Lysc v. Msn
Read the full judgment text of FCMC 13330/2017 on BabelCite. This Family Court judgment was delivered on 21 November 2019 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – custody – access – staying access – corporal punishment – best interests of the child – Guardianship of Minors Ordinance – Matrimonial Causes Ordinance – social welfare report – clinical psychologist report – whether father poses risk to child – no significant risk found; whether overseas holiday access permitted – permitted; access schedule – specific terms ordered – Access order made for father including staying access and holiday access; no order as to costs
Legal issues: Staying access and risk assessment · Travelling abroad · Alterations to general access schedule
Outcome: Access order made for father including staying access and holiday access; no order as to costs.
Cites 1 case
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FCMC 13330 / 2017 [2019] HKFC 299 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 13330 OF 2017 ----------------------------
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__________________________ JUDGMENT __________________________ Introduction 1.The current hearing arose initially out of the Respondent father’s summons dated the 4 January 2018, when he sought an order for interim defined staying access. This application was made in light of the husband’s original request as set out in his Form 4 dated the 26 October 2017, for an order for joint custody and shared care of the only child of the family, a little girl called B, who was born on the XX September 2010 and is now 9 years of age. In his Form J the father asked for shared care on a week on/week off basis. The mother for her part originally sought custody of B with reasonable access to the father. 2.Notwithstanding this divergence of views, the parties were sensibly able to resolve most issues with respect to B’s care. On the 8 January 2018 an interim order was made whereby the father had access to B, albeit not staying access, on each Monday, Wednesday and Friday evening and on alternate weekends. On the 19 April 2018 the parties further agreed joint custody, with care and control to the Petitioner mother. In addition, the father continued to have regular weekly access, with staying access on alternate weekends from Saturday at 8:00 am until Sunday at 9:00 pm. Unfortunately, despite a Children’s Dispute Resolution (CDR) hearing on the 4 September 2018, the parties have been unable to agree on staying access otherwise. 3.In a nut shell the father wishes to have regular staying access including overseas holiday access. The father is Bulgarian and he wishes in particular to be able to take his daughter to visit her wider family in Bulgaria. The mother is however very resistant to any extensive staying access. She complains that the father has used corporal punishment on B in the past and she has concerns that this may happen again in the future. She is agreeable to very limited staying access and to splitting the school holidays, but only on the premise that the child returns to her each night to sleep. 4.Consequently, this trial brings into sharp focus the apparent differences in parenting styles, from parents who come from two very different cultural backgrounds. It is the mother’s clear view that all forms of corporal punishment are wrong and cannot be condoned at any level. Although the father has promised not to use corporal punishment on B, this is not a view that he necessarily accepts as a general premise. 5.At the CDR hearing it became clear that the parties would not be able to resolve these apparent differences and the court ordered that the Mother’s allegations concerning the father’s behaviour with respect to B, should be transferred out of the CDR list. Thus this trial is concerned with both these alleged behaviours and the related issue of staying access going forward. The issue to be determined 6.Thus the outstanding issues to be determined concern a) staying access, b) travelling abroad and c) other minor alterations to the general access schedule. In considering these issues, the court is also required to make a risk assessment. What is the risk to the child, if any, if the court makes an order for increased staying access including holiday access going forward? The father’s proposal 7.In his closing submission the father amended his initial proposal slightly, to take into account his new working hours. His amended proposal states as follows:
8.In particular, it should be noted that the father now works from 8:30 am – 6:00 pm Monday – Thursday and from 8:30 am – 5:00 pm on Fridays and he is based at the X Park in Shatin. Realistically he is now only able to pick B up at 6:30 pm during the week as opposed to 6:00 pm as before and he is also able to pick her up at 6:00 pm on Fridays. It is also of note that he has 14 working day’s annual leave and he is not required to work on weekends. Previously he worked in academia and arguably had more flexibility as a result. I was told during the trial that the parties had been able to discuss pickups and that there was some flexibility depending on B’s after school activities. As at the date of trial B had a drawing class from 5:35 – 6:50 pm on Mondays, and a second drawing class from 4:15 – 5:30 pm on Wednesdays and ballet from 7:15 – 8:00 pm on Fridays. The mother’s proposal 9.The mother for her part proposes as follows:
During the trial I clarified the issue of the extended weekend and the mother confirmed that she is not agreeable to an extended weekend from Friday – Sunday evening. The other real sticking point remains the whole concept of staying access generally and in particular overseas holiday access. The mother had no difficulty with alternating single public holidays during the school term or splitting the longer school holidays as long as B only had day access with her father. Background to the marriage 10.The parties met in the United Kingdom and on the XX September 2009 they married in Glasgow, Scotland. The only child of the family, B was born in the United Kingdom a year or so later. The mother is Hong Kong Chinese and in 2012 the parties relocated to Hong Kong, which is where the mother is from originally. Although the mother is ethnically Chinese, she has studied and spent significant periods of time in the UK. She is now aged 42 years old and she is a freelance dance teacher. Generally, therefore, she works after school hours and over the weekends. Her parents provide child care support when required and they live close by. The father for his part is Bulgarian. He is now aged 45 years old and he is an Electronical Engineer. He has also spent significant periods of time in the UK. 11.Sadly, unhappy differences developed between the couple and on or about the 26 August 2016 the wife moved out of the matrimonial home, leaving B in the primary care of the father, although it is her case that she continued to visit the child every other day. This situation continued until October 2017, when there was an incident which eventually led to the father moving out of the matrimonial home and the mother resuming full time care of B. Shortly thereafter, on the 13 October 2017, the mother issued a divorce petition based on one-year separation with consent. On the 4 January 2018 the decree nisi was granted and as indicated above a further order was made on the 19 April 2018 for joint custody, with care and control to the mother and interim defined access to the father. On the 25 January 2019 a Clinical Psychologist’s report was filed. Two Social Welfare Reports have also been filed, the first dated the 29 March 2018 and the second dated the 21 August 2018. The law in Hong Kong 12.The general principles governing applications relating to children’s issues are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which states that:
13.For the avoidance of doubt, in so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words, the child has the right to see and to have a relationship with both of her parents. The court is primarily concerned with the best interests of B and not the relative rights of each of the adults with respect to her. List of factors 14.In addition, reference may be made to the list of factors referred to in the Children’s Proceedings (Parental Responsibility) Bill. Although this list of factors has yet to find its way into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating inter alia to access. The checklist states that the following should be taken into account:
15.It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire. In this case I have taken note in particular of those points that are in bold. Discussion Social Welfare report/s The first Social Welfare Report dated the 29 March 2018 16.It is trite but worth repeating that recommendations made to the court in social welfare reports, although not binding are generally considered to be persuasive. The court is not required to follow the recommendations made blindly, but should give reasons in the event that the recommendations are not adopted. 17.The first Social Welfare Report was concerned with all aspects of B’s care and Miss T investigated the incidents complained of by the mother. In that regard she said as follows:
18.Ms T ultimately recommended inter alia that
19.Ms T confirmed in the witness box that her recommendation above included staying access. When asked specifically about overseas access, she said that B had disclosed to her that she had been to Bulgaria in the past and that she hadn’t mentioned that anything had been wrong or that there had been any unhappiness. On that premise she had made her recommendations as set out above. 20.The mother cross examined Ms T at some length about her sources of information with respect to the allegations of child abuse. In the main Ms T stood by what she had said in her report. In addition, Ms T said that she had observed the interaction between B and the father and she had spoken to the school. She denied that she had simply believed the father when he had told her that he had stopped exercising corporal punishment. 21.The mother asked Ms T a number of questions designed to establish the possibility for ongoing risk. However, Ms T also stood firm. She said that when she asked B, B had said that her Daddy had used corporal punishment in the past when she was naughty – but that he no longer did this. The second Social Welfare Report dated the 21 August 2018 22.The court requested a second short updated report on the issue of staying and holiday access only. In this second report, Ms C, who had replaced Ms T, also recommended that the school holidays be shared equally as follows:
23.Ms C also stated that she agreed with Ms T, that this recommendation should include overnight staying access. 24.During the trial Ms C also confirmed that the father had had some counselling with a group called Four Dimensions and that he had told her that he no longer used corporal punishment. However, the mother remained sceptical, asking how that could be measured. Ms C confirmed however that she had spoken to the therapist at Four Dimensions and that he had confirmed that the father had received some therapeutic support from October 2017 to July 2018. Ms C confirmed that she still recommended that the father have overnight staying access and that she would have no objection to B travelling overseas with her father. The Clinical Psychologists report dated the 25 January 2019 25.The Clinical Psychologist, Ms W, reported on the parent’s psychological state and said as follows:
With respect to their approach to parenting she added as follows:
26.In so far as B’s relationship with her parents is concerned, it is clear that she has a close and bonded relationship with each of them. B specifically commented that she was not afraid of the father and that she would like to go on holiday with him and visit her grandmother in Bulgaria. In conclusion Ms W added inter alia as follows:
27.Ms W confirmed in the witness box that she thought that it would be permissible for B to start with a two-week holiday with the father and for the length of the proposed holidays to be increased over time. She also stood firm under the cross examination from the mother. 28.As will be seen I largely agree with the recommendations made by all three experts, save that I would have some concerns starting off with a two-week holiday and would prefer to begin with a shorter period of time instead. It is of note that the father has not sought a longer holiday period in any event. What is the risk to the child, if any, if the court orders increased staying access? 29.The mother is convinced that the father poses a risk to B. Her belief will not be shaken. However, there is little to substantiate this belief. It is true that the father has lost his temper in the past and that on occasions he has exercised corporal punishment against B. But these incidences, are, with respect relatively minor. It is probably for this reason that the ACA did not open up a full enquiry after what might be regarded as one of the most serious offences took place i.e. the spanking of the buttocks in September 2015. The mother attached a chronology of allegations and information in her bundle of documents which reads as follows:
30.I have marked with an * the alleged incidents of physical violence against B. There are others which do not include any physical contact. The father has explained the circumstances surrounding each incident. It is of note that none of these incidences necessitated a Multi-Disciplinary Case Conference. Nor did the police press charges. It is also clear that on occasion these incidences have taken place during periods of high tension between the parties. Further there is no evidence that the father has a psychiatric or psychological disorder which may make him a potential risk to the child. None was detected in the Clinical Psychologist report or in a subsequent note filed by Dr H on behalf of the father dated the 11 October 2017. 31.Further the mother complains about a number of incidences which pre date her leaving B with the father in August 2016. If the mother had been truly concerned that the father was a significant risk to the child, then it is unthinkable that she would do this. The mother’s explanation that she had hoped that the father would change and that the incident on the 26 September 2017 was the last straw, is a little difficult to accept in the circumstances. Again it is of note that this incident took place in the middle of a major row between the parties. Tempers were clearly running very high at the time – on both sides. The father lost his temper and in the heat of the moment he lashed out and slapped B. This was the last major incident and it occurred over two year ago. 32.When the mother asked the father why he had not complied fully with his undertaking to the ACA not to use corporal punishment, the father replied that he had given an undertaking and that he had restrained himself, but that there had been a couple of occasions when he had not been able to withhold his reaction. I accept what he says in this respect. Further it is clear that he has taken this issue seriously and sought to educate himself on effective parenting methods and has attended various forms of counselling. He also says, and I would accept what he says in this respect, that it is not possible to change one’s behaviour overnight. 33.It is also of note that the father has taken B away on holiday, without the mother on frequent occasions in the past. Conclusion 34.Given all of the above it seems to me that the father does not pose a significant risk to the child and that he should have regular overnight staying access with her including holiday access. The order 35.Consequently an order will be made as follows:
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Cases cited in this judgment
Further hearings and rulings under FCMC 13330/2017