Pjm v. Gpn
Read the full judgment text of FCMC 4999/2014 on BabelCite. This Family Court judgment was delivered on 2 May 2018 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Children – Care and Control – Shared Care – Special Needs – Parental Co-ordinator – Costs – Petitioner father sought variation of care arrangements due to child T's special needs and diagnosis disputes regarding autism spectrum disorder – Respondent mother sought maintenance of status quo with joint care and control – Court held shared care arrangement should be maintained on week on/week off basis as current arrangement was working despite parental conflict – Court ordered appointment of Parental Co-ordinator to manage conflict and improve co-parenting – Court directed parties to share medical reports and seek consent for medical professionals to avoid misunderstanding – Court ordered no order as to costs between parties despite high conflict case.
Legal issues: Variation of care and control arrangements · Appointment of Parental Co-ordinator · Medical consent and reporting · Costs
Outcome: Father's summons dismissed; Mother's summons dismissed; Shared care order varied to week on/week off
Cited by 5 cases · Cites 5 cases
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FCMC 4999 / 2014 [2018] HKFC 65 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 4999 OF 2014 ----------------------------
---------------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Date of Hearing: 23 and 24 January 2018 Date of written closing submissions: 7 and 9 February 2018 Date of written replies: 14 February 2018 (none received – letters confirming the same dated the 20 and 27 February 2018) Date of Judgment: 2 May 2018 ---------------------------- J U D G M E N T ---------------------------- Introduction 1.This trial was set down in order to determine cross applications with respect to the day to day care arrangements for the two children of the family, T, a boy who is now aged 11 having been born on the XX March 2007 and C, his sister who was born on the XX October 2010 and is now aged 7. Custody is not in dispute, notwithstanding the fact that some of the disagreements between the parties appear to be in relation to custodial as opposed to daily care issues. The parties currently have joint custody. Thus the main issue between the parties, from a courts perspective, relate to the day to day care of the children. The court is asked to consider whether the current arrangements or the status quo of the children should be maintained or alternatively whether or not a different arrangement should be put in place and if so what that arrangement should be? Other directions are also sought with respect to the care of the children going forward. 2.As will be seen the proposals put forward by each side are entirely reasonable and although T has some challenges, it would seem that both children are currently doing well. 3.T has special needs and related learning issues. Although there has been much debate about his “diagnosis” there is no doubt that he will need ongoing and fairly intensive support. The parties are agreed that he should attend ABC school from September of this year. Background 4.The parties met in Hong Kong in around 2005/06 when the father was seconded to Hong Kong from the United Kingdom, which is where he was then working. The mother is Filipino but she has residency in Hong Kong, whereas the father was born and grew up in New Zealand. He is of British heritage. The eldest child of the family T was born on the XX March 2007. The pregnancy was unplanned, but not withstanding that the father, who had left Hong Kong at the end of his secondment, nevertheless returned to the territory in order to take up his responsibilities as a father. The parties subsequently married on the XX November 2007. Their second child C was born on the XX October 2010. 5.Unfortunately, unhappy differences arose between the couple and the father issued divorce proceedings on the 17 April 2014. The parties were able to reach some agreements in mediation and a consent summons in relation to the children was filed on the 4 December 2014. The parties agreed joint custody and joint care and control and initially the children’s time was split more or less equally into two or three day tranches at any given time. In August 2015 the parties agreed to vary this arrangement so that the children spent time with each of their parents on a week on/week off basis with the handover being on Friday’s at 5:30pm. The parties also came to terms in relation to their finances following the Financial Dispute Resolution process. The order in that respect is dated the 2 April 2015. 6.Both parties are now working full time and they each have their own domestic helper. Originally the parties shared a helper, but this proved untenable in the longer term. The mother has since employed a distant relative as her own helper. Thus each party relies on their own helpers for appropriate support during the weeks that the children are in their care. In addition, the mother has the support of her immediate family, most of whom reside in Hong Kong and she sees her close family members, including a sister who lives in DEF with her own family, on a regular basis. The father’s wider family reside mainly in New Zealand. 7.Unfortunately, as indicated above, T has special needs and some related learning issues; much of the conflict between the parties arises out of each parent’s approach to this. It is of note that the father accuses the mother of not supporting the children academically and with respect to T, of not supporting his therapeutic and medical needs fully. He also implies that T’s developmental issues may be the fault of the mother. In addition, he suggests that certain problems that T has at school from time to time, are as a direct result of the mother’s parenting style. He is particularly incensed by what he says is the mother’s insistence to medical professionals and others, that T is autistic or on the autistic spectrum, when there is no diagnosis of the same. He wishes to be wholly responsible for all of the children’s medical needs. 8.The mother for her part says that this is all evidence of the father’s over controlling and condescending attitude towards her. She denies most, if not all of his allegations and maintains that the interests of the children are best served by them continuing to have a lot of contact with her preferably on a 50:50 basis. She is concerned that the father will make it difficult for her to parent the children if he is successful in his application. The law Custody, Care and control, joint care and control/shared care and access 9.The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. 10.Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that
11.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:
12.For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that
13.Case law has developed over time and the most authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Reference should be made to that judgment as necessary. 14.Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control and shared care:
15.In this case then we are concerned with the appropriate arrangements to be put in place for the two children of the family and how that should be reflected in the terminology used in the court order. Although the parties started out with an order for joint custody and joint care and control, it is clear, given the deterioration in their post divorce relationship and the almost chronic level of mistrust that currently exists between them, that going forward it would be more appropriate for there to be either an order for joint custody and shared care or a more standard order for joint custody, care and control and defined access. Discussion 16.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, who prepared the second report dated the 9 January 2018. Each party’s open proposals The father 17.The father made the following open proposals prior to the trial:
18.In the father’s closing he argued that this proposal is still an example of joint care and control and that in reality he and the mother would still care for the children on a more or less 50:50 basis given that he would have limited time with them during the week and the mother would enjoy most of their leisure time over the weekends. The mother 19.The mother for her part set out her open proposals as follows:
20.In her opening submissions she added as follows:
The Social Welfare officer’s reports 21.There have been two reports filed, the first dated the 7 March 2017 and the second updated report dated the 9 January 2018. I am largely concerned with the second report. Social Welfare Reports are generally regarded as the “ears and eyes of the court” and they provide a very valuable function in that respect. However, the recommendations made are not binding on the court. If the court does not agree with the recommendations made, then reasons should be given. 1st Social Welfare Report dated the 7 March 2017 22.In the first report the Social Welfare Officer Ms E said as follows:
23.Ms E was not called to give evidence in court. The mother said that she was prepared to accept these recommendations. The father disagreed, as it would mean that he would never have any down time with the children. However, he seems to have taken them into account when making his open proposal and he says in his closing that it was unfortunate that Ms E was not called to give evidence as she clearly had good reasons for making the recommendation that she did. I tend to agree that this proposal would most likely not be in the children’s best interests as is stands given the disproportionate emphasis between week days and weekends. I also rather suspect that it would not “solve” the dispute over homework given that T in particular will be expected to do homework over the weekends once he begins senior school. However, I do accept Ms E’s suggestion that the parties should consider appointing a Parental Co coordinator. Given the almost chronic level of conflict and lack of trust that exists between the parties, it seems to me that the appointment of a Parental Co coordinator could only be a good thing. 2nd Social Welfare Report dated the 9 January 2018 24.The second Social Welfare Officer Ms L recommended that the current arrangement remain unchanged. In her report she stated as follows:
25.In the witness box Ms L also made some other valuable observations. She said that the father was a very tidy person and that he liked things arranged in a neat and tidy manner. She added that he was of the view that school instructions should be followed strictly, whereas the mother placed importance on other things in addition to the academics. She said that in her opinion, these were simply two parents who had very different parenting styles. She recommended that each should try to accommodate the other. She reiterated that the father was of the view that T could do better if he was under his care. For her part however she said that according to the school T appeared to be improving and that she was content for the shared care arrangement to continue. She said that in her view both parents were following the instructions from the school and that each provided appropriate support for T. As will be seen I largely accept the recommendations made by Ms L. The reports 26.As indicated above a lot of the conflict between the parents’ centres on T, his diagnosis and the approach that each parent has taken to his special needs both in the past and going forward. 27.There is no doubt that in the Psychological/Psycho- Educational Assessment of T in November 2014 T was diagnosed with Attention Deficit/ Hyperactivity Disorder combined presentation, Severe and Social (Pragmatic) Communication Disorder. T was 7 years and 7 months old when the assessment was conducted. Dr S, who undertook the assessment, also identified two core weaknesses, namely T’s difficulties with executive functioning and his difficulty with pragmatic social language. In discussing the latter, he said
However, T was not actually diagnosed as being on the autistic spectrum. 28.In earlier reports similar references can be found. In a report dated the 21 February 2011 from the D Hospital, the following Comments and Conclusions were reached:
T was only 3 ½ at that time. 29.I have also been referred to two other reports including an Educational Psychology Report dated the 14 November 2016. This also refers to Dr S’s diagnosis and makes a number of recommendations being strategies and suggestions that the parties might find helpful going forward. It also set out a number of challenges that T was facing at that time:
This report is 16 months old; T was 9 years and 8 months old when the report was made. 30.It was put to the father during cross examination that he had never accepted that T had autistic features. He agreed and pointed out that this was because T had never been diagnosed with autism and that notwithstanding that the mother had nevertheless told people that he had been so diagnosed in 2010. He said that he could not rule out that happening in the future. He did not accept that Social (Pragmatic) Communication Disorder was part of the autism spectrum. It is of note that no medical evidence was produced for the court on that point and therefore it is not possible for me to take this any further. 31.The mother for her part maintains that she is not so concerned with whether T is autistic or not. She just wishes to get the appropriate support for him regardless of any diagnosis. 32.I have taken judicial notice of the fact that generally speaking children are not formally diagnosed at a young age with special needs like autism, because of all the issues that are clearly of so much concern to the father, including the fact that a child may be inappropriately labelled as having learning difficulties when that is not infact the case. However, I also have some sympathy with the mother here. T had been referred as possibly being on the autistic spectrum in the earliest report from the D Hospital, although clearly he was too young for any definitive diagnosis to have been reached at that time. Further reference is made by Dr S to autism in his report although he did not diagnosis him with the condition. As indicated above I am not in a position to state whether or not the Social (Pragmatic) Communication Disorder that T has been diagnosed with is on the autistic spectrum, or if it is connected to autism in some way, as has been suggested by counsel for the mother. In any event it seems to me that T clearly has special needs which need to be addressed in an appropriate manner, regardless of what he has or has not been formally diagnosed with. 33.The Social Welfare Officer has suggested that both parents take copies of all the T’s reports to any medical or therapeutic appointments, so that there can be no misunderstanding in relation to this going forward. The father has rejected this as being impractical. I do not agree. It seems to me that this is a sensible approach and one that should be adopted by both parents. I do not accept that the father’s concerns in this respect are of such a magnitude that a change in the current arrangements is justified. I would suggest however that the mother refrain from referring to T as suffering from anything other than the conditions he has actually been diagnosed with i.e. Attention Deficit/ Hyperactivity Disorder combined presentation, Severe and Social (Pragmatic) Communication Disorder. How should the care of the children be split during term time? 34.In addition to issues surrounding the diagnosis of T’s special needs, the father also maintains that there are issues related to homework support for the children by the mother and T’s additional therapeutic support. The father is also of the view that the children do better at school when they are in his care and he also complains about other minor things including T sharing the mother’s bed and her care of the children when they are ill. Homework support 35.Both parents work full time. Consequently, when the children are in the care of either the father or the mother, each party’s domestic helper is responsible for caring for the children between the end of school and when each of the parents returns home. I accept therefore that it is likely that the children will begin their homework before that time. Although the father probably has a more disciplined regime in place for this, I nevertheless accept that the children do their homework when they are with the mother and that she is clearly very well versed in what was required of them and what they each needed to do. Although she admitted that she tended to concentrate on other things apart from the guided reading and mental arithmetic, she nevertheless ensured that the homework was generally done. Medical and therapeutic support 36.The father maintains that the mother is uninvolved in T’s occupational therapy and other medical care including the monitoring of Ritalin, which he takes for his ADHD. The mother for her part points out that the father insists on being the parent who controls these matters. Historically the father was wholly responsible for the payment of T’s therapies and medical consultations etc. Therefore, he became the parent who was in charge of the arrangements for the medical appointments and ongoing therapies. I accept that to be the case. I also accept that it would be very hard for the mother to now try to take on a more proactive role in this respect as the father seems very invested in this side of the children’s care. I accept that the mother has simply tried to take the path of least resistance and to not inflame an already highly conflicted situation. I do not accept however that she has acted improperly when the children are ill or that she has tried to instruct medical professionals to the exclusion of the father. For the avoidance of doubt therefore I will further direct that neither party is to engage medical professionals without informing the otherside and seeking their consent to the same. In the event that either party objects or there is some other concern in this respect then reference should be made to a Parental Co coordinator in the first instance. Both parties should be given the opportunity to attend medical and therapeutic consultations. If either of the children requires urgent medical attention, then each parent is to inform the other as soon as possible. Children’s performance at school 37.In a very unsavoury part of the evidence the father relied on a number of e-mails from the school for the period from August 2015 – August 2016, which he said went to support his case that T did better when he was with him than when he was with the mother. Understandably perhaps he was cross examined extensively on this by Mr Hotten (counsel for the mother). I accept that it was clear from this that T had both good and bad days. It is not accepted that his behaviour was wholly good when with the father and wholly bad when with the mother or that he always had more successes when in the care of the father when compared with the weeks that he spent with the mother. It is also of note that this evidence was over two years old in any event. Other complaints 38.The father raised other complaints, including the fact that T slept with his mother when in her care. The mother maintains that this was not a regular occurrence, but that sometimes T complained and wanted to sleep with both her and C. I accept that there is a cultural component to this and that the mother has a very small apartment in any event. Again this is a relatively minor issue and the mother agrees that T should sleep in his own bed going forward. The father and the mother in the witness box and generally 39.When considering matters of this nature the court is charged with considering the character of both parties in the witness box. I should say at the outset that both parents struck me, and have during the course of the litigation, as being dedicated and loving parents who only want what is best for their children. They struggle however, in that they do not appear to have any form of functioning parenting relationship and they have not developed the necessary strategies in order to be able to deal with each other on a day to day basis. There also appears to be a lot of underlying emotional baggage that effects their ability to interact with each other. They are clearly both intelligent but have very different outlooks on life. I do not believe that the answer lies with changing the structure of the shared care/joint care and control regime. These problems will continue to surface regardless of that structure. Blaming each other also does not help. The father 40.The father presents as being a very detailed orientated person. He believes in following rules and regulations strictly. He is neat and well presented and I have no doubt that the Social Welfare’s observations of both him and his home are correct. I have no doubt at all that he provides the children with a well run and regulated home and that he is also loving and affectionate with him. The mother 41.The mother presented as being more emotional. She has clearly been upset by this process and was visibly teary at times in the witness box. I have no doubt that her approach to parenting is somewhat different from that of the father. But she knew what each child needed to do homework wise and has clearly gone to great lengths to educate herself about different approaches to children with special needs. I accept that she always tries to act with the best interests of the children in mind and she has struggled with the father’s criticism of her. Again I have no doubt that the children are closely attached to her and that she is a good and loving mother to them. The different options 42.I do not accept that the father has made out a case to vary the care and control of the children. I have considered whether or not the week on/week off arrangement is appropriate and whether in the alternative it might be better to impose a 2:2:5:5 regime as suggested by Mr Hotten for the mother in his opening proposal. An example of this is set out below:
43.This would mean that the children would spend every Monday and Tuesday with the mother and that they would also continue to alternate the weekends. In addition, the children would spend every Wednesday and Thursday with their father. The advantage of this proposal is that each parent would then be able to organise extracurricular activities or extra tuition or indeed other therapeutic support for T on a regular day each week when the child is in their respective care. The difficulty is that it means more changeovers in any given two-week cycle at time when T is due to begin senior school in the Autumn and he is going to be faced with many other challenges. It may also be more difficult for the mother to manage, as she has to travel more frequently than the father. In such circumstances and on reflection, I have decided not to interfere with the current week on/ week off arrangement. I have also considered the two week on/ two week off proposal suggested by the mother but I am concerned, given the relative young age of the children, that that would mean that they are away from the other parent for too lengthier a period of time. Conclusions and order 44.Consequently I shall make an order as follows:
Costs 45.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. The mother has indicated that she wishes to seek her costs. However, in the first instance I will make an order nisi to be made absolute in 14 days’ time that there be no order as to costs. If either party wishes to challenge this, then they will need to take out the appropriate application. There shall be certificate for counsel and I thank him for his assistance in this matter.
The Petitioner father appeared in person Mr Keith Hotten instructed by Weir & Associates appeared for the Respondent mother | ||||||||||||||||||||||||||||||||||||||||
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