|
FCMC 7811/2015
[2018] HKFC 32
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 7811 OF 2015
----------------------------
|
BETWEEN
|
| |
R, CS |
Petitioner |
|
and
|
| |
C, L |
Respondent |
----------------------------
Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)
Dates of Hearing: 30 and 31 January 2018
Written closing submissions to be mutually exchanged: 14 February 2018 (Petitioner’s received only)
Written replies to be mutually exchanged: 26 February 2018(None received)
Date of Judgment: 9 March 2018
________________
J U D G M E N T
(Custody, care and control and defined/supervised access)
________________
Introduction
1.This is an application by a Petitioner father for sole custody and care and control of the only child of the family, a daughter, N who is now 10 years of age. He also proposes defined and supervised access to the mother. The mother’s position is a little unclear as she has not issued a summons nor filed any other documents (such as an open proposal or a closing submission) which would have clearly set out her case. The father believes that the mother also wants sole custody and care and control of the child and for leave to relocate with her either to the United States or China. The wife however, has not issued a summons seeking either of these things. In her affirmation of the 26 August 2016 she asks that I revoke the order granting the father interim sole custody and care and control and that an order be made in her favour instead. In any event I am proceeding on the premise that the focus of this judgment is the Petitioner’s summons dated the 10 August 2016 which states as follows:
1. The Petitioner be granted sole custody and sole care and control of the child of the family, namely R, N S, a girl born on XX September, 2007 (“N”）.
2. The Respondent do have supervised access to N, the exact details to be determined by the Court.
3. Costs of this application be provided for.
2.This application concerns the arrangements to be put in place for a little girl, where the mother has on occasion behaved in a strange and out of control manner necessitating several injunction applications by the father and frequent police involvement. There have also been difficulties with respect to the renewal of both N’s American passport and her Hong Kong dependant visa. Although issues were raised at the beginning of the proceedings about the mental health of both parties, as the litigation has progressed any concerns about the father’s mental health have abated whereas there has been increasing concern about the mother’s mental health and her lack of insight in relation to the same.
The issues
3.The present issues before the court are:
Whether custody and care and control of N should vest in the sole name of the father?
And what access arrangement should be put in place once the issue of custody and care and control has been determined?
Background
4.The father is Jewish American and the mother is originally from Mainland China. In the father’s 1st affirmation dated the 22 June 2015 he sets out some of the background to the parties’ relationship as at that time as follows:
3. I met my wife in Japan in October 1998, and we courted for 3 years and married on XX November 2004 in Norwalk California. After getting married, we lived in California until 11 June 2013, when we came to Hong Kong. I now work as a programmer in Hong Kong for ABC Limited, and my wife is a housewife. We lived in a 550 square foot flat with two bedrooms on DEF, Midlevels, Hong Kong.
4. Our daughter, N, was born on XX September 2007 in La Jolla, California. She is now studying in grade 2 in X School located in JKL. She has been studying there for two years. N is doing very well in her studies, and she is completely accustomed to this school. Her grades are excellent and she has many close friends. N is a very active and sociable girl.
5. N and I have a very close relationship. We attend synagogue and other religious activities together. I watch N when L is out of the country or not at home, and N enjoys speaking with me a lot and communicating her feelings to me. At home, we often play games and bake together. Outside of home, we often go on hiking trips and visit various parks. Sometimes we go to the coffee shop together where N does her school work and I do my own work. I take N to swimming classes, and we were also planning to start piano classes for N. I also take N to play dates with other children.
6. The relationship between my wife and I has steadily deteriorated. My wife is a very self-centred person who constantly changes her mind. Before we came to Hong Kong and while we were still in San Diego, between February 2012-2013, she constantly changed her position whereby she would convince me that she wanted to move to Japan. Then on another week she said she wanted to move to Taiwan. On another day she again changed her mind and said she wanted to stay in San Diego or move to Hong Kong. She would say things like, “I’m done with California, let’s leave.” It was very hard for me to cope with her contradictory demands all the time. In March 2013, she conducted a 6 week campaign saying every day she wanted to move to Hong Kong, and that this was her final decision. I eventually adhered to her demands and I asked my boss whether it would be possible to relocated to Hong Kong. My boss agreed to this. We eventually moved to Hong Kong in June 2013, the day after N finished Kindergarten.
5.Unfortunately, it seems that from the father’s perspective at least, the relationship between the parties continued to be under great strain after they relocated to Hong Kong, leading him to issue divorce proceedings on the 19 June 2015 and to also seek the first non molestation injunction shortly thereafter. The father describes in a number of affidavits that follow a series of incidences that necessitated police involvement, the most serious of which took place in the middle of June 2016. On the 19 June 2016, which was Father’s Day, there was a physical altercation between the parties which led to the mother making a report to the Police. It does not seem that the Police pressed charges, but as a result of this the father and N did not return to live at the matrimonial home. On the 21 June 2016 there was an incident at N’s school where the mother and the maternal Grandmother lay on the ground at the entrance of the school and refused to get up. Once again the Police were involved and the situation was only resolved once the mother had had an opportunity to see N. Understandably perhaps it seems that N was greatly embarrassed by this incident.
6.The father then made a further urgent application to the court and given that the situation appeared to be veering out of control, an order was made on the 23 June 2016 granting him inter alia interim sole custody and care and control of N. Initially all access was suspended and other orders and directions were made, including a further non molestation order. On the 3 August 2016 a subsequent order was made which granted the mother supervised and defined access to N on Mondays and Thursday’s during the school summer holidays and on Tuesday’s and Thursday’s after school recommenced. Since then all access has been supervised and it has taken place at the offices of the Social Welfare Department.
7.I am told that the mother is now living in China with some of her maternal relatives and consequently she tends to come to Hong Kong once a week in order to exercise her right to access. She also has unfettered remote access inter alia by WhatsApp and telephone.
8.The mother defended the suit and there was a trial in this respect which took place on the 17 November 2016. On the 19 January 2017 I handed down the judgment and granted the parties a decree nisi of divorce.
9.On the 25 August 2017 I made a further directions order inter alia as follows:
4. Leave be given to the Respondent’s mother, namely, Madam. L X Q to file and serve an affirmation in support of the Respondent’s application within the next 28 days.
5. Leave also be given to the Respondent to file and serve a psychologist report on her own mental health, such report to be filed within the next 42 days.
It is of note that the mother did not file an affirmation from the maternal grandmother or a psychologist’s report on her own mental health. At the pre trial review on the 28 November 2017 she was given an extension of time of 14 days to file both. However, neither document had been filed by the time that the matter returned to court for the trial. It is also of note that she has never filed her Children’s Form, Form J or her Financial Statement Form E despite being ordered to do so on at least two occasions. Neither did she file and exchange her opening submission and open proposals.
.
10.The trial took place on the 30 and 31 January 2018. At the end of the trial I gave a further direction that on or before the 15 February 2018 closing submissions should be mutually exchanged between the parties. Likewise, on the 26 February 2018 replies were also to be mutually exchanged if so required. On the 14 February I received the father’s closing submission as ordered. None has been received from the mother.
11.In summary then the mother has consistently failed to comply with court orders and her involvement in the court process has been minimal. She has attended court hearings but has done little else.
The law in Hong Kong
12.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
(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -
(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;
13.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. 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:
(a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding);
(b) the child’s physical, emotional and educational 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 change in the child’s circumstances;
(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;
(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 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;
(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.”
This checklist has been considered when discussing the issues below. In particular, I accept that in the context of this particular case paragraphs a, b, c, d, f, g, h and i are of particular relevance.
The father’s open proposals
14.In his opening submission the father made the following proposals:
3. F seeks permanent sole custody, care and control of the Child with weekly supervised access to the Child to be maintained similar to the proposal put forth by Ms. L in the Updated Social Investigation Report dated 11 August 2017 as follows:
a) access be supervised by a professional Visitation Monitors in the offices of the Hong Kong Family Welfare Society (HKFWS) Parent-Child Contact Centre (“the Centre”) at Unit 1906, 19/F, Laford Centre, 838 Lai Chi Kok Road, Kowloon;
b) access be conducted between 1:30 pm and 4:00 pm on Sunday every first week of the month at the above office and between 4:15 pm and 5:30 pm on Thursdays of the remaining weeks of the month (i.e., the weeks when the office is closed on Sunday);
c) no makeup session be arranged unless with genuine reasons such as sickness of the Child, overseas trip of the Child, etc.;
d) if the access day falls on a public or Jewish religious holiday, a makeup session be arranged on another office day subject to agreement by both parents and availability of room of the Centre;
e) Supervision Order;
f) other visitors may join the Mother’s access appointment only with prior approval of the Father
4. F seeks that M shall have reasonable, private telephone and computer video access to the Child. The Child shall also have reasonable private telephone and computer video access to the Mother at all reasonable times and places.
5. F seeks for both M and F to encourage the Child to love, respect, and honour the other parent and the other parent’s family and neither of them shall alienate or attempt to alienate or diminish the affections of the Child from the other parent, or disparage or allow others to disparage the other parent in the presence of the Child. The Child shall not be involved in or exposed to any animosities that may exist between the parents, or involving their respective families, friends, or other parents. In particular, there shall be no discussion with the Child of maintenance payments or other financial matters.
6. F seeks that all orders and penal notices enjoining the Mother from disturbing either the Father or the Child (for example, Orders 10 and 11 of the Order dated the 3rd of August, 2016) shall continue. No maintenance payments or other transactions between the two parents shall take place in the presence of the Child in the proximity of the Centre around the times of the supervised access.
F seeks this arrangement because it is similar to the interim arrangement under which the Child is currently thriving, with some adjustments to ameliorate the remaining sources of stress and strife that have come up.
7. As to M, she seeks sole custody, care and control, and relocation to the United States, with reasonable access to F if F also moves there. The reason as far as I can understand it is that she is the mother, that she and the Child re United States citizens, and that government schools there don’t charge tuition.
The mother’s open proposals
15.There is no formal proposal from the mother.
The evidence
16.I must now turn to consider the issues, the law and the parties evidence as set out in the parties’ affidavits and as given orally by them during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition, I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.
17.I have heard evidence from the father, the mother, the social welfare officer and the clinical psychologist.
The Social Welfare Reports
18.Recommendations made to the court in social welfare reports although not binding are generally considered to be very persuasive. The reports themselves are said to be the ears and eyes of the court. That is certainly the case, as here, where one party is not fully co-operating with the court process.
19.In this instance there had been four Social Investigation Reports and one Memo filed since August 2015. I am though largely concerned with the last report dated the 11 August 2017. In that report the Social Welfare Officer recommended that sole custody and care and control be granted to the father with defined access to the mother as follows:
33. As far as access is concerned at present, what Mr R and N worry most is that Madam C would lose control on her behavior and take N away without being supervised by the third party. When placing the welfare of the child as the paramount concern, taking into consideration the views and expectations of all parties concerned, the experience of interim access as well as balancing the interest of the child to maintain mother-daughter bonding and relationship for her normal growth and development, a Supervision Order for 12 months with supervised access be continued for 3 months is recommended. While understanding that the interim supervised access has been arranged at the Family and Child Protective Services Unit (Central, Western, Southern and Islands), Social Welfare Department, Room 2313, 23/F., Southern Centre, 130 Hennessy Road, Wan Chai, Hong Kong since August 2016, the Investigating Officer is of the view that the parties can be benefited from the professional service of Parent-child Contact Centre of Hong Kong Family Welfare Society which provides specialized service to assist the separated or divorced parents to rebuild and maintain healthy communication and contract with their children who can also have safe, conflict-free contact with their non-residing parent. Apart from the access time from 4:15 p.m. to 5:30 p.m. on Thursdays, access time on Sunday afternoon on every first week of the month is also available to allow the mother and daughter to spend longer time together. Should Your Honour share the same view, the Investigating Officer would like to recommend defined access for the Respondent mother, Madam L C to the Child of the family, N S R as follows:
(a) access in the first three months to be supervised by a professional Visitation Monitors in the office of Hong Kong Family Welfare Society(HKFWS) Parent-child Contact Centre at Unit 1906, 19/F., Laford Centre, 838 Lai chi Kok Road, Kowloon;
(b) access be conducted between 4:15 p.m. to 5:30 p.m. on Thursdays and between 1:30 p.m. to 4:00 p.m. on Sunday on every first week of the month at the above office;
(c) access starting from the fourth month to be conducted outside the above office in the public place subject to the assessment of the Social Work Officer. The access time from 4:00 p.m. to 5:30 p.m. would replace the access from 4:15 p.m. to 5:30 p.m. on Thursdays while the access time on Sunday on every first week of the month remains from 1:30 p.m. to 4:00 p.m.;
(d) if (d) to be carried out, the hand-over and pick-up of the Child would be assisted by the Professional Visitation monitors of HKFWS Parent-child Contact Centre at a place agreed by both parties in Central to facilitate smooth exchange of the Child;
(e) no makeup session be arranged unless with genuine reasons such as sick of the child with medical certificate, overseas trip of the children, etc;
(f) if the access day falls on public holiday or religious holiday, make up session be arranged on another office day subject to agreement by both parents and availability of room of the Centre;
(g) Supervision Order for 12 months.
20.As will be seen I largely accept these recommendations save for the suggestion that the supervision be for three months only.
The Clinical Psychologists report
21.The Clinical Psychologist did not have an opportunity to interview the mother for the second report and she describes her interactions with the mother in some detail as set out below:
Appointment with the mother Ms. L C
16. An interview could not be arranged with Ms. C despite several offers. An appointment was first offered on 21.7.2017. Ms. C asked through the social worker Ms. L if the appointment could be arranged on Tuesdays (18.7.2017 or 25.7.2017), since she would be coming to Hong Kong from Mainland China for access with N. As I had other duties which could not be cancelled on 18.7.2017 and 25.7.2017, I relayed my reply through Ms. L that I could not offer a Tuesday appointment and suggested to keep the original date. I did not hear any reply until close to 21.7.2017 that a Ms W, the social worker who doubled Ms. L who was on leave, said that Ms. C was not coming to the appointment. Ms. W said that Ms. C asked her why she had to see the psychologist again as she saw one last year. To facilitate Ms. C to attend the interview, I offered another appointment on 1.8.2017, which was a Tuesday, to the mother through Ms. W, even though it was close to the date of report submission. I suggested meeting at 10:00 am but Ms. W told me that the mother said that it was too early and she had not yet crossed the border. She asked if she could come in at 2:00 pm and then she could go to the social worker’s office for access which started at 4:00 pm. I offered a later time at 11:00 am and explained that the interview would be too rushed if we started at 2:00 pm. I did not hear any reply again and I assumed that the appointment on 1.8.2017 at 11:00 am would be fine. I was away from office from 26.7.2017 for several days and was back on 31.7.2017. When I came back on 31.7.2017, Ms. L to me that Ms. C said to her that she would still be at the immigration crossing the border at 11 am. I then counter proposed to meet at 2:00 pm then if it was this difficult for Ms. C while I immediately rescheduled my other appointments. Ms. L immediately emailed Ms. C on 31.7.2017 about rescheduling the time of the appointment from 11:00 am to 2 pm on 1.8.2017. Ms. L replied me that Ms. C said she could not attend the appointment because Ms. L notified her too late, and that she should have told her three days in advance, plus she thought 2:00 pm was not appropriate because it was too close to the access time. I am writing in such details about the process of making the appointment with Ms. C here, which I normally do not do, is because even though I was not able to meet Ms. C face to face eventually, the little ‘interaction’ we had through making the appointment enables me to understand better what N means by her mother being confusing and often making a small thing into a hassle; and why N feels annoyed, as well as what Mr. R said about his ex-wife that she erased and negated what she said and she changed all the time. It came back as a bit surprising when Ms. C said that Ms. L notified her of the appointment on 1.8.2017 too late, while we had been discussing back and forth about when to meet on 1.8.2017 one week ago. Ms. C never indicated that she could not come on 1.8.2017 but she gave the impression that it was the time (too early in the morning as she would still be crossing the border). Another surprise was while it was Ms. C who initially asked if she could come at 2:00 pm, she ended up saying that 2:00 pm was not appropriate as it was too close to the access time (which was what I said in the first place).
17. I also did not have the chance to observe the access on 1.8.2017 as Ms. C objected to the arrangement. She also came back with inconsistent responses, according to Ms. L who helped to relay my request to her. She said yes at first, and then when she knew that it was on 1.8.2017, she refused with the reason that N had to observe a particular religious ritual that week and she was not allowed to smile, and she felt that it would be unfair to her if I observed this access. I happened to meet N in the morning of 1.8.2017 and N related with me with smiles and in a relaxed manner. She did tell me that it was a time of fasting but she did not need to observe it, not until she is 12. Subsequently, Ms. L told me that N and her mother had some good laughs in this access, which apparently cast doubt to the truthfulness of what Ms. C said.
18. All in all, as a third person and with this short encounter with Ms. C, I too experienced and found Ms. C responses perplexing, contradictory, confusing, and even doubtful as to their truthfulness. Although I cannot generalize anything from such limited information here, I do have some sense of how it might be felt by N, and what N may experience when she said her mother is confusing and that she often feels annoyed towards her.
22.In her Conclusions and Recommendations she added as follows:
Conclusions and Recommendations
19. From the interviews, the play activities and the results of the Family Relations Test, it can be seen that N has a close and secure attachment relationship with the father. It is a father-child relationship with love, joy and security.
20. I did not have the chance to interview Ms. C and observe the mother-child interaction in the access. N did not speak totally negative of the mother. She acknowledges that her mother is usually nice to her. However, it seems that N does not feel safe being with her mother. She does not feel that her mother can be trusted. In her relationship with her mother, she experiences the latter as confusing. She sees her mother as someone who often jumps from one thing to another and makes small things into a big commotion. She is not so afraid of her mother now, as long as it is in the social worker’s room. She is still upset when she recalls some past incidents such as her mother holding a knife to her own throat. She wants the access to be supervised so her mother would be restricted and behave normally. N does not mind going to the access but says that she does not prefer to if she can. She does not want to see her mother outside the social worker’s office. She is worried that her mother may take her somewhere and not bring her back.
21. Currently, N is annoyed by the text messages that her mother keeps sending her and the accusations she makes about her and her father. She does not like these but she is unable to do anything about it. Sometimes, she asked her mother “what is wrong with you”, but she usually just conceded to her requests such as calling her, or sending her a voice message or a picture so that her mother would stop.
22. The encounter I had with Ms. C because of making the appointment and arranging the observation of the access gives me a glimpse of what possibly may be N’s experiences in her relationship with her mother. The process of making the appointment came to me as perplexing and confusing with constant changes that contradicted one another, and there was an implicit suggestion that the problem for not being able to make the appointment lay with the social worker who notified Ms. C too late and I who offered an inappropriate time that was too close to the access time. The reason that Ms. C turned down the observation of the access was odd and doubtful. I do not know the Jewish religion, so I cannot be certain if there is really such a religious ritual that on certain days one is not allowed to smile, or this is just a made-up excuse of Ms. C. Although I cannot generalize anything out of this little encounter that I had from making the appointment and arranging observation of the access with Ms. C and I have not further objective data to substantiate how frequent and how fixed a pattern these behaviors are on the part of Ms. C, I incline to believe what Mr. R and N told me that they experience these from Ms. C frequently throughout the years. It also does not seem that Ms. C is aware of the impacts of the ways she acts on others and on N.
23. I opine that the supervised access can be continued. Information from the social worker suggests that the access is going on fine, and Ms. C and N are having fun and good times. I would incline towards the access being supervised at this stage given the information I obtained from N and the father Mr. R in the interviews, and my experiences of the encounter I had with Ms. C in the process of making an appointment (which in fact was a relatively minor event but it turned out to be a process infused with confusion, contradictions, and bewilderment). It appears that Ms. C acting towards different people (N, Mr. R, the social workers, myself) across different contexts (both in the family and outside contexts) in similar manners, which lead me to suspect (and I must emphasize that this is a mere suspicion as I do not have further objective data) that perhaps her behaviors may not simply be situation specific, and whether there may be a more complex and longstanding pattern.
24. Ms. C continual phone messages to N is likely to backfire and can push N away from her. It may potentially be hurtful to a child that she is being continuously accused of lying or she continuously has to hear one parent making accusations against another parent, especially that the accused parent is the one the child attaches to and loves. Although N said she does not mind going to the access, she also said that she prefers not to if she can. This indicates that the child is having some ambivalence. The way the mother is acting can potentially push the child towards the negative end of rejecting the access. This may not happen now, but as N grows older into adolescence and have more autonomy, she may assert her will more and choose to distance her relationship with her mother to avoid the hassles and the troubles, and perhaps to protect her personal boundary. I am not sure if Ms. C is able to refrain herself from sending these phone messages that doubt N as not being honest, and that pressure N to respond immediately in her defined ways (such as a voice message or a picture), which in a way leaves little space for and is intrusive of the child’s boundary. I am also not sure if she is aware of the potential negative impacts that her actions may have on N, though I incline to opine that probably she may not have this awareness. This situation, however, needs to be attended to so that the access may not be affected. I am concerned that if this situation continues, over time, this can negatively backfire; and it is possible that N may feel resentful which then may affect the access.
23.Unfortunately, despite being ordered to file a psychological report on her own mental health and despite my explaining the importance of this to the mother on several occasions, none has been filed. Certainly the mother’s behaviour both in and outside the court continues to be a matter of considerable concern, as does the fact that the mother appears to have little if any insight in relation to this.
24.I asked the Clinical Psychologist, about the recommendation made by the Social Welfare Officer concerning supervision and she stated that supervised access may be needed for a longer period of time, until perhaps N is 13 or 14 years of age and more able to cope with the mother’s behaviours. Again, as will be seen, I tend to agree with this analysis of the situation. I will though initially bring this matter back after 12 months for an update.
The character of the parties
The father
25.I found the father to be entirely credible. He is clearly very bright, and has done a good job at representing himself. He is softly spoken and appeared mild mannered and very amiable. This situation has clearly been very difficult for him, but he has nevertheless been able to focus on doing what he sees as being in N’s best interests. I accept that he has created a good home for N and that she is thriving in what is now a stable and nurturing environment. I also accept that he is supportive of facilitating the mother’s relationship with N and that his concern is that the access should be safe. I have no doubt that he is a very good Dad and that he loves his daughter very much.
The mother
26.As indicated above I remain concerned about the mother’s mental health. I accept the observations made by the Clinical Psychologist and the Social Welfare Officer and I also accept most of what has been described as the mother’s behaviours in the father’s affidavits. I accept that some of these behaviours could be worrying for a child and difficult for her to cope with. Nevertheless, I also accept that the mother loves N very much and that she is probably in need of psychiatric/psychological support, which she is not currently receiving.
Should custody and care and control of N vest in the sole father?
27.Given the present circumstances it seems to me that the welfare of N is best served at the present time by an order for sole custody and sole care and control vesting in the father.
28.I am also mindful of the fact that the father is still experiencing difficulty renewing N’s American passport. I will direct therefore that in the absence of the mother’s cooperation in that respect that the application be undertaken by the father only. Similarly, if the mother refuses to participate in the renewal of N’s Hong Kong dependant’s visa then this is something that can be undertaken solely by the father.
What access arrangements should be put in place?
29.I shall make an order in terms of paragraphs 3 (a) – (d) and 4 of the father’s proposal as set out in paragraph 14 above. The access shall be supervised on an ongoing basis subject to a further order. Consequently, there shall be an updated Social Investigation Report in 12 month’s time on the issue of access and supervision only.
Section 18 declaration
30.The father is wholly responsible for every aspect of N’s life. He also provides for her financially without any contribution from the mother. In such circumstances I can see no reason why a section 18 declaration should not be granted at this juncture.
Costs
31.Given the nature of this dispute I will make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs.
Orders
32.Consequently, I will make an order as follows:
1) Sole custody and sole care and control of N, a girl born on the XX September 2007 shall be granted to the Petitioner father with defined and supervised access to the Respondent mother as follows:
a) access be supervised by a professional Visitation Monitors in the offices of the Hong Kong Family Welfare Society (HKFWS) Parent-Child Contact Centre (“the Centre”) at Unit 1906, 19/F, Laford Centre, 838 Lai Chi Kok Road, Kowloon;
b) access be conducted between 1:30 pm and 4:00 pm on Sunday every first week of the month at the above office and between 4:15 pm and 5:30 pm on Thursdays of the remaining weeks of the month (i.e., the weeks when the office is closed on Sunday);
c) no makeup session be arranged unless with genuine reasons such as sickness of the Child, overseas trip of the Child, etc.;
d) if the access day falls on a public or Jewish religious holiday, a makeup session be arranged on another office day subject to agreement by both parents and availability of room of the Centre;
2) Further the Respondent mother shall have reasonable remote access to the child to include private telephone and computer video access to the Child.
3) An updated social investigation report be called for in 12 months’ time with respect to the issue of access and the supervision of that access only.
4) There shall be an order nisi that there be no order as to costs. Such order to be made absolute in 14 days’ time.
5) A section 18 declaration to issue
6) There shall be a further First Appointment hearing on the 20 June 2018 at 9:30 am
7) Both parties do personally attend that hearing.
8) It is further directed that the father may apply to renew N’s American passport and her Hong Kong dependant’s visa without the mother’s consent.
| |
(Sharon D MELLOY) |
| |
District Judge
|
The Petitioner and Respondent both appeared in person
|