of the family who are now aged 13 and 8 ½ years old respectively. The father has also issued an application to vary the custody and other practical arrangements for the children. 2.This case was originally dealt with by my sister judge – HH Judge Bebe Chu. On the 10 September 2012 she handed down a 58 page judgment on custody, care and control and access. It is a very detailed judgment which followed a 17 day trial covering all issues pertaining to the children. For the avoidance of doubt the findings made by HH Judge Chu continue to stand. The full background to the marriage and the history of the litigation is set out in that judgment and I will not repeat the same here. Reference can be made to that information as necessary. 3.However for completeness sake I should add that the mother continues to work as a primary school teacher and that the younger child, J currently attends the same primary school as his mother. The elder child, a girl A is now attending senior school. She is in Form 2 and J is in P3. They are both being educated in the local system. The mother was born in Mainland China and emigrated to Hong Kong when she was a child. She is now almost 47 years of age. The father is American and he is currently unemployed. He describes himself as a full time parent. The father says that he was previously a religious pastor – although I have yet to see evidence of that. He is a little older than the mother at 56 years of age and is said to be suffering from ill health. The father comes to the Family Court on a regular basis and for a while could be seen in the forecourt XXX. He put up a Christmas tree during the festive season and placards could also on occasion be observed with positive messages on them. The father says that he counsels people from time to time and that he has learnt a lot by coming into the open sessions in my and other family courts. The husband is not currently working and he receives maintenance pending suit from the wife in the sum of HK$4,800 per month. He does not contribute towards the upkeep of the children. He is currently living in the former matrimonial home which is said to be in a poor state of repair. In particular there are leakage problems. It is not possible, for example, for the shower to be used. On occasions the husband has received CSSA and/or a disability allowance. He was originally granted legal aid which has since been discharged. 4.Following the trial HH Judge Chu made an order vesting sole custody and care and control of the children in the mother with defined access to the father. For the avoidance of doubt she said that the mother had the power to delegate care and control of both children to her domestic helper or to either of her parents. This continues to be a point of some contention between the parties. In so far as defined access is concerned she made the following order:
5.In other words the access arrangements for A and J were different – with J having staying access every weekend from Saturday evening to Sunday evening whilst A was supposed to have staying access on weeks 2 and 4 and day access on Saturday’s otherwise. The week day access arrangements for both children were the same. 6.Following an unsuccessful FDR hearing the case was then transferred to me for the ancillary relief trial. Unfortunately progress has been very slow for a variety of different reasons including legal aid difficulties (the father does not presently have legal aid), incomplete disclosure and an application made by the father for maintenance pending suit. The ancillary relief trial has now been set down for June. 7.In the meantime the parties made the current applications in relation to the children. The mother issued a summons dated the 30 December 2013 seeking the following variation to the access arrangements:
8.The father’s position was initially somewhat confused. He repeatedly told the court that he wished to apply to vary the arrangements for the children but he did not do so for a considerable period of time. Eventually on the 8 August 2014 he issued a summons seeking to “change the child care application”. However it was still far from clear at that stage what he was actually seeking. Finally this was clarified in his summons dated the 21 October 2014 when he asked that an
9.The mother for her part reiterated that she wished the orders for custody and care and control to remain in place. She simply asked to vary the existing access arrangements. The issues 10.Thus the present issues before the court are:
Present situation 11.The main difficulty in this case is that the very high level of conflict between the parties has continued unabated. Since HH Judge Chu’s judgment there have been ongoing difficulties concerning in particular A’s after school activities and school trips. The father will not sign the requisite school forms if the activities clash with either his week day access or holiday access. There have been a number of very unfortunate incidences involving the children, including a protest staged outside A’s school by the father and others in relation to a school trip and a police visit in the middle of a school event. Not surprisingly perhaps A has not reacted well to this. Since the beginning of 2013 she has “voted with her feet” and has simply refused to stay over with her father. Although she does apparently see him from time to time and the father says that they are in contact regularly by text, it is seemingly very much on her own terms. 12.J continues to see his father as ordered but there are concerns about the conditions for staying access and the pressure that two week day access visits are having on the child, who as I have said is being educated in the local system. The law in Hong Kong 13.The law has been set out in full in Judge Chu’s judgment and I will not repeat the same here save to reiterate that the right of access is generally regarded as the right of the child – i.e. the right of the child to have a relationship with his/her non caretaking parent. Further as in all matters pertaining to children we are guided by the following legislation:
14.The general principles governing such applications are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which says that: GENERAL PRINCIPLES
The mother’s open proposals 15.The mother’s position changed somewhat as the trial progressed. In her counsel’s closing submission she asked as follows:
The father’s open proposals 16.Following the trial the father wrote to the court asking to reopen the matter. His application was denied. I further directed that any additional proposals in relation to the child care arrangements should be included in his final submission. 17.In his closing the father said as follows:
The evidence 18.I must now turn to consider the issues, the law and the parties evidence as set out in the parties Form J’s and affidavits and as given orally by them during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court. 19.I have heard evidence from the father and the mother, the social welfare officer and the clinical psychologist. The father’s stance during the trial was extremely odd. He said that he had not read the Social Welfare Reports or the Clinical Psychologist Reports because they upset him and were damaging to his health. I offered him time to read the relevant documents but he refused to do so. He was warned that there might be cost consequences, but he still chose not to co operate or to participate fully in the process, notwithstanding the fact that this was partly his own application. Further he indicated that he had not read the wife’s affidavits. Thus he did not ask the experts any questions arising out of the reports. The Social Welfare Report 20.Recommendations made to the court in social welfare reports although not binding are generally considered to be very persuasive. In this case the social welfare officer had filed two reports. The second report was requested as she had only dealt with the issue of access in her original report, as this was filed prior to the father’s request to vary the custodial arrangements. It should be noted that the father refused to co operate with the social welfare officer with respect to the commissioning of the second report. He did not attend any interviews despite being asked to do so on several occasions. Consequently the social welfare officer did not feel able to make any further recommendations and none were given. However she did make the following points:
21.Further in her first report dated the 16 June 2014 the Social Welfare officer made the recommendation referred to in paragraph 16(b) above. It is often said that the social welfare officers are the eyes and ears of the court. This case is no exception. The observations made by the Social Welfare officer provided the court with a valuable insight into each parents home and their ability to take care of the children. In so far as the father’s home was concerned she said as follows: The father’s home
22.This accords with what the children say – i.e. that the house is not properly maintained and that there are difficulties in relation to electricity and water supplies. J either sleeps on a mattress on the floor or on a sofa and the father does not or is unable to cook for him. In contrast the mother’s home is reported to be tidily kept and furnished. The mother shares a bedroom with J and A has a bedroom of her own. There is also a domestic helper to assist with housework etc. The children’s views 23.In so far as access going forward is concerned A is said to have told the social welfare officer as follows, in the first report:
24.Whereas J’s position was reported to be as follows:
Clinical Psychologists Report 25.The clinical psychologist also filed a report which concluded inter alia that the mother was the children’s main attachment figure. His general observations were also very similar to those of the Social welfare Officer. For example he said that
26.The difficulty with that recommendation of course is that it fails to recognise the fact that J is currently staying over with his father every weekend and for half of the school holidays. The character of the parties The father 27.Concerns had been expressed by the mother with respect to the father’s mental health. During the trial her counsel complained of intimidating behaviour by the father. She said that the father would stare at both her and her client and that he would “sing” at them, whilst outside court or when sitting in the glass fronted conference room. The father in reply said that there was no law against singing. The mother also complained about other incidences in her written evidence. Having seen the father in the witness box and generally I accept that his behaviour can be unnerving. When I queried the fact that he appeared to be camping out in the forecourt he said that he had been given permission to be there by the Police. No evidence was ever produced in support of that statement. I should add that the tent has since been removed. Notwithstanding that I accept that the father’s behaviour is a cause for some concern. The mother 28.The mother although clearly under considerable stress presented well. Should the original order for custody, care and control be varied? 29.It does not seem to me that it would be appropriate to vary the order for custody and care and control. As set out in the social welfare reports the children are well taken care of by their mother – with whom they have an attached and bonded relationship. Both children are in the local education system and the mother is able to assist each of them – but particularly J with their homework. The father is unable to assist given that he does not speak Cantonese. The mother is also able to provide for them financially which again the father is unable to do given that he is currently relying on the mother for financial support. She is also assisted by both her domestic helper and her family in taking care of the children. Both children appear to be close to her. 30.In contrast the father appears at best to have a somewhat strained relationship with both children, although this is not accepted by him. A in particular does not choose to spend much time with her father – although this is disputed. J appears to struggle – especially during the week day access times when homework is a priority. There have been issues with respect to homework in the past. J has a lot of homework each day and he does not do his homework when he is with his father – which causes additional stress and difficulties. There are also significant issues with respect to the father’s present housing situation. The fact that the father was completely uncooperative with the social worker second time around is also a matter of some considerable concern. I have also noted that that she was not allowed access to the kitchen during the first home visit. 31.The father is proposing that there should be a split order with custody of A to the mother and custody of J to him. For the avoidance of doubt I do not think it would be appropriate in the circumstances to split the children or to vary the original order for custody and care and control. The children shall continue to reside with their mother and she shall continue to be the sole custodial parent. Should the access order be varied? Should there be an order for defined or reasonable access to A? 32.I expressed concern during the hearing given that the mother was initially seeking an order that she knew the daughter A was unlikely to comply with. The father in turn agreed that there should simply be an order for “reasonable” access and that A should be able to see him as and when she wished. The mother was very opposed to this. In her counsel’s closing she summarizes her position thus:
33.I can understand the mother’s worries in this respect – but I remain concerned about making an order that is unlikely to be complied with. However I am comforted by the fact that A did apparently confirm with the Social Welfare Officer that she would be willing to see the father on Fridays and Sundays. In such circumstances I am persuaded that it would be more appropriate for there to be an order for defined access to A as opposed to an order for reasonable access. Should staying access be suspended? 34.The mother initially asked inter alia that the weekend access for J be varied so that he had staying access on alternate Saturdays instead of every week. Further that on the alternate weekends that J had day time access with his father on Sundays. She also asked that A have access to her father each Sunday. The mother did not propose any substantive change to the staying access during the school holidays. Following receipt of the first Social Welfare Report she effectively asked that staying access during term time be replaced by day time access on alternate Sundays for both children from 10 am to 6 pm. This was in line with the recommendations made by the Social Welfare Officer. Again she did not propose any substantive changes to the arrangements during the school holidays. This was also in line with the recommendations made. In other words neither the mother nor the Social Welfare officer proposed that staying access be suspended generally. Although the Social Welfare Officer clearly identified some problems with the father’s present care arrangements – particularly in so far as housing and food was concerned, it is not clear why she proposed that staying access should be dispensed with during term time but not during the school holidays. Logically it should follow that if there were difficulties with the care presently provided by the father to the extent that overnight access during term time was not recommended, then the same could be said for staying access for prolonged periods over the school holidays. 35.The other difficulty is that the Clinical Psychologist has recommended phasing in staying access – when staying access is already taking place and is on the face of it problematic. 36.I have given this matter considerable thought. Should staying access be suspended until such time as the father’s living conditions have improved? To an extent the father might argue, and with some justification it seems to me, that is also dependent on the outcome of the ancillary relief trial and any decision that I may make in relation to the division of the assets (and in particular any orders that might be made in relation to the former matrimonial home). The other main issue relates to the earning capacity of the father and whether or not he is capable of earning his own living and contributing towards the upkeep of the children. Notwithstanding that however the father should nevertheless be able to improve his present living conditions – so that, for example, the apartment is neat and tidy and extraneous items are thrown away. It should also be dusted etc. He should also ensure that the children eat nutritional meals when they are in his care. 37.In such circumstances I have decided to suspend all staying access until after the ancillary relief trial whereupon the situation may be reviewed further. This will also be subject to a further Social Welfare Report. For the avoidance of doubt I will expect the father to co operate fully with the Social Welfare Officer in the commission of that report. 38.In such circumstances I have decided to make an order which is slightly different to the recommendations made by the Social Welfare Officer, but closer to the order originally sought by the mother. I am concerned that the children should be able to see their father at least twice a week. Thus I will replace J’s Tuesday and Thursday evening access times with Friday evening access from 6:30 pm – 10:00 pm. A shall also see her father on Friday evenings at the same time. This is longer than the two hours recommended by the Social Welfare Officer – which seems very limited in the circumstances, but is as originally requested by the mother. In addition I will order that both A and J see their father every Sunday from 10:00 am – 6:00 pm. The mother originally suggested weekly access – which again seems more appropriate to access every alternate weekend. As indicated above I have suspended all staying access for the time being. Thus there will be no staying access during the school holidays. Instead there will be day time access during the father’s share of the school holidays from 10 am – 6 pm. I will also swop the public holiday access as requested by the mother. Communication going forward 39.The parties find it virtually impossible to communicate at any level. The father suggested that the mother communicate with him by registered post. This is not really a sensible or realistic proposal. If a child is ill and cannot attend access – it does not make sense to send a registered letter. The father can clearly send text messages because he says that he communicates with A by text. I would suggest therefore that the parties communicate by text and only as absolutely necessary going forward. Pickups and drop offs 40.For the avoidance of doubt it is directed – and this will be included in the order, that both the mother’s domestic helper and the maternal grandparents or other third parties may assist with pickups and drop offs. School trips and activities 41.Further I will also direct that in the absence of agreement between the parties the signature of the mother only will be sufficient for either child to attend a school trip or/or other school activity. This is in keeping with the mother having sole custody of both children. Costs 42.The general rule of thumb is that in children’s cases there should be no order as to costs. In this case I warned the father that there may be cost consequences given his rather novel approach to the trial. Notwithstanding that I have nevertheless decided in the first instance to make an order nisi that there be no order as to costs. If the mother wishes to challenge that then she should file the requisite summons supported by an affidavit. Order 43.I will therefore make an order as follows:
Ms Josephine Tjia instructed by Tang, Lai & Leung for the Petitioner The Respondent appeared in person |
Cases cited in this judgment
Further hearings and rulings under FCMC 1678/2013