Kwfcj v. Sicl
Read the full judgment text of FCMC 4500/2012 on BabelCite. This Family Court judgment was delivered on 23 June 2020 before Deputy District Judge R So.
Matrimonial Causes – Variation of Care Arrangement – Best Interests of the Child – District Court – FCMC 4500/2012 – Petitioner (Father) applied to vary existing care arrangement for son aged 10 due to academic demands and parental conflict causing son's distress – Respondent (Mother) opposed, initially sought 50/50 care then proposed more time for herself – Social Investigation Report recommended Father have care and control, Psychological Report did not support variation – Court found current arrangement not working, high conflict impacting son's wellbeing and health (eczema) – Court held son should stay predominantly at Father's home during weekdays to ensure stability and academic support – Mother granted defined access including Wednesday dinner – Holidays and special occasions agreed by consent – No order as to costs – Key factors included son's wishes, expert evidence, parental cooperation, and practical care arrangements.
Legal issues: Whether there should be a change to the current care arrangements · If there should be a change, what kind of change
Outcome: Care arrangement varied; Son to stay predominantly at Father's home during weekdays.
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FCMC 4500/2012 [2020] HKFC 127 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO 4500 OF 2012 ________________________
________________________ Before: Deputy District Judge R So in Chambers (Not open to public) Dates of Hearing: 13, 14, 15, 16, 20 August 2019 and 10 September 2019 Date of Judgment: 23 June 2020 ________________________ J U D G M E N T (VARIATION OF CARE ARRANGEMENT) ________________________ Preliminaries 1.By consent, the custody matter of the child of the family (“Son”) was agreed by the Petitioner (“Father”) and the Respondent (“Mother”) on 13 November 2012 (“2012 Order”). The parties were granted joint custody, care and control of the Son. 2.By the order dated 25 September 2015 (“2015 Order”), it was ordered, inter alia, that the care arrangements of the Son be varied to as follows :-
3.The Father applied by way of summons (“Summons”) for, inter alia, variation of the 2015 Order in relation to the care arrangement of the Son, who was 10 years old at the commencement of this trial and shall be promoting to Primary 6 in a primary school which is academically demanding. In the Summons, the Father asked that the Son be in the care of the Mother with details as follows :-
4.The Father also applied for other relief in the Summons, which had subsequently been dealt with. The only outstanding matter for the determination of the Court in this trial is in relation to the application for variation of the care arrangement of the Son. 5.The Mother could not agree to the Father’s application. A Children’s Dispute Resolution had been conducted. No agreement could be reached, and the case had been adjourned for trial. Even a few days before the trial, the parties had attempted mediation, but no agreement could be reached. Background 6.The Father and the Mother were married in November 2005. In 2008, the Son was born. The Father petitioned for divorce on 30 March 2012. 7.The parties had reached agreement during a mediation conducted in September 2012. Subsequently, by consent, it was ordered in the 2012 Order that joint custody, care and control of the Son be granted to the parties. 8.By another order by consent, the parties had entered into a full and final settlement of all ancillary matters, with the terms embodied in the order dated 6 March 2013. 9.Decree Absolute was granted on 7 May 2013. 10.In March 2015, the Father re-married. His present wife (“Step-Mother”) is a home-maker. 11.By the 2015 Order, the care arrangement of the Son was varied, with details referred to in paragraph 2 above. In addition, it was also ordered that :-
12.In February 2017, the Son’s younger brother was born (“Step-Brother”). 13.Before and after the Summons was taken out, there were various summonses taken out by the parties, including the applications for temporary removal for holidays and applying for passport for the Son. 14.On 30 October 2017, amongst other directions given in relation to the arrangement for temporary removal for holidays, it was ordered in paragraph 3 therein that “For the avoidance of doubt, [Son] shall have the right to initiate any telephone or video calls to the other parent as he wishes”. 15.On 10 January 2018, the Summons was taken out by the Father, asking for varying the care arrangement of the Son. 16.Subsequent to the taking out of the Summons, it was ordered on 21 August 2018 that the case be adjourned for a Children’s Dispute Resolution hearing. The Court also ordered that the 2015 Order be varied to the extent that the Son be under the care of the Father on Tuesdays from after school to 6:30pm when the maid will return him to the Mother’s residence. The parties have also agreed on 2 undertakings which were embodied in the order, as follows :-
17.By the same Order of 21 August 2018, the Court also ordered, by consent, that (a) a parent co-ordinator be appointed to assist the parties with matters relating to the Son; and (b) the Son do have therapeutic counselling with a child psychologist. 18.As a result, a parent co-ordinator was appointed. 19.On 19 October 2018, it was ordered by consent that a clinical psychologist referred by the Social Work Officer be appointed to provide therapeutic counselling for the Son. The Son has had monthly sessions with a government clinical psychologist since 17 January 2019, who would only focus on giving therapeutic counselling to the Son and will not deal with any care and control or parenting issues or provide any report. The Father’s case 20.The Father has filed 2 affidavits for this application, namely the 8th Affidavit and the 10th Affidavit. 21.It is the Father’s case that the relationship between the parties has always been strained, which has become more so since the Father remarried in 2015 and the Step-Brother was born in 2017. The Father is of the view that the Son is caught in the middle of the conflict and exposed to the Mother’s negative feelings towards the Father and his new family. 22.The Father explains that the Son has just finished Primary 5 at a prestigious primary school which is very demanding academically. He has to complete a great deal of homework after school and requires assistance to do so. 23.The Father is of the view that when the Son is in the Father’s home, the Son has much back up and assistance in doing his homework after school from the Step-Mother and also the paternal grandmother, who is a retired teacher and is available whenever she is needed. The Father clarified that while it is no criticism of the Mother as she has to work, the Son does not have such back up or assistance in her home and the Son clearly struggles with that. 24.The Father further explains that schooling is one recurring issue but the parents’ parenting styles are so different that they often have arguments over matters such as the Son’s bedtime, rest time, medical treatment, even the recent removal of his braces at the dentist was not without difficulty when the same consent form had to be signed by both parties. 25.The Father explains that he has experienced a lot of problems with telephone or video calls with the Son, despite the provision in the Order dated 30 October 2017 that the Son shall have the right to initiate any telephone or video calls to the other parent as he wishes. The Father explains that he had to seek the Court’s assistance to procure the Mother’s undertaking to facilitate the Son’s communication with the father with a reciprocal undertaking initiated by the Father. (the undertaking referred to in paragraph 16 above). 26.The Father’s position is that everything possible must be done to help the Son, particularly at such a crucial time for him, in terms of his academic development and because he is entering adolescence. The Father does not believe that the current arrangement is beneficial, as it has been in place for the last few years and it is clearly not working for the Son. 27.Mr Rattigan, Counsel for the Father, submits that the Father proposes the following care arrangement for the Son :-
28.Ms Rattigan submits that an alternative proposal, which is more similar to the existing care arrangement, is suggested by the Father in the event that the proposal above is not accepted by the Court, with the major care arrangements as follows :-
29.The Father believes that changes to the existing care arrangement will help introduce more consistent parenting and it will reduce the conflict, regular arguments and disagreements between the parties. The Father is of the view that this will also help improve the Son’s emotional condition and his eczema incidences as there will be less opportunity for him to be caught in the middle of this parent’s conflict. 30.The Father emphasises that he has no desire to cut the Mother’s time with the Son, as he just wants to ensure that the best arrangement possible for the Son is put into place for the term time care arrangement at this crucial time for the Son and for going forward. The Father explains that he is committed to adopt some flexibility in the care arrangements such as allowing the Son to have an extra dinner with the Mother on weekdays whenever the Son wishes, and when he does not have much homework and/or revision. The Mother’s case 31.The Mother has filed 3 affidavits to oppose the Father’s application, on 26 March 2018 (“1st Affidavit”), 9 April 2018 (“2nd Affidavit”) and 29 April 2019 (“3rd Affidavit”) respectively. 32.The Mother opposes to the Father’s application and proposals. The gist of her opposition is that the Father’s proposals suggest that the Son spending more time with the Father, which means less time with the Mother, is detrimental to the Son. 33.The Mother, in her opening submissions, is of the view that she “strongly believe and insist that [Son] at present need both parents with joint custody, joint care and control (50/50) with the care arrangement ordered 25 September 2015”, with the main reasons summarised as follows :-
34.To summarise, the Mother “believes that joint parental responsibilities, joint care and control (50/50), joint custody is very significant for the [Son]’s wellbeing. The Son also feels confident and will grow in his self-esteem when he has both parents’ time, love and support.” 35.During the giving of evidence, the Mother emphasises that joint custody with joint care and control, with each parent each having half of the time in the care of the Son is important. She also asks the Court to consider parallel parenting. 36.In the Mother’s closing submissions, her stance has changed. Instead of insisting for equal share of the time between the parties, she proposed the following care arrangement :-
37.The Mother concludes in her closing submissions by commenting that the Social Investigation Report has failed to take into consideration of the Son’s and the Mother’s relationship and bonding. The investigation has not focused on how the Father’s new proposals can damage the Son’s trust and the consequences that will arise when the Son’s time with the Mother is reduced. 38.The Mother submits that the focus should not be on parental differences, but on the Son’s best interest and on his relationship and bonding with his parents. Whatever steps the parents take should be for the protection and wellbeing of the Son. 39.The Mother denies the accusations against her alleging that she has not been co-operative. She is of the view that the accusations are untrue, and are created and fabricated for the purpose of the trial. 40.The Mother emphasises that she is able and capable to look after her Son well with more responsibility and care. The bonding between the Son and his maternal grandparents, uncle and cousins should not be undermined as well. Evidence 41.Both the Father and the Mother gave evidence during the trial, and no other factual witnesses were called. 42.Ms Wan, the Social Work Officer, gave evidence in Court and relied on her Social Investigation Report dated 7 August 2018 as evidence in chief. 43.Dr. Leung, the Clinical Psychologist, gave evidence in Court and relied on her Psychological Report dated 23 July 2018 as evidence in chief. The legal principles 44.In relation to the application for varying orders for custody, care and control and access of a child, it is stipulated in section 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, which states that :-
45.The general legal principles governing such applications are set out in s. 3 of the Guardianship of Minor Ordinance, Cap. 13, which states that :-
46.In addition, reference is also made to the “welfare checklist”, with some of the items mirror the checklist to be found in the English Children Act 1989. Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdiction, there are a number of factors, which generally speaking need to be taken into account or considered, when determining children matters. The “welfare checklist” is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating, inter alia, the care and control and also access matters, and the best interests of children generally. The checklist includes the following factors :-
47.I will consider those factors that are relevant. However, I do not intend to go through them point by point. Instead, I shall make general reference to some of the most relevant ones in my consideration. Analysis of evidence 48.The parties have confirmed that there are no specific factual issues for the Court’s determination, and the Court is required to consider all circumstances of the case and all relevant factors, and to consider in the best interest of the Son, what the care arrangement and the holiday arrangement should be. 49.As the parties have eventually agreed on the arrangement for school holidays and special occasions during the hearing of closing submissions, which they had subsequently filed a consent summons setting out the agreements, the only issue for the Court’s determination is the care arrangement for the Son. The agreement on school holidays and special occasions is annexed at the end of this Judgment. 50.I remind myself to regard the best interests of the Son as the first and paramount consideration and in having such regard, I shall give due consideration to (a) the wishes and feelings of the Son (having regard to the age and understanding of the Son, and to the circumstances of the case); and (b) all material information, including the Social Investigation Report and the also the Psychological Report. About the Son’s wishes and feelings 51.Ms Wan had interviewed the Son and she had included in her Social Investigation Report about the Son’s view in paragraphs 36 and 37 :-
52.According to the Psychological Report, Dr. Leung reported in paragraph 9.8 of her Psychological Report that the Son “was aware of his right to speak directly to the Judge to voice out his wish. However, his stated wish to stay with the Father everyday does not appear to be a well-thought out solution. It fails to meet his expressed need to stay peacefully between the Parents.” 53.There was a Meeting with the child conducted, with consent from both parties, and with the Social Work Officer having confirmed that it was the Son’s wish to meet the Judge. I have reminded myself the purpose of the Meeting was not to gather evidence from the Son. It was for the Court to listen to the views of the Son and to enable the son to gain some understanding of what is going on and to be reassured that the Judge has understood him. 54.Pursuant to the Practice Direction PDSL-5, before the start of the meeting, I have explained to the Son that a recording of the meeting is to be kept and that the contents of the meeting will be conveyed to the parents. The Son was also explained that the final decision of the dispute is in the Judge’s responsibility alone and the Judge will arrive at that decision after considering all relevant factors. The Son was assured in clear terms that the outcome is never his responsibility. 55.The Son initially expressed his views hoping to stay at the Father’s home and then said he would also like to stay at the Mother’s home. The Son also expressed his feelings that he did not like to see professionals and to be asked about his views. 56.What shocked me were the questions asked by the Son. He asked whether the parents will know about the conversation with the Judge and when the parent would be informed of the conversation. 57.I am of the view that the Son has reached the age and maturity of expressing his views. However, at the same time, I am of the view that the Son is mature enough to realise the effect of his parents knowing how he expressed his views, and he did not express freely to the Judge, knowing that what was said to the Judge will be conveyed to his parents. 58.I have not lost sight of the worries from Dr. Leung that the Son’s stated wish to stay with the father “does not appear to be a well-though out solution”, though that was an expressed view and feeling stated by the Son. Social Investigation Report 59.In relation to the Social Investigation Report, Ms Wan, the Social Work Officer, summarised her views in paragraph 38 therein that :-
60.Ms Wan made the following recommendations :-
61.In view of the recommendations of Ms Wan, both parties have agreed not to ask for the traditional approach of care and control to one parent, with access to the other parents. Both the Father and the Mother agrees that they wish to keep the sharing of the care of the Son, and asking for the Court’s determination of whether the care arrangements of the Son are to be varied. Psychological Report 62.Dr. Leung, the Psychologist, had made a Psychological Report, pursuant to the order of the Court. She had interviews with the Father, the Mother and the Son, and had home visits to both the Father’s home and the Mother’s home. 63.Dr. Leung has summarised the conditions of the Son in various paragraphs in her Psychological Report, including :-
64.In view of the Father’s application by way of Summons, Dr. Leung’s view is summarised in paragraph 9.15 of her report :-
My views 65.In gist, the Social Work Officer supports the Father’s application to vary the care arrangement, while Dr. Leung, the Clinical Psychologist, does not support the Father’s application. There are conflicting views of the 2 experts. Not surprisingly, the Father relies heavily on the Social Investigation Report, while the Mother relies heavily on the views of the Psychological Report. 66.I have identified the following that are not in dispute by both the Social Work Officer and the Psychologist :-
67.I am of the view that it is in this factual scenario that I have to consider and make a ruling on the following questions :-
Whether there should be a change to the current care arrangement 68.The Father is of the view that as the current care arrangement is not working and there should be a change in the interest and welfare of the Son. 69.The Mother acknowledges that there are problems existing, but she is of the view that changing as per the Father’s application and subsequent proposals would not help. 70.To describe more accurately the Mother’s position as I understand, she is of the view that changing to the Father’s proposals are not accepted. There could be changes, but should be changing to going back to the 2015 Order, ie. instead of the Father having more time with the Son, there should be equal sharing of the time for care arrangement of the Son, as the Mother has repeatedly stated in her opening submissions and also when she gave evidence at trial. 71.Subsequently, the Mother changed her position and submitted that if equal sharing of the time is not accepted by the Court, the Mother should be the one having more time with the Son. The Mother stated her proposals in her closing submissions, which I refer to in paragraph 36 above. 72.The Mother substantiates her case by relying on Dr. Leung’s Psychological Report, in particular, paragraph 9.9 :-
73.Dr. Leung does not support the Father’s application. 74.In the Psychological Report, Dr. Leung had suggested : -
75.The Mother suggests and explains in detail when giving evidence that even if there are problems and conflicts, they should not prohibit the parents having equal time with the Son. In particular, with cases of high conflict, parallel parenting could be considered, so that each of the parents could have different and separate parenting styles, with each of the parents not trying to change or interfere with each other. 76.From the Mother’s evidence, I notice that during cross-examination she denied that there are “conflicts” or “problems” or such serious “conflicts” or “problems”, especially after Social Investigation Report and the Psychological Report. However, considering all the evidence as a whole, including parties’ cross-examination and the answers under cross-examination, I accept that after obtaining the Social Investigation Report and the Psychological Report, there are still much conflicts and problems in various aspects regarding the taking care of the Son, apart from daily routine of handover and daily schedule arrangement, such as handling school and homework matters, tutor lesson arrangement, arranging medical appointment, communicating the diagnosis and the medication to be taken after seeing a doctor, signing medical consent form etc. I also accept that the relationship and communication between the parties had not been working well and the arrangements for the Son had been inflexible. I accept that all these eventually have an impact on the Son, causing him stress and possibly his eczema condition. 77.I can see the strength of the evidence of Dr. Leung. I agree, in particular, that simply changing the time to be spent with the parents cannot solve the complex problem. All parties, including the Father, the Mother and the Step-Mother all has a role to play. 78.I have also considered Dr. Leung’s evidence in Court, saying that in general, a child’s potential in adopting to 2 different styles of parenting cannot be undermined. 79.However, I have not lost sight to the observation from the Social Work Officer, who has summarized the views of the Son in her report (which I have quoted in paragraph 51 above). 80.I have also considered the background of the case. It is not the case that the parents have not tried sharing the care of the Son before. The joint care and control, and sharing of the care time of the Son had been in place since the 2012 Order, and subsequently varied by the 2015 Order. Since then, the Son had been moving in between 2 homes during weekdays. 81.I accept the Social Work Officer, Ms Wan’s evidence and the accuracy of her record in her Social Investigation Report, especially in relation to the views and feelings of the Son. Her evidence is clear and direct and after considering her evidence and the cross-examination from the Mother, I am of the view that the evidence of Ms Wan is comprehensive. I accept that she has made the recommendations after careful and due consideration of all the relevant factors and circumstances of the case. As a result, I place much weight to her evidence, analysis and recommendations. 82.In the past when the parties were sharing almost half of the time with the Son, when their styles were so different and much conflicts had been caused, they were almost like parallel parenting, with each having his/her own view and style in parenting the Son. Much conflict has been caused, and the Son has been caught in between. With some minor variation of the care arrangements of the Son, problems could still not be solved. Obviously, the existing arrangements have not been working well. 83.I am of the view that parallel parenting is fact sensitive. With the background of the Son and the parties of this case, with the Son’s academic background and the expectations from both his parents about his schooling and education, if the Son is to continue studying at the secondary branch of the same school, or similar secondary schools which is demanding academically, what tutorial lessons to attend, which extra-curricular activities to choose etc will continue to be a problem. I have reservation and doubts whether the Son could cope with each of the parents having a different and separate style of parenting, including different time schedules of daily routine, study plan, lesson and tutorial arrangements etc. In view of the facts of this case, if the Father and the Mother disengage and not co-operating or communicating to work things out, I do not think this is in the best interest of the Son. 84.I am of the view that in the best interest of the Son in this case, instead of each of the parents adopting his/her own parenting style, the parents should co-operate and should continue co-operating. 85.Having considered all the points, I am of the view that if there is no change at all, or if the Mother is insisting on 50/50 equal share of the time of care with the Son, that would not help at all. 86.As shown in the proposals of care arrangement of the Mother in her closing submissions, she no longer insists on equal sharing of the care time of the Son. I am of the view that after hearing evidence, the Mother understands that it is not practical or beneficial to the Son to insist on equal sharing of time between parents and the Mother understands that the current arrangements are not working well. From her proposals in her Closing Submissions, the Mother accepts the Son residing predominantly in one home during almost all weekdays. The questions still in dispute are which home the Son should stay predominantly during weekdays and the exact time for handover between parents. 87.In my view, I agree that simply changing the time to spend with the Son would not help. Everyone has to work hard and there should be a change of attitude as well, as to how the adults view and treat each other. However, with the facts of this case, parties having time in the past to communicate and to try to work things out, with all the professional help sought, either on their own initiation or under the Court orders, there are still problems causing distress to the Son. In the interest of the Son, I am of the view that the present care arrangements have to be changed. What the change should be and what the care arrangement should be 88.The next question is, what the change should be and what the care arrangements should be. 89.In view of the background of the case, with the views expressed by the Son of the difficulties in moving between homes during weekdays, and in view of the life style of the parties, I am of the view that the Son stays predominantly at one home during weekdays is in his best interest. 90.However, I have not lost sight of the need to maintain the bond with the other parent whom the Son will not stay with predominantly during weekdays and the views of both parents hoping to share the care of the Son, instead of the traditional approach of care and control be granted to one parent and access be granted to the other parent. 91.I notice that arrangement of the Son staying predominantly with one parent during almost all weekdays is in fact agreed and suggested by the Mother in her closing submissions (details of her proposals summarised in paragraph 36 above). 92.The question I have to rule is, whether the Son should predominantly stay at the Father’s home or the Mother’s home during weekdays and what the exact care arrangements should be. 93.The Mother relies on the evidence of Dr. Leung, who is of the view that the Son feels more relaxed at the Mother’s home, while he feels “寄人籬下” (under the roof of others) at the Father’s home. Paragraph 9.9 of the Psychological Report is especially relied on (with details referred to in paragraph 72 above). The Mother is of the view that she, together with the support by her parents, could take care of the Son well and asks that the Son stays predominantly at her home during weekdays. 94.Without disrespecting the expertise of Dr. Leung, I do have reservation as to the conclusion of Dr. Leung and whether much weight should be put on her evidence for the following reasons. Dr. Leung had not read any of the Court papers of the case after her report was filed on 23 July 2018 and she had not seen the parties’ narrative affidavits filed prior to the trial. I am not sure whether her understanding of the case is comprehensive. Her expression that the Son feels “寄人籬下” (under the roof of others) was made towards the end of her giving of evidence in Court, not in her Psychological Report. 95.Dr. Leung’s tolerance of the Mother’s behaviour seems unreasonably high, which has caused some concern of the Court of how much weight to be put on her evidence. When Dr. Leung was cross-examined of her view that the Mother told the Son that his Father no longer wanted him, Dr. Leung’s answer was “understandable”. When put to Dr. Leung that this was a terrible thing to say to a child, her immediate response was that the Mother “was not aware” of how terrible this was. She was then asked if she agreed that this was not putting the Child’s interest first. Dr. Leung agreed but immediately qualified this by saying that it was “understandable as the Father had abandoned her”. 96.Dr. Leung was asked about her report that the Mother “admitted that in the last 2-3 years, whenever she got provoked by the Father, she released her frustration on [Son]”. This was something of concern and Dr. Leung was asked how the Mother released her frustration on the Son. It was surprising to learn that Dr. Leung had clearly not explored this further with the Mother. She said it probably meant “scolding, expressing her anger”. When Dr. Leung was asked if the Mother said how often she did that, Dr. Leung’s evidence was “I didn’t ask. Probably when the Father provoked her”. Ms Rattigan suggested that Dr. Leung seemed to have automatically assumed that the Mother taking her anger out on the Son could be blamed on the Father. 97.Another reason why there is concern from the Court is related to the 2 drawings of the Son, which was drawn by the Son during the interview with the Social Work Officer, marked as exhibit P1 and P2. When Ms Wan gave evidence, she produced the 2 drawings, which shows what the Mother has done (eg. in threatening that she may call the police if the Son continues crying and in rushing the Son to hang up the call with the Father) and how the Son felt (fear and nervous). 98.P1 and P2 were shown to Dr. Leung during cross-examination and she said she found it “totally unbelievable” that the Mother would do what the Son had described. Dr. Leung appeared to believe that the Son had done the drawings for Ms Wan after she and Ms Wan had conducted their assessments, had spoken briefly and that the Son could have been influenced by the Father. It was the evidence of Dr. Leung that :-
99.The facts of the case were, when the Son made those drawings during the interview by Ms Wan, it was in her office on 8 June 2018. The Son’s meeting with Dr. Leung was on 15 June 2018, which was after the drawings were made. Therefore, there is no way that either the Father or Ms Wan could have “influenced” the Son as a result of knowing that Dr. Leung did not support the Father’s application. 100.Dr. Leung stated in her report that while the Son described the Mother as fierce, “he failed to cite any episode to support this description”, which she seems to maintain when giving evidence in court. I accept the submissions from Ms Rattigan that it is quite clear from this that the Son did not open up to Dr. Leung in the manner that he did to Ms Wan, whom the Son first met. It was possible that the Son simply did not repeat what he had told Ms Wan to Dr. Leung. From viewing the content of P1 and P2, I am of the view that what the Son described to Ms Wan and drew for her in P1 and P2, a week before the meeting with Dr. Leung, would be regarded as an example of the Mother being “fierce”. Ms Rattigan submits that Dr. Leung seems to have missed an important aspect of how the Son feels about the Mother and their tense relationship at occasions (while knowing the stress and difficulties the Son has been facing, as summarised in paragraphs 9.2 to 9.7 of her Psychological Report), which I tend to agree. 101.When giving evidence in Court, Dr. Leung eventually accepted that if the events occurred as drawn by the Son in P1 and P2, that would be very bad indeed. Under cross-examination, Dr. Leung also accepted that what the Mother said to the Son, as reported in paragraph 37 of the Social Investigation Report (with details refer to paragraph 51 above) was inappropriate. When being asked if Dr. Leung agreed that it showed that the Mother was not putting the Son’s interests first, she said that she agreed, but she further added that the behaviour of the Mother could be “an oversight”. 102.It is not acceptable to tell a child that their parent no longer wants him/her. It is not acceptable to make a child feel responsible for the security of a [maid]’s job or the home and financial security of a parent. It is not acceptable to try to interfere in a child’s relationship with the other parent or to threaten a child with calling the police on them. Ms Rattigan submits that the Mother has done all those and is clearly not putting the Son’s best interest with priority. 103.The Mother explained that she might not have been perfect in all aspects. She is improving and she will further improve in future. While I have no doubt of the love of the Mother towards the Son and her willingness to improve for better for future, the facts remain what happened in the past had an impact on the Son, and that Dr. Leung by commenting that those behaviour of the Mother as “understandable” or “an oversight” or “not believed her capable of it”, had raised concern of the Court of how much weight should be put on Dr. Leung’s evidence of her views towards the care arrangements of the Son. 104.In considering whose home the Son is to stay predominantly during weekdays, I have considered parties’ submissions and all the evidence. I have also considered the following :-
105.Having considered parties’ submissions, all the evidence as a whole, the Son’s wishes and all the reports concerned, and with the best interest of the Son in mind, I am of the view that the Son should stay predominantly at the Father’s home during weekdays. Considering how predominantly the arrangement should be, I have to balance the emotional needs of the Son and the need to spend much time with the Mother at the same time. 106.I am of the view that the Son should stay mainly at the Father’s home during weekdays, on rotation of Week A and Week B. The time the Son be in the care of the mother be as followings :-
107.In addition, the Son should have no less than one dinner with the Mother during weekdays, in order to maintain the bonding of the Son and the Mother. With the best interest of the Son in mind, I am minded to encourage the parties to be flexible in which day(s) of the week to have dinner and the exact time for dinner, bearing in mind the Son is entering secondary level of education and the amount of school work is uncertain. 108.As it is the Father’s stance that he is committed to adopting some flexibility in the care arrangements of more time for the Son with the Mother during weekdays whenever the Son wishes, allowing flexibility could be beneficial. However, more stress could be caused to the Son in parties trying to ascertain the wishes of the Son. 109.Therefore, I would order that the Son has dinner with the Mother on Wednesday, from 7:30pm to 9:30pm, if no agreement could be reached between the parties about which day(s) and the dinner time duration during weekdays. 110.I am of the view that the Mother can access the Son through Facetime or Skype or any other video/audio link using the mobile phone when the Son is at the Father’s home. I have considered the Mother’s proposal in this regard in her closing submissions (referred to in paragraph 36 above). I notice that, in fact, this had been agreed by the parties and ordered in :-
111.I am not minded to order how many times in a day the son should be contacted by mobile phone or the duration of the call. Flexibility should be given in view of the Son’s age, needs, views and feelings. Therefore, no order will be given in this regard. But I encourage and expect parties to be more sensitive, considerate and understanding of the Son’s needs and wishes, in view of this mode of communication with the Son. Observations 112.At the closing submissions, both parties have confirmed with me the following :-
My understanding is, both the Father and the Mother are willing to continue co-operating and working hard in future for the best interest of the Son. 113.Having made the ruling and analysis for this case, after consideration of all the circumstances of the case and having the best interest of the Son in mind, I have to say that there is no perfect arrangement for a child. Both parties may feel aggrieved with the Court’s ruling. But this is the reality the parties have to face, with the time with the Son, shared with the other parent in a divorce family, much less than the time with the Son during marriage. The parties are encouraged to focus not on what each of them wants from the Son or wants from the Court, but focus on the needs of the Son from his perspective and what is at his best interest, especially at this dynamic stage of entering adolescence. 114.With my ruling, challenges ahead are still anticipated, and co-operation and communication between the parties in future are expected. In my view, relationship building and bonding with the Son does not based solely on the time spent. Quality time spent with the Son and providing a peaceful and harmonious environment whichever parent the Son is spending time will, with the co-operation and understanding from the other parent, help in maintaining relationship and bonding. 115.I do find some useful paragraphs from Dr. Leung’s Psychological Report, which I am of the view are timely reminders for the Father and the Mother as a way forward, as follows :-
Conclusion 116.Although the parties are in agreement of maintaining the same terminology of joint care and control, I am not of the view that the parties are co-operating to such a high level to justify the order for a joint care and control. I am of the view that a shared care order should be given, with the detailed arrangement set out, varying the previous orders granted. 117.With the reasons aforesaid, I make the following orders:-
Costs 118.As children matters have been involved, I order that there be no order as to costs, including all costs reserved. This is a costs order on a nisi basis, which shall be made absolute within 14 days.
Ms Mairead Rattigan instructed by Messrs. Jonathan Mok Legal for the Petitioner The Respondent acts in person Schedule A For school holidays, the parties agree as follows: - 1. The school holidays of Son such as Christmas / New Year, Chinese New Year and Easter be shared between the Parties more or less equally herein. 2. For the calculation of holidays,
3. (a) Overseas holidays for Christmas / New Year, Chinese New Year, and Easter are to be agreed by the Parties no less than 3 months in advance of the first day of such school holiday unless otherwise mutually agreed.
4. Son should only have one overseas holiday in each of the holidays of 14 days or less, namely Christmas, Chinese New Year and Easter. 5. The parties shall acknowledge that there may be special circumstances such as birthdays, overseas wedding or family engagements in a particular school holiday and if a party seeks to swap his/her holidays with the other party, he or she should do so with no less than 10 days’ notice. The party being consulted should respond within 7 days upon receipt of the other party's request and should not withhold his or her consent unreasonably. 6. The party who will travel with Son is to provide the other party with the flight itinerary, accommodation and contact details not less than 72 hours prior to Son's departure unless otherwise agreed. 7. During long school holidays, Son will continue to have the option of telephone or video access to the non-traveling parent as he wishes. 8. Christmas/New Year
9. Chinese New Year ("CNY")
10. Easter
11. Summer
Schedule B For special occasions, the parties agree as follows:- 12. Son's birthday [date]
13. Mother's birthday [date]
14. Father's birthday [date]
15. Mother's Day
16. Father's Day
17. Father's family's birthday :-
18. Mother's family's birthday:-
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