Jdys v. Eyck also known as Keyc

FCMC 12871 /2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12871 OF 2009

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JUDGMENT
(Variation of care and control and/or access)

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Introduction

1.By his summons of 22 May 2014, the respondent (“father”)  applies for increased access as follows:

(1)  the children would stay with him either from thursday (after school) until 6 pm on saturday, or from 6 pm saturday to tuesday morning when he would bring the children back to school on an alternate basis;

(2)  wednesday dinner access from 6-8 pm.

2.Upon receiving favourable recommendation of the social investigating officer of this case, the father revises his request from increased access to a week on/week off shared care arrangement.  In gist, he wishes to be more involved in the children’s lives and be able to make decision for them.  The petitioner (“mother”), however, says that due to lack of communication and trust between the parties in this high conflict family, shared care and control arrangement simply does not work for them.

3.The parties are both medical practitioners. The mother, a Malaysian Chinese mainly grown up in Hong Kong, is a paediatric surgeon running her own clinic. Besides, she takes up a part time job with the Hospital Authority, which requires her to work 3 half days per week. The father, also a Chinese, was born in Hong Kong but educated in Australia. He is now an employed general medical practitioner.

4.They met each other while working in government hospitals and got married in 2003. The mother alleged that the father had an extra-marital affair in 2007. Despite that, attempts were made to salvage the marriage but in vain. In 2009, the father moved out from the matrimonial home and they never cohabited again.  The mother filed a petition for divorce in the same year. Decree absolute was granted on 20 April 2011.

5.Three children were born within their wedlock:

(1)  The eldest son (“N”), born in 2004 and now aged 12;

(2)  The elder daughter (“AN”), born in 2007 and now aged 9 ;

(3)  The younger daughter (“AS”), born in 2008 and now aged 7.

6.When the parents separated in 2009, the children of the family were all very young. N was only 5, AN nearly 2 and AS about 1.

The 1^st and 2^nd Consent Orders

7.To avoid acrimonious litigation, the couple was said to have undergone mediation running for over 1 year and conducted by senior counsel specialising in family law. Settlement on children matters was finally reached.  By a consent order dated 1 February 2011 (“1^st Consent Order”), it was ordered, inter alia, that:

(1) joint custody of the children was granted to both parties;

(2) care and control was granted to the mother;

(3) the father was allowed to have (a) staying access for 24 hours each weekend to be taken between friday and sunday; (b) wednesday night visiting access between 6-8 pm;

(4) basically equal split of school holidays except summer holidays which shall be agreed by the parties 2 months in advance.

8.Just about 2 months after the 1^st Consent Order was made, the father took out a summons in April 2011 for increased weekday access. He was not satisfied, among other things, that the mother insisted to count the travelling time between 2 households into his weekday access time, thus to him meant reducing his quality time with the children.  A month later in May 2011, the mother, frustrated by the demand of the father to inform/consult him on each and every activity of the children and for increased weekday access, took out her summons for variation of joint custody to sole custody in her favour.

9.Fortunately, the parents were able to reach a settlement. On 15 November 2011, a further order by consent was made (only the relevant parts were listed out) (“2^nd Consent Order”) in this way:

(1) both parties to withdraw their respective summonses for variation of access or custody;

(2) the mother shall only be required to inform, discuss and get mutual consent with the father on major issues of the children;

(3) the parties shall have alternate weekends with the children.

10.The combined effect of the 1^st and 2^nd Consent Orders means that the father can see the children for 26 hours per week only during school term.  A few years down the road and with the children getting older, the father now seeks to spend more time with them and hope to play a greater role in their lives.

11.Despite 2 children dispute resolution sessions were held, the parents were not able to compromise, thus leading to a 7-day full-blown trial before me, during which they were extensively cross-examined on literally every single line of emails that were written between them in the recent years on the children’s matters such as after-school interest classes, birthday invitations and school holidays arrangements.

Current arrangement

12.At present, the children live predominantly with the mother in Repulse Bay. When they have access with the father, they stay in his home at the mid-levels. The travelling time between 2 households is about 30 minutes.

13.Since both parents are working full-time, they are assisted by their immediate families (ie their parents and/or siblings), maid(s) and driver in the caring and delivery of the children when they are at work.

14.The children are now studying in the same international school in North Point. Morning assembly of the school takes place at 7.45 am and classes last from 8 am to 3 pm. Both parents usually attend the morning assembly and actively participate in school functions of the children.

15.The mother is the primary responder to school notices. She is also the primary person arranging for the children’s after-school interest classes or tutorial classes (collectively “extra-curricular activities” or “ECAs”) which usually fall on mondays to fridays. The father has also arranged his chosen ECAs for the children during his access time on saturdays. It can be said that the children have a rather hectic ECAs time table.

16.Since the 2 CDRs, I have gradually extended the father’s access time to the children. His current access to the children during school term that has been put in place since January 2015 is like this:

(1) Each mondays and wednesdays access from after school to 8 pm;

(2) Week 1: staying access from friday 3 pm (after school) to saturday 6 pm;

(3) Week 2: staying access from saturday 10 am to next monday when the father will take the children to school;

(4) The father has to take/collect the children to/from the ECAs during his access time, and to drop off the children at the mother’s home at the end of each access.

The father’s case

17.The father has filed 3 affirmations in support of his application. He has also filed an affirmation of his mother (paternal grandmother) to support his case. But the paternal grandmother was not called during the trial, as it was confirmed by the mother that she did not need to cross-examine her. His reasons for change of care and control arrangement in this trial can be broadly summarised in the following paragraphs.

18.Firstly, the mother is busy at her work and has to delegate the daily care of the children to a third party such as her maids, driver and/or the maternal grandparents. By comparison, he is more flexible in his working hours and can return home by 6 pm during weekday to keep the children accompanied and to supervise their homework.

19.Secondly, the mother is restrictive in allowing him more access time but insists on the status quo. The ultimate reason is because she wishes to retain “control” over the children’s matters to his exclusion. A shared care order would avoid the misconception that one party is “in charge” (See: A v A (shared Residence) [2004] 1 FLR 1195 at §§123-126).

20.Thirdly, he is a more hands-on parent who has kept a strong and close bondage with his children despite limited access granted to him under the 1^st and 2^nd Consent Orders. As the children have now grown older, they have indicated their wish to see him more.  He also wants to spend more time with them, not just as a “weekend daddy” and have a greater say in their daily lives and be able to make decisions for them, instead of merely being informed by the mother of the issues when they occur.

21.Fourthly, since both parents have a very different parenting style (his being more strict and disciplined while the mother’s more laid-back), a week on/week off shared care arrangement would allow the children to have a block of time with each parent, during which they can be fully accustomed to 2 households with 2 different sets of house rules. Further, if access time is shared equally and fairly between both parents, this would take away any loyalty issue that the children may be facing.

22.His latest proposal is thus a week on and week off shared care arrangement with change over on friday at school.

23.To address to the question of lack of effective communication between the parties, the father suggests that both parties should write only factual emails either for response or for information without giving accusatory comments. He also suggests that the mother should have, like what he has done, made full use of the online calendar, on which all activities of the children such as ECAs and birthday parties are marked for reference of either party.

24.Children’s ECAs and other activities should be discussed and agreed by both parties but not for the mother to dictate on him. In case of disagreement, they may resort to a jointly engaged parenting coordinator for advice.

The mother’s case

25.The mother has filed 2 affirmations to oppose the father’s application. She has also filed the affirmations of her parents (maternal grandparents) in support of her case. However, only the maternal grandfather was called to give evidence, after which the father informed this court that he did not need to cross-examine the maternal grandmother.

26.In a nutshell, the mother vehemently opposes the idea of shared care and control. She firmly believes that the status quo should be maintained, with the children staying with her in her home during weekdays and seeing their father during weekends. Her rationale can be broadly described like this:

(1) the children need a stable environment to develop a sense of belongings. Moving between 2 households during weekdays is extremely stressfully and confusing for them, because they will have to be subject to different parenting styles of the parties, which will be detrimental to their sense of stability;

(2) a shared care arrangement would involve a lot of communication and cooperation between the parents which is obviously lacking in this case, due to the father’s lack of flexibility and antagonistic approach in his contact/emails covering the topics such as ice-skating, Chinese new year and summer holiday sharing, birthday party invitation;

(3) The inability to cooperate in a shared care arrangement would lead to emotional turmoil for the children. It will also cause interruption to their weekday schedules and difficulty in arranging ECAs.

27.The mother is very dissatisfied that the father directs various false allegations against her, eg, not taking care of AN while she was sick; not supervising the children’s homework; overlooking N’s tooth cavity problem.  She maintains that she is the primary care-giver of the children who have thrived and flourished under her care.

28.Much as the father alleging that she merely wishes to take control of the children’s matters, the mother directs the same accusation towards the father. She says that his application is not for the best interest of the children, but aims only at getting equal footing with her and to take control over children’s matters, which she suspects in the longer run, would lead to his bold application for variation of custody, care and control to him solely.  

29.In her view, the father makes use of his right as a joint custodian parent to make unreasonable demands to her and expect her to inform/discuss with him every decision as trivial as, for example, whether the children should attend a particular birthday party. He has caused trouble by talking to the children via mobile or facetime repeatedly while they are under her care or the care of the maternal grandparents in the disguise of teaching them to do their homework. As a result, the children refuse to take bath when asked to, or insist to do their homework not at home but at the father’s place. This has adversely undermines the child caring ability of the mother and the maternal grandparents.  

30.While she does acknowledge that the children would like to see their father more, the problem is that she cannot carve out more time out of their packed time table during weekday for the father. It is therefore her latest proposal that the father should have staying access on alternate week basis either (1) from friday after school to next monday by 8 pm, or (2) from friday after school to saturday by 3 pm plus a weekday access on monday after school to 8 pm.

Applicable law

31.Under section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192, the court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18.  Apart from that, the general principles governing applications concerning children as set out in section 3 of the Guardianship of Minors Ordinance, Cap 13 also apply (See: section 48C of the Matrimonial Causes Ordinance, Cap. 179).  Section 3 states that:

“(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 wishes 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.” (emphasis added)

32.When applying the welfare principle under section 3(1) of the Guardianship of Minors Ordinance, counsel for respective parents in this case refer me to the “welfare checklist” referred to in the English Children Act 1989 and in the recommendation of the Hong Kong Law Reform Commission’s report on custody and access of 7 March 2005, which have been consistently adopted by family court judges in their judgment. Those factors are:

(a) the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the nature of his relationship with each parents and other persons;

(d) the likely effect on him of any change in his circumstances;

(e) his age, sex, background and any characteristics of his which the court considers relevant;

(f) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g) any harm he has suffered or is at risk of suffering;

(h) any family violence involving the child or a member of the child’s family;

(i) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on regular basis;

(k) the range of powers available to the court in the proceedings in question;

(l) any other fact or circumstance that the court thinks is relevant.

33.I would add that in H v N [2012]5 HKLRD 498, Poon J (as he then was) endorses the practice of using the above welfare checklist subject to 3 caveats (at §§26-33 of the judgment):

(1) it is not compulsory that the judges must have regard to the welfare checklist. Whether a judge may wish to make use of it and if so how is entirely a matter for him.  For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him;

(2) even if the welfare checklist is used, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one; and

(3) the welfare checklist is not meant to be exhaustive. Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

34.In the premises, I will only consider those factors in the welfare checklist in so far as they are relevant to this case.

Social investigation reports (“SIRs”)

35.Subsequent to the father’s application for increased access, 2 SIRs dated 11 September 2014 and 8 October 2015 were respectively prepared by social investigating officer, Ms Wong (“SWO”). In both her SIRs, she recommends that a week on/week off shared care arrangement should be put in place.

36.In her 2^nd SIR of 8 October 2015, she remarks that,

“27. The present enquiry revealed that both [the mother] and [the father] were caring and loving parents towards their three children. Despite their separation, they made endeavour to actively involve in the children’s daily lives, maintain intimate parent-child bonding and meet their developmental needs so as to minimize the negative impact on the children during their upbringing. It was impressed that [the mother] and [the father] were equally good and important in the hearts of the children thought they had different parenting style. [The mother] seemed to be more child-centred with more autonomy to the children while [the father] was a more structured father who rendered more discipline on the children. Nevertheless, both parents could nurture an attached and harmonious relationship with the children. According to the general case phenomenon, the child was hardly [able] to maintain a close relationship with the other parent who was only granted with access and he/she was usually resistant to increase the access time to meet with the other parents. On the contrary [in] the present case, the children were eager and motivated to see their father more. It was believed that the attributing factors were that [the mother] did not disparage [the father] in front of the children but instead facilitated the access between the children and their father whereas [the father] devoted himself in spending the quality time with the children. It was much appreciative to both parents who also contributed to cherish and build up the positive parent-child relationship respectively.

28.   To examine the capability and resource of [the father] to have the increased access or shared care, it was affirmative that [the father] was a committed father to provide hands-on and sufficient care to the children. He demonstrated his dedication in child care by adjusting his work schedule during access time and organizing enriched holiday plans for them.  Apart from his stable and flexible working hours which were compatible with the child care arrangement, [the father] was also aware to modify the accommodation to provide a better living environment for the children.  After the two CRD, more access being granted to [the father] implied that it was confident to let him shoulder more care for the children.  Taking into account that [the father] performed the child care satisfactorily for the past 10 months and the father-child relationship was maintained desirably, it was no doubt that [the father] had adequate potential and capacity to share the care and control of the children.”

37.I have no reservation in accepting the observation of the SWO that both parents, despite their difference in their parenting styles, are equally good, positive and important in the hearts of their children.

38.Without doubt, the father fully embraces the recommendation of the SWO. The mother, however, does not agree with the recommendation. Her counsel, Ms Tjia, submits that the SWO has not fully apprehended the background and history of this family, in particularly why the 2^nd Consent Order comes into being. The SWO has taken full on board the concern of the father, yet she has never addressed on the mother’s concern over the lack of ineffective communication and trust between the parents and how these would affect the children once split care and control is in place. She has neither addressed to the question of loyalty conflicts of the children, especially that of N. She simply relies on the very positive assumption (but it is a wishful thinking) that both parents, being educated and professional adults, would be able to solve the communication problems themselves.

39.I will say more on the issues of lack of communication and trust, and loyalty conflict in the later part of this judgment. At this stage, it is quite sufficient for me to express my view on 2 points.

40.Firstly, Ms Tjia for the mother submits that the SWO has failed to apprehend the background/history leading to the 2^nd Consent Order. Ms Tjia says that back in 2011, the mother applied for variation of custody from joint custody to sole custody to her and that she received a favourable SIR recommending sole custody to her. But to avoid a full-blown trial, she agreed to maintain a joint custody order but she shall only be required to inform, discuss and get the mutual consent of the father on major issues of the children only, which, Ms Tjia submits, is in effect akin to a sole custody order.

41.I have checked the court documents and the SIR (dated 14 November 2011) at the material time. What actually happened is like this. At the stage when the said SIR was being prepared, the parents had already indicated to the social investigating officer that they were able to reach an agreement and that they did not want any interview be conducted with their children. Hence, the SIR did not give any recommendation on the applications of either party. In such circumstances, the case history shows that both parties were quite able to compromise and settle in the best interest of their children. I fail to see how the SWO should be faulted as failing to apprehend the background/history of this family.

42.Secondly, although the SWO was deployed to the current post of advising children’s matters in divorce cases since 2013, she graduated from social works course as early as 1997, and since then, her various posting have involved her in family and children’s matters. In the premises, the SWO cannot be said as having insufficient experience in advising on children’s matters.

Ascertainable wishes of the children

43.The children in this case were interviewed by the SWO for the purpose of preparing 2 SIRs, as well as by Dr Lynette Levy Bandeira, the single joint expert on child psychology (“SJE”). The SJE was engaged to prepare an opinion report on,

“ whether shared care and control on a split week basis would have any effect on the children and whether it is advisable”.

44.The interviews by the SWO and the SJE with the children all show that despite the father is a more disciplined parent to them, the children would like to see him more and are happy with the increased access arrangement.

45.In particularly, the elder ones, N and AN, show their emotional attachment to the father. For example, N told the SWO in the 1^st SIR that he felt the happiest and relaxed when staying with his father who understood him more and concerned about his opinions.  For AS, she told the SWO that she had a betting relationship with the father. Both the elder children think that the father is much fairer in handling the disputes between siblings, especially those between them and the little AS. They both indicate clearly to the SWO that they do not agree to revert to the old weekday access arrangement under the 1^st and 2^nd Consent Orders. 

46.The elder children support the shared care arrangement because they think that it is the fairest and easiest way to spend their time with each parent.  N supports the week on/week off plan, whereas AN suggests that she should stay with each parent on a fortnightly basis. AS, being the little one in the family, is too young to understand the week on/week off pattern, but she tells the SWO that she loves both parents equally and prefers both of them to stay with her when she is sick.

47.It is not in dispute that the children of this case are articulated and intelligent and show their readiness to express their view. There is no allegation of coaching by either parent to any of the children on expressing their view in this case. In fact, the mother also accepts that it is the genuine voices of the children to see their father more.

48.Upon all due consideration, I take the view that it is the true and ascertainable wishes of the children to see their father more, on which I shall place heavy weight.

49.However, the mother raises her concern that the children are too young to appreciate the adverse effect of the shared care arrangement on them, which will bring me to the next topic for discussion.

Adverse effect on the children

50.It is the mother’s general view that increased staying access extended to a weekday, not to mention a week on/week off shared care arrangement, would adversely affect the children, because they will be subject to different parenting styles, increased loyalty conflict and lack of stability. She is very concerned that moving back and forth between 2 homes will be very stressful and disruptive for the children’s daily lives. She prefers the children to stay with her at her home, which is also their primary home, during weekdays and sees their father only over weekends.

51.Among other things, the mother relies on the ice-skating incident to show that the children were caught in the loyalty conflict. Very briefly described, the incident happened in this way. On 30 January 2015, 9 days after this court extended the father’s access by allowing him extra evening access on monday, the mother wrote an email to the father informing him that the piano lessons of the daughters at the North Point on the future wednesdays would end and be replaced by ice-skating lessons at the Elements, Kowloon at 4 - 4.30 pm, while the son would continue with his drum lessons at the North Point between 3.30 - 4 pm. The father opposed to imposing any additional activities during his access time without any prior discussion. He asked for details of the coach so as to make his own arrangement for the daughters. The mother asked for his reasons of objection and when the same was not provided by the father, asked him to “google” himself for telephone number. The daughters ended up telling the father that they are “not that keen” to go ice skating, when the truth is, says the mother, that this was something they love to do (“Ice Skating Incident”).

52.At this juncture, I tend to think that the mother has over-magnified the Ice Skating Incident to one of loyalty conflict affecting the well-being of the daughters which I do not agree. In my view, it is merely an example of the communication problem that the parties need to work and improve on. For example, on her part, she should not have merely informed the father of any change in the ECAs during his access time; she should have consulted him prior to any change. On the part of the father, he should have provided his reason(s) for objection, no matter whether that was asked for by the mother. Merely objecting without giving reason(s) promptly should not be encouraged because this would help in improving communication.

53.I shall have more to say on the issue of communication in the latter part of the judgment.

54.The mother also relies on the observation of the SJE about N in her report dated 13 January 2015 to support her view firstly that the SWO has not considered the children’s anxiety problem in her investigation, and secondly that the children are already subjecting to loyalty conflict which would be further escalated if shared care arrangement is put in place. On N and AN, the SJE observes and describes the following:

On N                             

“…N expressed that his parents do not get along and they tend to ignore each other in the presence of the children. N indicated that he has learned to keep some distance during these times as he does not want an argument to erupt as the situation feels awkward for him. He reported that he always feels caught between his parents, and feels pressured to ensure both sides are happy. He indicated that he feels that the situation can be improved by his parents agreeing with each other more, something he noted that his mother in particular finds challenging.

N expressed feeling some anxiety and embarrassment about having two homes. Although this does not arise frequently, there have been occasions where his friends have noticed that his parents do not reside together, and he indicated that he is not sure how to handle such a situation. He has developed a number of strategies to anticipate and manage potential situations, suggesting that the issue may be quite prominent in his mind.”

On AN

“she does not like to be caught between her parents and manages this by walking away or ignoring her mother when her father is present.” [1]

55.On the submission of Ms Tjia that the SWO has failed to read the SJE report about the anxiety of the children, in particular of N, before she interviewed them for the purpose of preparation the 2^nd SIR, I do not think it is a fair comment directed to the SWO. As an eye and ear of the court, the SWO should carry out her investigation or interview with the children independently, not to be pre-tainted with any views of any third party, be it of the parents or other professionals such as clinical psychologist. But when she has concluded her own interview and is formulating her recommendation, she is entitled to take into account all other available information, such as any opinion from relevant professionals.  This is exactly what the SWO in our case has done and she cannot, and should not, be criticised for what she has properly done.  

56.Further, it is the SWO’s oral evidence that N did not express any concern or anxiety about having 2 homes during her interview with him. I have no reason to disbelieve the SWO.

57.As a matter of fact, after the SJE report was prepared and sent out to the parties, the mother took the children, without informing the father beforehand, to consult another clinical psychologist, Dr Rachel Poon, on 20 March 2015 on the issues of loyalty conflict and anxiety and “to ensure that emotionally and psychologically the children can cope with stress and anxiety caused on them by their parents’ on-going conflict”.[2] It is indeed telling that the mother has not suggested in this trial that the children, in particularly N, need any immediate child psychology treatment or attention upon such consultation. In fact, when being cross-examined in court as to why she did not tell the father of the consultation with Dr Poon beforehand, she replies that,

“ it was pre-mature to tell the father unless the children had a major medical or psychological issue that I needed to let him know about. ”

suggesting that in her own evidence, the children do not have any major psychological issue, and this is so despite the increase in access since the 2 CDRs. 

58.On the other hand, it is pertinent for me to point out that in the opinion of the SJE, the children of this case, including the youngest AS, are emotionally strong, adaptive and robust enough to adapt to a shared care arrangement. All of them are fully aware and embrace well the idea that they have 2 homes and that their parents have different parenting styles. I have vivid memory during the SJE’s oral evidence that when she interviewed the elder ones, N and AN, and asked them about “home”, they immediately asked her “which home?” This shows that the children really feel that they belong in both homes.

59.On the possible dilemma of N expressing his anxiety to the SJE of having 2 homes on one hand, but also seems to embrace fully the idea of having both homes on the other hand, the SJE gives her view as follows:

“Court:	And you also in your evidence tell me that when you try to ascertain from the three children about their ideas of homes, they ask you “which home”, right?  So I’m a little bit confused here.  Is there anything we need to express our concern to when N on one hand expressed his anxiety of having two homes, but one on other hand seems to tell you that he has two homes.  So how do we reconcile these two dilemmas?
SJE:	Yes.  When the children asked me “which home”, what that says to me is that they feel comfortable in both homes and that they feel they belong in both homes.  In some cases when there is access, the children feel that they’re just a visitor in the other parent’s house, but this speaks to, I think, the involvement of the father is that they feel that they have a home here.  Children this age are also often very embarrassed by the fact that their parents might be divorced.  So he may be very comfortable, but it’s that embarrassment of other people saying, you know, “why do you have two homes?”
Court:	So something to do with privacy to the outsider?
SJE:	Correct, and how people will view him. Sometimes that’s easily resolved just by letting them know how many children around them have similar situations.
Court:	So can I take it that N’s anxiety here of expressing or having an embarrassment of two homes does not raise much of your concern?
SJE:	No.  In fact, even if the access were to continue the way it is now or previously, he would still have that concern.”

60.Having considered all evidence, I take the view that the children of this case are robust enough and emotionally strong to embrace a care arrangement with 2 homes. It is further my view that it is more likely than not that they will not be subject to any serious loyalty conflict and/or anxiety issue for the care arrangement that this court is going to put in place.

Caring ability/time of the mother

61.It is the father’s case that the mother is busy at work and is constantly away from home due to her job and personal commitment, so that the children do not get to see her even before their bedtime on most days.[3] The children told him that they were often put to bed by the helpers before and now by the maternal grandparents, as the mother will either return late or come back home before heading out again. Even if she is at home, she is either in her room or on her phone with minimal interaction with the children.[4] As a result,

(1) she spends limited time to supervise the homework of the children;

(2) she did not even have the time to realise that N had 2 cavities and to take him to the dentist;

(3) she is not able to take care of the children when they were sick. He quoted the fever and cough of AN in early 2014 as an example.

62.As the mother is busy at work, she leaves the main day-to-day care of the children to the maternal grandparents and/or maid(s) and/or driver. However, the father points out that the maternal grandfather is aged and does not have the requisite energy to shoulder children caring duties. He simply turns on the television for the children to watch, sits on the sofa and falls asleep. Further, there has been recent and frequent change of maids up to 7 maids within 18 months which will directly impact on the wellbeing of the children.

63.In response to the father’s allegation, the mother denies that she is very busy at work. On the contrary, since she runs her own clinic and meet patients by appointment, her working hours are flexible. She may have to work outside usual hours in case of emergency consultations/operations at government hospitals, but this happened only once or twice per month between 2013 and 2014.

64.While not disputing that there were several change of maids in her household in the last 2 years, she does not agree that she has delegated the daily care of the children to the maids. She maintains that she is the primary care-giver of the children. For example, she wakes them up each day at 5.30 am and takes them to school. The children have thrived and flourished under her care.

65.There is no need for me to go through each and every allegation of the father and the reply of the mother and/or the maternal grandfather’s evidence in this judgment. Suffice it is for me to say that I have considered all evidence and observe the demeanour of the witnesses while in the witness box, I am of the view that the mother is a caring and loving parent who has taken care of the children appropriately and sufficiently.  I do not believe that she has totally delegated the caring of the children to any third party, as alleged by the father, though I note that N has told the SWO in the 1^st SIR that the mother usually came home at around 7 pm.  Upon considering all evidence, I agree with Ms Tjia for the mother that the substance of the father’s allegation on this topic were not made out upon investigation by the SWO. Quite on the contrary, the SWO commented in the 1^st SIR that,

“34. …with the intent to spend more time with the children, it was highly appreciative that the [mother] resigned from her original gainful job and changed to be a private specialist so that she could work more flexible without night-shift duty and dedicate more effort to follow up [with] the children’s routine.

35.   [The mother] constantly demonstrated her dedication in taking care of the children and has given priority to them. Close bonding was observed between the mother and the three children”

66.It is further my view that had the mother really paid such little time and care to the children, the mother-children relationship would not have been, per observed and described by the SWO, as intimate, spontaneous and harmonious.

67.The maternal grandparents have moved in to live with the mother and the children since May 2015. The maternal grandfather is no doubt an aged gentleman. He is frank to admit in the witness box that he may not have the energy to run around with his grandchildren. But then, he is not alone in providing assistance to the mother in child-caring. He is also assisted by the maternal grandmother, the maid(s) (when the new maid(s) come(s)) and the driver. Besides, the children are now no longer at toddles and they already have a certain degree of self-care. I therefore cannot accept the father’s comment on the maternal grandparents in providing assistance to the mother in child-caring.

68.It may well be that the mother may have to work outside usual hours from time to time due to emergency calls from the hospital(s), but I do not think that it is fair of the father to make use of such scenario and jump to the hasty conclusion that the mother’s caring to the children is not hands-on or is not adequate. After all, he would not have wanted the mother to quit her professional job and be a full-time mother, leaving him to be mainly responsible for the financial provision of the children.

Communication between the parties

69.In this trial, there is an extensive cross examination of both parties on various emails covering a number of topics concerning the children. The mother uses these emails to show that there is a lack of communication and trust on the part of the father. On the other hand, the father uses the emails as proof that the mother adopts a double standard for herself and him on children’s matters and wants to be in charge so as to exclude him from the children’s lives.

70.For the purpose of this judgment, I do not propose to repeat verbatim each and every email written between them or each and every incident that was mentioned in the trial. Suffice it is for me to say that I have considered all of them. I will simply set out a few examples as illustration in the following:

(1) Swopping of 2014 Chinese New Year (CNY) and sharing of summer holidays

The mother wanted to take the children for a skiing holiday to Whistler, Canada in 2014 CNY. She wanted to swop the 2014 CNY holiday with the father who agreed but only to swop the 2014 CNY for the 2015 CNY. The mother consented to his request. However, when the father repeatedly asked the mother for reply to his request of equal sharing of the summer holidays (because AS was already promoted to the same international school as her elder siblings), the mother did not reply. Further, she failed to confirm an access arrangement until 6 hours beforehand (albeit the request was made about 2 weeks ago). The father thus became furious and withdrew his consent to swop the 2014 CNY.  This led to a chain of letters between their lawyers, but in the end, the swopping did go ahead as originally agreed.

(2)  Names-calling

Each party accused the other of bad-mouthing the other parent in front of the children. For example, the father alleged that the mother/maternal grandparents called him “bad man” and he tried to down-tone it and told the children they were referring to him as “batman”. The mother alleged that the father called her “joker” in front of the children. In the end, both agreed that any names-calling should stop.

(3)  Late to meet the father on 22/11/2014

The mother was supposed to take the children to see their father on 22/11/2014, but they were late for about 1.5 hours. Afterwards, the mother sent out an email to the father asking him not to blame the children and that they were too afraid to pick up his calls when they were on the way.  She further explained that N’s flight back to Hong Kong from a school camp was late the night before and thus he got up late in the morning of 22/11/2014. The father did not believe that the delay was caused by the children, but by the mother. In any event, he was discontented that she did not call him before starting off to inform him of their lateness but let him wait for 1.5 hours at school. 

(4)  Ice Skating Incident

See above para [51].

(5)  N’s birthday (1/2015)

The father organised a birthday party for N without first informing/discussing with the mother, knowing it well that it has always been her who is responsible for organising the children’s birthday parties over the years. As a result, the mother, after discussion with N, was forced to cancel the birthday party on her side.

(6)  Consultation with child psychologist, Dr. Poon (20/3/2015)

The mother took the children to see Dr Rachel Poon on 20 March 2015 allegedly on the issues of loyalty conflict and anxiety caused on them by their parents’ on-going conflict. The father was not informed of and came to know about it only from the children. He complained through his solicitors of the mother’s deliberate refusal to communicate and make unilateral decision concerning significant matters of the children without reference to him. In fact, he was sceptical that the mother consulted Dr Poon in order to get a better child psychologist expert report, because the consultation took place coincidentally after her legal team had told this court that she was not satisfied with the recommendation of the SJE and was thinking if to engage her own child psychologist.

(7)  Communication through N

The mother was not satisfied that the father returned important documents such as N’s ID card to her through N without first informing her. She also complained that the father handed over or posted children maintenance cheques to N, instead of giving the same to her direct. This problem is solved during trial when the father accepts the court’s suggestion to pay children maintenance into the mother’s designated bank account in the future.

(8) Saturday ECAs at LRC

The father would be out of town sometime in September 2015 and asked the mother to take the children to LRC for their Saturday ECAs that have been arranged by him. The mother asked for information including exact venue, class and teacher’s name. He replied that it was the sports hall of the LRC and provided the tutors’ surnames. The mother, however, would like more and fuller information. The father referred to the Ice Skating Incident and responded by describing the mother as “hypocritical” because when he asked for information, she asked him to “google” it, but when it was her turn to ask for information, he was required to provide exact and full details.

(9)  Telephone/facetime calls from the father

The mother complains that the father has been making numerous phone calls/facetime calls to the children during their daily routine, such as when they are doing their homework or about to take their bath. While talking to the father, the children would stop their daily routine, or refuse to listen to the instructions of the maternal grandparents. The father, on the other hand, accuses the mother of keeping the mobile phones away from the children in an attempt to blockade father-and-children communication.

The parties’ submission

71.Ms Tjia, counsel for the mother, submits that the parties’ track records of communication show that this is a high conflict case in which there is a lack of trust and communication between the parties years after their divorce, so that they were unable to make joint decisions for their children. They often have to pass it on to their lawyers for further communication.  Despite the stresses in dealing with the high hostility from the father, the mother keeps communicating with him for the sake of the children. However, almost every communication will come with unnecessary hostility from him, eg calling her a hypocrite in his emails.

72.Further, when the father becomes more hands-on with extended access after the 2 CDRs and despite his on-line training with co-parenting consultant (Ms Deena Stacer), his communication with the mother does not improve and he continues his false allegation against the mother in not taking good care of the children. The father purportedly relies in the trial a few recent emails in August and September 2015 on mid-term break arrangement and birthday invitations of the children to show that they can have effective communication. However, Ms Tjia tells that the court should be slow in accepting these recent emails as proof that the parties are able to communicate well. She says that the father never simply says “sure”, “no problem” to the mother’s suggestions in their years of past communication.  

73.Ms Tjia refers me to the case of Y v P, CACV 140/2009, unrep, date of judgment 14/8/2009, in which the Court of Appeal overturned a judgment for joint custody in respect of a 11-year-old girl and replaced it with a sole custody order in favour of the mother of that case, because the Court of Appeal was of the view that the parents were unable to co-operative since 2005.  Rogers VP (as he then was) cited the judgment of Rimsky Yuen SC, sitting as a Recorder, in ML v YJ, HCMC 13 of 2006 and stated at §§21-24:

“21. On this appeal the first matter which must be considered is the question of custody. In this respect, attention has been drawn to the decision in ML v YJ, HCMC 13 of 2006, a decision of Rimsky Yuen SC, sitting as a Recorder, given on 23 May 2007. The Recorder’s judgment usefully sets out the law relating to custody… The Recorder went on to state that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. The Recorder continued:

“(3)      A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children.  Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’s upbringing.  However, if it is clear that a joint custody is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties.  As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.”

22. …

23. It is quite clear from the judgment that the judge did appreciate that, at least at present and since 2005, the parties were not in a position to co-operate...

24.    The important point, nevertheless, is whether given the existence of the lack of co-operation between the parties it would be right to order there be joint custody.  The basis upon which the judge so ordered appears to have been what has been referred to as aspirational.  In other words it was an order made so as to encourage the parties to co-operate.  In my view that is more a matter of wishful thinking than a matter of practical reality.”

74.Ms Tjia says that although the cases of Y v P and ML v YJ are about custody, the same rationale should apply to the issue of care and control.  Since the parties are clearly and totally in lack of trust and communication, it remains a wishing thinking rather than a matter of practical reality to make a shared care order.  This is exactly the view taken by HH Judge Melloy in SMM v TWM, FCMC 11230/2008, in which the learnt judge rejected the proposal of a week on and a week off basis by the father of that case, as this arrangement would require “a great deal of co-operation between the parties” and that “this would need to be more extensive than the type of co-operation envisaged for joint custody”.  Her view was approved on appeal by the Court of Appeal in CACV 209/2009, unrep, date of judgment 9/6/2010.

75.On the other hand, Mrs Irving, counsel for for the father, says that the mother resists communication with the father to the extent that she will be obstructive. The mother wants to be “in control” and to impose her decisions on the father without consultation so as to exclude him and to diminish his role as a father. The Ice Skating Incident serves as a good example. She sees his involvement as interference in her domain because in one of her affirmations, she alleges the father of making use of his right as a joint custodian parent to make unreasonable demands or requests on care arrangement. In Mrs Irving’s words, the mother accepts no responsibility for communication difficulties between her and the father. Instead of trying to come up with a solution, she told the SJE that she preferred to keep communication down.

76.Mrs Irving also submits that the mother is guilty of double standard for herself and the father.  On one hand, she requires him to tell her the details of the ECAs organised by him, but on the other hand she herself refuses to provide the same amount of information to him. For example, she asked him to “google” for the telephone number of the ice skating ring of the Elements.

77.Given the mother’s attitude, Mrs Irving concludes that a week on/week off arrangement can help to ensure that the mother does not retain any “power”, and once there is no “power”, it is quite likely that she will find it easier to cooperate with the father. But if she retains control, the father will always find himself overborne by her.

78.Mrs Irving relies on the case of H v A [2005] 1 HKFLR 304. In that case, the father applied for joint custody of his 18-month’s old child born out of wedlock. In allowing his application, HH Judge Geiser had the following to say:

“24.   … Mr Firmin on behalf of the mother urges me not to make an order for joint custody as he says there is for whatever reason a lack of communication on the part of the mother. I have already stated that I have doubts about this, but even if I am wrong, the question must be asked “why will she not communicate?”. If it is simply a case that she chooses not to because she does not like the idea of the Applicant being the father of D, then this can surely never be accepted. Put another way, is it right for a party (in this case the mother) to stand in the way and deny the other party (in this case the father) fundamental rights over his child simply asserting that she cannot, or possibly chooses not to speak to him? The answer to this must be no.

25. Of course, a natural element of joint custody involves co-operation, but the mother cannot be allowed to say simply that she is unable to co-operate and thereby have the court endorse her rights to sole custody. In my view, she must be encouraged to co-operate and this can be done quite properly by way of a joint custody order…”

My view on the communication/trust problem

79.Without doubt, it is a usual phenomenon that separated parents, distressed by the breakdown of their relationship, will face some kind of communication and/or trust problems of varying degrees and the parents of this case are of no exception.  As such, the sole and mere allegation of difficulty in communication is not by itself sufficient to persuade the court in not granting a shared care arrangement if it is in the best interest of the children. This is in particularly so when a joint custody order has already been put in place by consent pursuant to the 1^st Consent Order.  A joint custody order, no one would dispute, envisages that the parties should and would communicate and discuss on the important matters pertaining to their children.

80.Besides, the case law is clear that any order about children should be “aspirational” and “look to the future”. The court is entitled to assume that loving parents, like the parties of this case, are capable of acting rationally in making decisions for the best interest of their children. In the oft-quoted judgment of Hartmann JA (as he then was) in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, the learnt justice has the following to say:

“Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.” (emphasis added)

81.For reasons set out in paras [40] and [41] above, I do not accept Ms Tjia’s submission that an order akin to a sole custody order was recommended by the social investigation officer or granted in favour of the mother.

82.It is my further view that even if (just assuming) an order akin to a sole custody order was granted to the mother,  I am not persuaded by her purported explanation for taking the children to see a child psychologist, Dr Poon.  More importantly, I cannot find myself approved of her decision not to inform and discuss with the father beforehand of such consultation. This is without doubt a matter of importance in relation to the children.  I am of the view that some form of shared care arrangement should be put in place as “check and balance” measures.

83.I have not lost sight of Ms Tjia’s submission that the father’s complaint as to the caring ability/time of the mother, though not accepted by this court, shows his lack of trust on the mother. On my part, I do not tend to magnify that to the extent of a trust issue. Rather, I see it as the father’s improper attempt to impose his house rules or parenting style into the mother’s household. This must be stopped.   

84.At this juncture, I would also invite parties to read the other parts of the judgment in PD v KWW (supra) in the hope to clear any misunderstanding that either of them may have on the concepts of sole/joint custody, care and control.  In the judgment, His Lordship gave a detailed and very useful discussion on the dual concepts of joint custody, care and control like this:

“ 28. As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’. Neither concept, however, is defined in our statute books.

29. Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.” (emphasis added)

85.His Lordship then went on to point out, in no uncertain terms, the misunderstanding commonly exists between disputing parents of the two concepts, which I strongly urge the parties to read and digest with great care:

“33. We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing. The present case is a prime example.

34. The mother seeks sole custody because, to use her words, she wants to leave behind the conflict that has marked her relationship with the father since the breakdown of the marriage and wants to be left in peace to be able to raise the child as she thinks best, that is, to be able to determine such matters as the child’s education, religious upbringing and choice of activities free of any disturbance from the father. She is happy to let the child spend time with the father and is happy to keep the father informed of matters relevant to the child’s well being but she wishes to reserve absolutely to herself the manner of her child’s upbringing.

35. Equally, the father fears being deprived of joint custody because it is his view that society will perceive that he has thereby forfeited the rights and responsibilities of a father, being left only with the residual right to spend time with his daughter and the residual responsibility of making a financial contribution to the cost of her upbringing.

36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion.  This is a misunderstanding.  Neither parent has any pre-emptive right over the other.  If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

37. In the same case, Cumming-Bruce LJ, another experienced family judge, said:

“…. it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent.  That is quite wrong.  The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters.  If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.” 

38. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter.

40. Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown o f the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration. In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason it is often said that there is a thin line between sole custody and joint custody.” (emphasis added)

86.I also invite both parties to read the above words of wisdom of His Lordship side by side with those several important terms that they have consented/agreed to put in place in the 1^st Consent Order but might have been overlooked/forgotten by them over the years:

(1) That the agreement was in regard with the future co-parenting of their children (recital A of the 1^st Consent Order);

(2) That they would continue to be actively involved in the children’s lives (recital D (b) of the 1^st Consent Order);

(3) That they would use their best endeavours to create respect for each other and for their roles as parents (recital D (e) of the 1^st Consent Order);

(4) That they shall each be entitled to attend school functions, receive school reports, notices and other communications from school(s), and that each shall be free to make contact with the children’s teachers and other persons relevant to the children’s education so long as they keep the other parent informed of such communications (recital E of the 1^st Consent Order). 

87.The above basic principles, as they are described in the 1^st Consent Order, must have been agreed by both parties after deep thought and consideration during the year-long mediation process and must be, in their own view as loving and caring parents, concluded there and then in the best interest of their children.  I cannot help wondering that had they borne these basic principles in mind at all material times, many of the accusations and miscommunication evidenced from their emails that we have gone through in this trial could have been handled in a much better way, if not avoided. 

88.On the other hand, I have read and re-read the emails between the parties. I think no one would seriously dispute that there is communication problem between them. Each is finger-pointing the other for the cause of lack of communication and trust. The mother says that these emails show the antagonistic and hostile attitude of the father to her and the complete lack of trust of him on her. On the other hand, the father views the emails as proof that the mother adopts a double standard on children’s matters and wants to be in control of the children’s lives to exclude him and to diminish his role as a father.  But the point is no matter what caused the breakdown in communication, either or both of them was/were able to stop the exchange of strong words in the end. As a result, except for the ice skating of the daughters that was not able to go as planned by the mother on a wednesday, they were able to reach agreement at the end of the day.

89.I understand that both parents say that the agreement was often made as a result of his/her giving-in. However, I see nothing that should be complained of out of this by either of them. In my view, it takes time, though sometimes in a painstaking manner, for separated parents to re-build their trust and to fine-tune their communication manner that work best for this particular family.  There should be compromise and give and take when disagreements arise, not for the sake of the other parent, but for the sake of their children.

90.It needs to be pointed out that even though there is communication problem between the parties as described in their respective affirmations, I agree with the SJE that this family is of the lower end of a high conflict case. The parents can basically keep their disputes, mainly confined to written form, between themselves. There is no physical abuse/dispute or calling of police assistance in hand-over, which are very often prominent in high conflict custody matters. In fact, as revealed from the investigation of the SWO, the parties are capable of showing respect and demonstrated professionalism in front of a third party. Here is what the class master of N told the SWO in the 1^st SIR:

“31. …N’s parents were active participants of their school community. They demonstrated professionalism and mutual respect towards one another when each other presented. Both of them chose to attend N’s parent-teacher interview together and they were very friendly at all times.” (emphasis ended)

91.In my opinion and observation, the parents are both highly educated and intelligent professionals. If they have the will, they certainly have the ability to communicate, and to communicate well and effectively for the sake of their children. 

92.In addition, despite the rather finger-pointing tone in the closing submission of their respective counsel on the issue of communication, I am glad to notice that both parties are able to acknowledge during the trial that there is room for improvement in their way/manner of communication. The mother agrees that she should have, on hindsight, informed the father before she enrolled the daughters for ice skating on a wednesday. The father admits that there can be improvement in the tone of his emails to the mother, in that he should have avoided personal comment and kept the emails factual and simple.  I would record that the father goes so far as to say in his evidence that he is prepared to let a third party approve his emails before sending them out to the mother, in order to make sure that they are factual and non-accusatory. In my view, such acknowledgment of the respective parties is a good indicator that they are willing to move forward in improving their way/manner of communication.

93.One of the main concerns of the mother for shared care and control is about the arrangement of the ECAs. The father has told me that he has no problem with the ECAs now in place, no matter whether those arranged by the mother or by him. Both parents have agreed in their oral evidence that a joint parenting co-ordinator be engaged to help them how to work out the future arrangement of ECAs and in case of deadlock, the parenting co-ordinator can make a final decision for them. In my view, this is another good indicator that both parties are able to co-operate and move on. 

94.I therefore conclude that looking at the totality of all evidence, it is not a wishing thinking that the parties have the ability to communicate and cooperate for the best interest of their children.

What should be the care arrangement?

95.There is no doubt in this case that the children maintain a very close and loving relationship with both parents. I am particularly impressed by the father’s close bonding with the children despite the relatively limited access time available to him under the 1^st and 2^nd Consent Orders. His access to the children has been gradually extended by me since the 2 CDRs. No adverse effect on the psychology of the children can be noted. They have fully embraced the fact that they have 2 homes with different styles in parenting of their parents.

96.There is also no doubt in my mind that the children truly and strongly wish to see their father more and not only during weekends, though it is noted that there is not a uniform view among the children as to the duration of each block of time they should spend with each parent.

97.The SWO recommends a week on/week off shared care arrangement. The SJE opines that the children are robust enough to cope with this arrangement. These are the opinion that this court needs to consider, but is not bound to follow. I take the view that if a one-week-on/one-week-off pattern is installed at this stage,  that means that the children will spend a week at a time away from the other parent, which especially for small child (ie AS) can be a long time. This suggestion has also overlooked the fact that the mother has been AS’s main carer since the separation, at which time AS was only less than 1 year old. In my opinion, a week on/week off arrangement is too radical and extensive a change for the young AS.

98.Besides, the week on/week off arrangement fails to address to the father’s own alleged concern of the need to assist the children in their study, in that he would not be seeing and helping them in their homework during the whole week of the mother’s week.

99.Upon considering all the circumstances of the case and upon balancing all factors, I come to the conclusion that in the best interest of the children, they should be staying with their father from each thursday to saturday during school term, with the rest of the week with their mother. Such an arrangement would allow the children to see each parent for a block of time within a week during which they would be subjecting to one parenting style only. This arrangement would also minimise the number of hang-over and significantly cut down the travelling to and fro under the current access arrangement. The parents can also spend time with the children during both the weekdays and the weekends/Sundays, albeit not a full weekend. 

Sharing of the summer holidays

100.The topic of how the summer holiday should be shared as a way forward is strictly speaking not mentioned in the father’s application. However, the parties somehow mention the topic during this trial. The mother agrees in principle to equally share the summer holidays with the father on the condition that the last week of the summer holidays is carved out and not be counted for sharing. She says that the last week should be reserved for her to prepare the children for the new school term. The father would wish summer holidays be shared equally but agree that the last week would always belong to the mother.

101.I note that the other long holidays are already shared equally between the parents. I also note that the mother herself confesses that she is usually busy during the summer holiday. And if the father can make himself available for the children, one would ask why he should not be given an equal amount of time during the summer to spend with them. Therefore, by way of an indication, I cannot see, at least at the present stage, why the summer holiday should not be shared equally between the parties, with the last week always belong to the mother.

Conclusion

102.Due to the matters set out above, I now make a shared care and control arrangement of the children of this family which shall take effect immediately after the Easter holiday of 2016 as follows:

(1)   The children shall stay with the father from thursday after school until 8.30 pm of saturday of the same week.

(2)   The children shall stay with the mother with the remaining time of the week.

(3)   The father shall be responsible for picking up the children at their school on thursday and returning them to the mother’s place on saturday at 8.30 pm punctually.

(4)   A fixed daily telephone or Facetime or Skype access to the children with the other parent not staying with the children between 7.30 – 8.30 pm for not more than 30 minutes in total. Both parents shall set up a private corner or arrange a bedroom for the children to talk to the other parent in private. Neither party shall call the children outside the fixed time unless agreed the otherwise.

(5)   No new ECAs shall be put into the other parent’s time slot unless with prior consultation and consent of that parent, save and except that those existing ECAs already put in place by the mother during the father’s time slots may continue PROVDIED that the mother shall inform and consult the father of any purported change in the time schedule.  The father shall continue to take and collect the children to/from the ECAs venue(s) during his time slots.

(6)   Both parties may respond to school invitations where individual response is available, provided that such response shall always be copied to the other parent at the same time if possible and in any event, within an hour.

(7)   Where only single response to school notices is allowed, the mother shall be the primary responder upon consultation with the father and her response shall always be copied to him at the same time if possible and in any event, within an hour.

(8)   The mother shall be the parent responsible to book for the parent-teacher conferences (PTC) while the father shall be responsible for booking the student-led conferences (SLC). They shall agree on not more than three (3) preferable time slot(s) to be chosen for PTC and SLC way forward and report to this court by way of a joint letter (duly signed by both parties) within the next 28 days. Thereafter, each shall book the said PTC or SLC (as the case may be) by picking only one of those 3 time slots unless otherwise agreed. Confirmation of booking from school should be copied to the other parent within an hour of receipt of the confirmation.

(9)   Unless otherwise agreed between the parties, the birthday parties of the children in even numbered years (such as 2016) shall be organised by the mother, while those in odd numbered years (such as 2017) shall be organised by the father.

(10)   Unless otherwise agreed between the parties, birthday parties/sleep-over invitations to the children only shall be passed onto (by providing date and venue, name and contact details of host) and/or replied by the parent who has the care of the children on the day of that function; birthday parties/sleep-over invitations to the children and parent together shall be replied by the parent who receives the invitation.

(11)   Unless otherwise agreed between the parties, the mother shall be responsible for the children’s paediatric check-ups, while the father for their dental check-ups. All medical/dental appointments (including doctors’ names/address/appointment time) shall be recorded in the online calendar and results of the consultations shall be shared within 24 hours.

(12)   The father shall arrange for a zipper bag/storage box for the purpose of storing important items that may be required when changing homes, such as the children’s ID cards or medicine to be taken. Both parties shall make sure that the zipper bag/storage box will be put among the children’s belongings when changing homes.

(13)   The father will prepare a separate set of school uniforms and ECAs uniforms/clothing for the children.

(14)   The parties shall continue to make use of the online calendar to record/share the activities/information of the children. Until a built-in function to record changes of the information at the online calendar is possible, each shall alert the other parent of any update/amendment to the online calendar forthwith.

(15)   A progress report be prepared by the social investigation officer which shall be ready by 15 October 2016.

(16)   All interim access orders made by this court since the father’s summons shall be discharged when this shared care arrangement takes effect.

103.The parties are directed to engage a joint parenting co-ordinator to be recommended by the SJE. Parties should write a joint letter to the SJE to request for her recommendation within 21 days from the date of this judgment and thereafter lodge a joint letter with this court on the chosen joint parenting co-ordinator within 42 days from today.

104.I will also hold the parties to their undertaking:

(1) not to bad-mouth each other and/or the grandparents in front of the children;

(2) not to engage in unnecessary criticism and blame in their correspondences;

(3) that in case of disagreement of any new ECAs to be arranged, they shall resort to the parenting co-ordinator whose advice would be final and binding on them.

105.A penal notice shall be endorsed. Personal service of this court order shall be dispensed with. The order will be drawn up by the father. It should also contain a recital that the 1^st and 2^nd Consent Orders were made, which should also be annexed to this new order for easy future reference.

106.I expect the respective legal representatives would explain to the parents of the full effect of a penal notice, including the serious consequences of breaching an undertaking given to or an order made by this court, in that a party may be liable for contempt resulting in immediate imprisonment.

107.Given that this is a child related matter and neither proposal of the parents are accepted by this court, I shall make an order nisi that there shall be no order as to costs including all reserved costs, to be made absolute at the expiration of 14 days.  There shall be certificate for counsel.

Ms Josephine Tjia instructed by Messrs Tang, Lai & Leung for the petitioner (mother)

Ms Frances Irving instructed by Messrs Ip & Heathfield for the respondent (father)

[1] The closing submission of the mother (§47) described this information was given by AN to the SJE, but in fact it was provided by the mother (not AN) to the SJE (See “Parents’ views on AN” on p5 of the SJE report at [P1/329]).

[2] See letter from the mother’s lawyer dated 30 March 2015 [P2/498].

[3] Father’s 3^rd affirmation [P1/8/§13]

[4] Father’s 6^th affirmation [P2/627/§29].