Sty v. Lmsc

FCMC 5382/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5382 OF 2015

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J U D G M E N T
(Decision)

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Introduction

1.The petitioner mother (“the mother”) filed a summons on 18 October 2016, for variation of access and other directions against the respondent father (“the father”) of their children of the family who are now aged 8 and 6 respectively (“the children”).

2.I was given to understand the disputes have been boiled down to four issues, to name them, being (i) the Chinese New Year arrangement, (ii) the Easter arrangement, (iii) appointment of parental coordinator; and (iv) the respondent’s attendance of the children’s extra-curricular activities.

3.At the hearing, the parties agreed both the arrangement of the father’s attendance of the children’s extra-curricular activities and the appointment of a parental coordinator. The issues that I have to decide are only the Chinese New Year arrangement and the Easter arrangement.

Background

4.The mother filed a divorce petition on 5 May 2015, with decree absolute pronounced on 24 September 2015. The parties reached comprehensive settlement on children arrangement and was so ordered in the order dated 10 September 2015, inter alia, both the mother and the father were granted joint custody, care and control and shared care and supervision of the two children (“the Children’s Order”).

5.It was expressly agreed, the 1^st half and 2^nd half of the Chinese New Year holidays are to be shared on an alternating basis. Without regard who has the staying access of that particular year, in every year, the mother shall have the children until 7 pm on Chinese New Year eve and the children shall be with the father from 7 pm until after lunch on the 2^nd day of the Chinese New Year, the children can then be with the mother thereafter.

6.The Easter holidays were to be shared equally. The mother shall have the 1^st half of the Easter holidays whereas the father will have the 2^nd half of it in one year and then the mother shall have the 2^nd half of it and the father shall have the 1^st half of it in another year. It is also agreed the children shall attend Easter mass if they were within the jurisdiction. 

The mother’s application

7.Apparently, the mother was not contended with the existing arrangement. She filed another summons on 16 August 2017 to vary the Children’s Order to one of sole custody, care and control. The said summons shall be dealt with after the determination of the present summons.

8.Ms Irving, counsel for the mother submitted, the main problem of the existing arrangement arose from the transfer of the children between two families.

9.For the Chinese New Year holidays, the mother says it should be a block of days instead of dividing it into two halves. The benefit would be free from handing over the children between Chinese New Year eve and the 2^nd day of Chinese New Year.

10.For the Easter holidays, the mother says for the one who has the entire block of Chinese New Year holidays, he or she would not have the festival days (ie the public holidays) during the Easter break.

The father’s respond

11.The father did not agree to the mother’s proposal. He insisted on the arrangement parties agreed in the Children’s Order.

The legal principles

12.The applicable principles are those contained in section 3(1) of the Guardianship of Minors Ordinance, Cap 13. I also take into account the welfare checklist:

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

(b) the child’s physical, emotional and education needs;

(c) the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) the likely effect on the child of any changes in the child’s circumstances;

(e) the child’s age, maturity, sex, social and cultural background and any other characteristics of the child 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 which the child has suffered or is at risk of suffering;

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

(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 tha the court thinks si relevant.

Analysis

13.I pay attention to the Children’s Order that it was extensively agreed between the mother and the father. Both parties should have known the rules of the arrangement of the children for long holidays. I fail to see there are changes of circumstances that warrant a variation of arrangement in the said periods. Having heard submissions by both parties. I am with the father. The reasons are as follows.

Chinese New Year holidays

14.I do not agree with the mother’s proposal that both parents shall have the entire block of Chinese New Year holidays alternated each year. It was only the elder son who had asked if he could spend the Chinese New Year eve and 1^st day of Chinese of New Year with the mother. I understand the mother would like the children to share the festive days with her. Nevertheless, the mother is expected to explain to the children that this arrangement has been agreed with the father. It would not be in the best interest of both children not having the opportunity to see either parent during Chinese New Year, at least, the children expect red packets from their parents and/or extended families.

15.I likewise could not see the basis of the mother’s further complaint that it is unfair for her to have waited for the whole morning on the 2^nd day of Chinese New Year.  It was expressly agreed in paragraph 9(ii) of Children’s Order that the children will stay overnight at the father’s residence in Chinese New Year eve until after lunch of the 2^nd day of the Chinese New Year and the mother shall have the children on that day. Practically, I do expect lunches on festive days would be a little longer than regular lunches on school days. It is doubtless that Chinese New Year is an important festive occasion in the Chinese culture; big lunches are expected and it would be in the best interest of the children to have an opportunity to enjoy sumptuous meals in both families.

16.The mother’s saying that it would not be satisfactory for the children having to transition back and forth two homes during holidays. The mother wants to avoid loyalty conflicts which would arise from  transitioning of two homes. It is also hard for the boys to adjust due to the parents’ different parenting styles.  With respect, it might happen not only in Chinese New Year holidays but in any day of the year. Children in divorced families have to learn to adjust and accommodate two homes, and very likely, different parenting styles. Although the arrangement of the children started to run since 2015, the learning process takes time.  All parties should have patience. Either parent having the entire block of holidays could not solve the problem because the children have to transfer between two homes anyway.

Easter holidays

17.Both the mother and father agreed in the Children’s Order that both of them shall share the 1^st half and the 2^nd half of the Easter holidays with the children on alternate years. The mother’s variation of this agreement arose because she could not be able to get the public holidays within the Easter holidays for two consecutive years. The mother proposed the parent who has the entire block of Chinese New Year holiday would have the non-public holidays during Easter holidays.

18.The mother’s complaint on this issue was not founded. Firstly, the mother could have planned ahead whenever the exact days of public holidays released by the HKSAR government in or about the latter half of each year. I agree with the father that under the agreement, there is also a chance that the father does not have the children during Easter public holidays for consecutive years.

19.Secondly, the plans of the children with their friends could be carried out, in their best interest no matter which parent they are with.

20.Thirdly, the Easter egg hunt activities arranged by the mother could have arranged during her time.

Other matters

21.Ms Irving submitted the children were not happy with the existing arrangement. The mother complained the father’s sister took pictures of her after the children’s Sunday class in front of them. It aroused the anxiety of the elder son. The photo taking incident was done by the father’s sister, not the father. I find this is unrelated to the mother’s application for variation of the children arrangement.

22.In addition, the mother complaint the elder son was unsettled when as he had reflected his feelings in one of his diary written to his teacher dated 17 August 2017. As I have indicated before, transfer between homes is an inevitable exercise for the children. I agree with Ms Hung, solicitor for the father, that this is something the children has to adjust and accommodate as a result of the divorce.

Conclusion

23.For the best interest of the children, the Children’s Order should be maintained. I dismiss paragraph 1(4) of the mother’s summons filed on 18 October 2017. As I recall there is no formal order made for other paragraphs in the mother’s summons during the hearing. I direct parties to submit a consent summons for approval on the agreed issues as mentioned in paragraph 3 of this decision.

24.I make no order as to costs of the mother’s summons.

Petitioner : Mrs. Frances Irving, instructed by Messrs. Withers

Respondent : Ms Barbara Hung of Messrs Chaine, Chow & Barbara Hung