N v. W
Read the full judgment text of FCMC 5026/2015 on BabelCite. This Family Court judgment was delivered on 28 April 2017 before Her Honour Judge Sharon D. Melloy.
Guardianship of Minors Ordinance (Cap 13) s.3 – Matrimonial Causes – Child Custody – Shared Care – Best Interests of the Child – Holiday Arrangements – Interim Order – No Order as to Costs – The parties married in 2002 and separated in 2015, with two children S (aged 11) and C (aged 9). The mother currently has the children for 9 nights per fortnight, while the father seeks a 50:50 split. There is high conflict litigation regarding finances, and the mother's brother has been joined to the proceedings. Both parents are considered good and loving, but the father's hostility towards the mother is a concern. The court considered the children's wishes and expert recommendations. The court ordered an interim order for joint custody to be reviewed in 18 months. The court ordered shared care on a 2/2/5/5 basis during term time. School holidays shall be divided on a 50:50 basis. An updated Social Investigation Report and a report from Ms G shall be called for in 18 months. There shall be no order as to costs. The parties are directed to adopt and follow the recommendations made by Dr B.
Legal issues: Care split arrangement · Custody type · Holiday arrangements
Outcome: Interim joint custody granted; shared care 2/2/5/5; holidays split 50:50; no costs.
Cites 2 cases
|
FCMC 5026/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5026 OF 2015 ----------------------------
---------------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Dates of Hearing: 7 – 10 March 2017 Date of written closing submissions: 27 March 2017 Date of written replies: 10 April 2017 Date of Judgment: 28 April 2017 ---------------------------- J U D G M E N T (Sole/joint custody, appropriate split ---------------------------- Introduction 1.This trial was set down to determine the longer term arrangements for the two children of the family, S, a girl who is now aged 11 having been born on the XX August 2005 and C, her brother who was born on the XX November 2007 and is now aged 9. 2.In essence the Petitioner mother wishes to have an order for sole custody and shared care of the children, on a 9/5 arrangement as at present. The father for his part seeks an order for joint custody and shared care, with the children splitting their time between the two households on a strict 50:50 basis. Although he initially proposed a week on/week off arrangement, he subsequently suggested a 2/2/5/5 split of time. There is also some disagreement over the arrangements for the school holidays although the parties do agree that the holidays should be split on a more or less 50:50 basis. However, they disagree over arrangements for the summer/Autumn mid term holiday and the Christmas holidays. Background 3.The parties met in Hong Kong on New Year’s Eve 1999 and married on the XX November 2002. The wife is Danish and the husband is from the United Kingdom. They separated on the 28 April 2015 when the husband moved out of the former matrimonial home and initially at least the parties were able to conduct themselves appropriately and sensible interim arrangements were reached with respect to the children through mediation. 4.Unfortunately, this case has been marred by very aggressive and protracted litigation concerning the parties’ finances and the wife’s brother has now been joined to the proceedings. There will be a preliminary issues hearing but in the meantime the parties are locked into a situation which is extremely conflicted and which effects their ability to effectively co parent the children. The father remains convinced that the mother has cheated him out of significant sums of money and that she is responsible ultimately for the breakdown of the marriage. The mother for her part reiterated several times during the trial that she is not wealthy, although her brother is and that the father is wrong in what he says. In the meantime, the mother is not working and has not done so since April 2016. She previously worked for or with her brother, depending on which version of events is to be believed. The father for his part has a share in a small consulting company. The issues 5.On the face of it then there are three main issues to be determined namely: Should the care of the children be split on a 9/5 basis as at present or on a 2/2/5/5 basis as proposed by the father? Should there be an order for joint custody or sole custody? What should be the arrangements for the summer/Autumn half term holidays and the Christmas holiday? 6.Since the hearing the parties have agreed that Ms G should be appointed as a parental co coordinator. This is to be encouraged given that the parties are going to need to be able to discuss some matters relating to the children on an ongoing basis regardless of the formal orders in place for custody etc. I appreciate the fact that the mother does not necessarily believe that this will help, but in any event I will expect a parental co ordinator to be in place until this matter comes back before the court in about 18 months’ time. I will also ask Ms G (or her replacement) to provide the court with a short report at that time. 7.Further S has been offered a place at the X International School, which was her preference. That offer has been very sensibly accepted by both of the parents. It is not clear however, how the school fees are going to be funded. C will continue to attend The International Y School. It is anticipated that he will also attend the X International School in due course. The law 8.The law governing applications concerning the arrangements for children can be found in section 3 Guardianship of Minors Ordinance, Cap 13, which states as follows:- GENERAL PRINCIPLES
9.Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdictions, there are a number of factors, which generally speaking need to be taken into account or considered, when determining issues relating to children. Ms Rattigan for the father has referred me to them in her written opening and for ease of reference I have listed them below. Some of these mirror the checklist to be found in the English Children Act 1989. I should say at the outset that this list is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control, access and shared care and the welfare of children of generally. The checklist states that the following should be considered:
I will refer to this checklist when discussing the issues below. In particular, I accept that in the context of this particular case paragraphs a, b, c, e, f, g and i are of particular relevance. 10.Understandably perhaps in the circumstances, Ms Rattigan also made the following points in her opening submission:
I agree. 11.Conversely Mr Egerton for the mother referred to the recent Court of Appeal decision in England and Wales – In the matter of M (A Child) [2014] EWCA Civ 1755, where it was stated as follows:
12.I accept that as in the United Kingdom, it is infact quite rare in Hong Kong for there to be an order for a 50:50 shared care regime and for that to be imposed by a court following a trial. However, it does on occasion happen. It is also possible for the court to make other orders, such as an order for sole custody and shared care, where the circumstances demand it. 13.In this instance it is of note that the parties have now agreed to an order for shared care, presumably because they recognise that, theoretically at least, it is important for each parent to continue to be actively involved in their children’s day to day lives going forward, notwithstanding the almost toxic level of anger and mistrust that exists between them. Discussion 14.I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the social welfare officer – Ms L and the psychologist Dr B who helpfully provided the court with a Child Custody Evaluation report dated the 21 February 2017. Each party’s open proposals The mother 15.The mother’s open proposals run to some 11 pages – so I will not reproduce the same here, but in essence they have been summarized by her counsel as follows:
16.Her updated proposal with respect to the holidays was attached to her counsel’s closing as follows and takes into account the fact that the children will now have slightly different holidays following S’s change of school in August:
The father 17.The father’s open proposals are as follows:
The experts The Social Welfare officer’s reports 18.There have been two reports filed, the first dated the 1 March 2016 and the second updated report dated the 27 February 2017. It is of note that in this instance there are two reports, with almost identical facts but slightly different conclusions, from two different social workers. I have some sympathy with them. This is a difficult case and neither set of recommendations can be said to be clearly wrong. 1st Social Welfare Report dated the 1 March 2016 19.The first Social Welfare Officer, Miss T recommended joint custody and maintaining the present 9/5 structure. She explained this thus:
20.She also recommended that the parties consider returning to mediation and that psychological support be provided for the children. I should add that the children are currently receiving therapy on a weekly basis. It is agreed that this should continue. 2nd Social Welfare Report dated the 27 February 2017 21.Ms L also recommended joint custody of the children, notwithstanding the very high level of ongoing conflict between the parents:
22.However Ms L differed from Ms T in that she recommended that the children’s time be split 50:50. Her reasons for this are set out as follows:
The Child Custody Evaluation Report dated the 21 February 2017 23.Dr B and her team filed a very helpful and sobering report at short notice. Although there had been some misunderstanding about some of underlying facts (i.e. that the parties currently had joint custody and joint care and control) there can be no doubt at all that this report was extremely helpful, given that it identified the extent to which the children are currently at risk. 24.In summary Dr B’s report says this of S:
25.And this of C:
26.In line with the children’s stated preference Dr B recommended that the parents have equal time. She also made a number of very sensible recommendations, which lie outside the perimeters of this court to implement, but which I have attached to this judgment at Annex A. It is strongly recommended that the parties adopt these recommendations. The father has already proposed this in his submissions. I agree that this would be sensible and I am hopeful that the mother will likewise agree to implement them as best she can. The character of the parties The mother 27.In court the mother presented as being someone who was under an enormous amount of pressure. She described very clearly the very aggressive and negative way in which the father interacts with her. She was also clearly distressed when she acknowledged the effect that the conflict was having on the children. It was of note that she tried to reach out to the father on several occasions and that she used the court process in order to try to do this. It is clear that she loves her children very much. I have no doubt at all that she is a very good mother. The father 28.Similarly, I have no doubt that the Respondent is also a very good father and that he loves his children dearly. I was though very concerned by some of his behaviours and the way in which he sought to justify them. For example, he obviously felt justified in the way that he behaved towards the mother. It was clear that he was unable to be courteous or polite towards her – even for the children’s sake. To state the blindingly obvious it is not acceptable to not greet the mother either directly or by e-mail or to be openly hostile towards her. For the avoidance of doubt this is not helpful and cannot assist. If the parties wish to co parent their children successfully then at a most basic level, this sort of behaviour has to stop. It is hardly surprising that the mother finds it hard to communicate with the father when faced with such a barrage of unkindness and open hostility. The father appeared to have little insight into the effect that his behaviour was having on the mother and on the situation as a whole. This was a matter of some considerable concern. Should the care of the children be split on a 9/5 basis as at present or on a 2/2/5/5 basis as proposed by the father? 29.At present the children are with their father for five nights per fortnight and with their mother for the remaining nine nights as set out below. This means that the children spend every Monday and Tuesday with their mother and every Thursday with their father and alternate weekends with each parent. The mother wishes this arrangement to continue.
30.Although the father originally proposed a week on/week off regime he later amended this, in line with the recommendations made by Dr B to a 2/2//5/5 split as follows:
This would mean that the children will continue to spend every Monday and Tuesday with the mother and that they also continue to alternate weekends. The only difference is that they would also spend every Wednesday AND Thursday with their father – an actual difference of one night per week. 31.Both Dr B and Ms L fully supported this proposal. It is also said to be in line with what the children want. Apparently they currently perceive this to be fair and I accept that rightly or wrongly this is an important consideration, and one that the court is duty bound to take into account. Consequently, notwithstanding the fact that a 50:50 split is generally speaking not considered to be a sensible outcome where the levels of conflict are very high, as here, I will nevertheless make an order for a 50:50 split of time. I should also add that I did ask the father what his approach would be, if for example, in a few years time, S in particular asked to spend more time with her mother. He said that in that event he would not stand in S’s way. I think that this is important to note. 32.Rather late in the day the mother also proposed, as an alternative, that her original 9/5 structure remain with the caveat that each parent have one child with them on a Monday, so that each child could benefit from some one on one time with each of their parents. 33.Although I can see some sense in this, overall I am not persuaded that tinkering with the present 9/5 arrangement is going to particularly assist. Consequently, I will make an order that on a shared care basis the children’s time be split between their parents on a 2/2/5/5 rota. Should there be an order for joint custody or sole custody? 34.This is a little more difficult to determine. The mother originally proposed that there should be an order for joint custody as can be seen from the prayer in her petition. But as things have progressed she has sadly come to the conclusion that joint custody is simply not feasible given the way in which the father interacts with her. Having seen both parties in the witness box I have some sympathy with her in this. 35.Ms Rattigan says that the mother’s approach is borne out of a misconception about the definitions of sole and joint custody. In her closing submission she puts it thus:
36.Although what Ms Rattigan says here is true – it is also true that if the mother had sole custody then she would be able to make decisions without the father’s express consent, but following consultation with him. If the father disagreed with any decision made by her then it would be open to him to issue the appropriate application at court in order to challenge that decision. I should add that it is never sensible or indeed cost effective to return to court on a regular basis with respect to such decision making. 37.I should add that I do not accept that the mother has deliberately set out to exclude the father from the children’s lives and indeed even if that had been the case it will not now be possible with a 50:50 split of time in any event. 38.I am though particularly concerned about the father’s lack of involvement with choosing a school for S and how he seemed happy for the mother to do all the leg work and to take all of the financial responsibility – when in truth this was an active decision to be taken by both parents. The father does not simply have a right of veto, as with the offer of a place at Z School – if he wants joint custody he has to actively be part of the decision making process. He also has to be financially responsible for any of the decisions made – regardless of the outcome of the preliminary issue hearing. I am also concerned about the father’s reaction to little things including for example the situation which arose when S had to have two teeth removed at short notice. It is suggested that the father’s reaction is understandable given the mother’s behaviour in the past. For the record I do not accept this. 39.Consequently, I have decided to make a rather unusual order – given the recommendations made by both social welfare officers and Dr B, I will make an interim order for joint custody to be reviewed in 18 months’ time and after the conclusion of the preliminary issues trial. I had considered making an order for sole custody but accept that longer term it would be in everyone’s best interests if this could be avoided. I will expect both parties to use this interim order as a starting point for any future decision making and genuine cooperation, when it comes to their children. I will expect both parties to be civil to each other on the very rare occasions that they will have to have direct contact. They should also be civil when using the wizard soft ware and when liaising with Ms G. The welfare of their children quite literally depends on it. What should be the arrangements for the summer/Autumn half term holidays and the Christmas holiday? The summer holidays 40.As set out above the mother’s position initially was that she should have the first five weeks of the school summer holiday so that she could take the children to Denmark for five weeks, in order that S and ultimately C could participate in summer camp with a view to learning Danish etc. and to then have a summer holiday with her family. Ultimately the mother wants the children to be able to avail themselves of the benefits of being Danish including affordable tertiary education. This seems sensible in the circumstances. In lieu of the extra week she suggested that the father have the children for every Autumn half term. The father disagreed and suggested instead that both the school summer holiday and half term be split 50:50. 41.However, things have now shifted a little given that S will start the X International School in August and consequently the mother has revised her position as set out in paragraph 16 above. 42.In view of that I will make an order that the current summer school holiday that the children have in common will be split 50:50 with the mother having the first half and the father having the second half as suggested by the mother. For the avoidance of doubt this will mean that this year the mother will have the children from the 30 June – 20 July and the father will have the children from the 21 July – 9 August. Further it is directed that once both children start attending the X International School and they have the same summer school holiday that the mother may then have the children for an additional week – so that they may both attend summer school in Denmark. It is unclear whether in practice this will mean that the mother will have the children for five weeks – or for a longer or shorter period. It is of note that this year the X School broke up on the 8 June and the children will return to school on the 10 August i.e. a period of approximately 9 weeks. In that event the mother would have the children for the first five weeks and the father would have them for the remaining four and the father will also have the children for every Autumn half term break. Until then though the school summer holiday will be split 50:50 and the Autumn half term will be alternated with the mother having the children in all odd years and the father having the children in all even years. The term time routine of 2/2/5/5 will commence once S starts school on the 10 August. Christmas school holiday 43.The father’s proposal is set out in paragraph 17(6) above. With respect it seems to me that this is likely to cause a great deal of unnecessary stress to everyone involved. Going forward I will make an order in the terms suggested by the mother i.e. by alternating the first and second half of the holiday with the father having the first half in all odd years starting this year in 2017 and the second half in all even years and the mother conversely having the first half in all even years and the second half in all odd years. The remaining holidays 44.These do not appear to be in dispute but for the avoidance of doubt the Chinese New Year and Easter holidays shall be alternated with the Mother spending Easter with the children in all odd years and Chinese New Year with the children in all even years and conversely the father spending Easter with the children in all even years and Chinese New Year in all odd years. The checklist 45.In so far as the check list is concerned the following is of particular note: (a) The ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding; 46.It is clear that the children both wish their time to be split equally between their parents. Indeed, S asked Dr B to tell me that directly in court. Although their views are not determinative I accept that they should be given significant weight. (b) The child’s physical, emotional and educational needs; 47.I accept that the children’s physical, emotional and educational needs can be met by both parents. However, in order for this to be optimal both parties should follow and adopt the recommendations made in Dr B’s report. (c) The nature of the relationship of the child with each of the child’s parents and with other persons; 48.I accept that both children have a close relationship with each of their parents and that this should be supported by this order. It is of note that they both like the father’s new partner and that she appears to be a positive aspect of the current situation. (d) The likely effect on the child of any change in the child’s circumstances; 49.I agree that the addition of one overnight per week to the children’s present schedule is likely to have little practical effect on their day to day life, save that they are likely to perceive that this is a “fair” outcome in all of the circumstances of the case and that as such it is likely to have a better chance of success. (e) The child’s age, maturity sex, social and cultural background and any other characteristics 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 50.I accept that notwithstanding the relationship between the parents themselves, that each are good and loving parents who ultimately only want what is best for their children. As indicated above I do have some concerns about the father’s approach for example to choosing a school for S. (g) Any harm which the child has suffered or is at risk of suffering; 51.It is now clear that both children are suffering as a result of the present situation and that change is necessary if the potential risk of the ongoing litigation is to be minimized. Again I refer the parents to Dr B’s recommendations in that respect. (h) Any family violence involving the child or a member of the child’s family; (i) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; 52.I accept that both parents are capable of meeting the children’s needs, although as I have said finances are a matter of some considerable concern especially in the short term. (j) (a broader formulation along the lines of) 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 a regular basis; (k) The range of powers available to the court under this Ordinance in the proceedings in question; (l) Any other fact or circumstance that the court thinks is relevant. Costs 53.Although this is a very high conflict case there is nothing here which takes it out of the realms of the ordinary in so far as costs are concerned. Consequently, I will make an order nisi to be made absolute in 14 days’ time that there be no order as to costs. There shall be certificate for both counsel and I thank them for their assistance in this matter. Order 54.Consequently I shall make an order as follows:
IT IS FURTHER DIRECTED that the parties adopt and follow the recommendations made by Dr B as set out in Annex A attached hereto. In particular, it is directed that C have a full psychoeducational assessment and that a copy of that be filed at court within the next 6 months.
Mr Robin Egerton instructed by Robertsons for the Petitioner mother Ms Mairead Rattigan instructed by Withers for the Respondent father
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 5026/2015