G, Dv also known as Dl.V v. Gvna also known as Vna. G
Read the full judgment text of FCMC 7518/2017 on BabelCite. This Family Court judgment was delivered on 11 March 2021 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Child custody – Care and control – Shared care – Term time arrangements – Best interests of the child – Alternating weekends vs split weekends – School bus logistics – Social welfare report – District Court – The court determined the appropriate care arrangement for the 9-year-old daughter AG during term time. The mother proposed a 2:2:5:5 shared care regime with alternating weekends, while the father proposed a 3:4 split with shared weekends. The court held that alternating weekends was more beneficial for the child given her age and bonding with both parents. The school bus company refused alternating schedules, so parties were directed to arrange transport. No order as to costs was made.
Legal issues: Care and control arrangements during term time
Outcome: Care of AG shared on 2:2:5:5 basis during term time with alternating weekends.
Cited by 1 case · Cites 3 cases
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FCMC 7518/2017 [2021] HKFC 55 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 7518 OF 2017 ----------------------------
------------------------ Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Date of Hearing: 16 and 18 September 2020 Date of written closing submissions: 14 and 19 October 2020 Date of Judgment: 11 March 2021 ---------------------------- J U D G M E N T (The appropriate split of time during term time and other directions) ---------------------------- Introduction 1.This trial was set down in order to determine the day to day care arrangements for the youngest child of the family, AG, a girl who is now aged 9, having been born on the XX August 2011. Custody is not in dispute and the parties enjoy joint custody of AG by virtue of a court order dated the 24 November 2017. They also have interim shared care of her in that the Petitioner mother has the care of AG from after school each Thursday until Saturday evening at 8:00 pm during term time (2 nights). AG is in the care of the Respondent father otherwise. The arrangements for the school holidays are agreed and are set out in the court order dated the 12 June 2018. In addition, the parties have also reached an agreement with respect to the elder child of the family, a son called CG, who was born on the XX October 2004 and is now aged 16 years. The parties have joint custody of CG with care and control to the mother and reasonable access to the father. Thus the only remaining issue between the parties, from the courts perspective, relates to the day to day care arrangements for AG during term time. 2.In gist, the mother wishes to share the care of AG more or less equally on a 2:2:5:5: basis. She is particularly keen to alternate the weekends as opposed to sharing them. The father for his part, made a concession on the first day of trial and he is now willing for AG to be cared for by the mother from after school on Wednesdays until Saturday at 8:00 pm. He wishes to continue to split the weekends so that he can spend all day on Sunday with AG. Thus he proposes that the weeks be split during term time on a 3:4 basis. Although the father had intimated previously that he might wish to relocate with AG back to the Philippines, he ultimately decided not to proceed with that application as he did not wish to relocate immediately. Background 3.The solicitors for the mother summarized the background in brief as follows:
4.In addition, it should be noted that the decree nisi was granted on the 30 November 2017 and that the decree absolute is pending the s.18 declaration. The issues 5.There is then only one outstanding issue to be determined by the court namely how should the care of AG be shared during term time? The law Custody, Care and control, joint care and control/shared care and access 6.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. 7.Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that
8.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:
9.For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that
10.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. 11.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:
Discussion 12.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 both social welfare reports, the first dated the 7 November 2017 and the second dated the 24 February 2020. Each party’s open proposals The father 13.The father said on the first day of trial that he was willing to accept the recommendations made by the Social Welfare Officer namely that the
The mother 14.The mother for her part set out her open proposals as follows:
The Social Welfare officer’s reports 15.There have been two reports filed, the first dated the 7 November 2017 and the second updated report dated the 24 February 2020. 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. As will be seen I only agree with Ms L’s recommendations in part in this case. 2nd Social Welfare Report dated the 24 February 2020 16.As stated above the Social Welfare Officer, Ms L recommended that AG spend one extra one day per week with the mother, which she said was more in keeping with the child’s own wishes. In her report she stated inter alia as follows:
17.On a plane reading of these paragraphs it seems that AG’s views have changed according to which parent she is with and that she is keen to please both of her parents. I would though accept that it is clear that she wishes to spend more time with her mother. Other than that I do not think that it is possible to place too much reliance on her stated views. 18.Ms L also reiterated in the witness box, that if the father did not seek to relocate back to the Philippines, then it would be possible theoretically for AG to split her time half - half. She also stated that the child had been clear that she wished to spend more time with the mother and that she thought that this was reasonable. When asked by the father whether it was more beneficial for a 9-year-old child to share a weekend with the parents or alternate them, she said that it was an option to alternate them, but that this might not necessary if the 3:4 split remained in place. How should the care of AG be shared during term time? 19.I should say at the outset that the difference between each parties’ proposal is very small and that each has something to recommend it. It really boils down to whether AG’s weekends should be split or whether they should be alternated. 20.Generally speaking, as a child gets older there is a tendency for weekends to be alternated by the courts as opposed to the weekends being split. This is because it is considered to be beneficial for a child to be able to have extended time with each parent and to do things which may not necessarily be possible if the parties only have one day each at the weekends. Also, although younger children may struggle with spending too long away from their primary attachment figure, that tends not to be the case as a child gets older. Here it is clear that AG is securely bonded with both parents and that she has no difficulty in moving between the two households. 21.The father wishes to have all day Sunday with AG as that is his dedicated day off, although in the witness box he also confirmed that he does not have to work on Saturday. However, Sundays are important to him and he and AG have a set routine which includes Church attendance. Whilst I accept that this is beneficial for AG I also accept that in reality the mother does not get a full day (i.e. 24 hours) with the child over the weekend. The parties also live a long way away from each other, which means that in reality AG has to start to get ready to go back to her father’s at about 5:00 pm on Saturday. I accept that on Friday she is quite tired and that she also needs to do some homework on Saturday which means that in reality there is very little time left for doing anything “fun”. I also accept that it is important for her to spend extended periods of time with her elder brother, notwithstanding the difference in their ages. A full weekend would allow this to be more easily facilitated. Further the mother should also have the ability to take AG to her own Church from time to time. Church going should not be within the exclusive purview of the father. 22.It also seems to me that both parties should be responsible for the weekend homework. The father is of the view that AG should be able to do her homework on a Friday and he “requires” the mother to ensure that her homework is completed before AG returns to him. The mother does not agree with this arrangement and in particular she does not agree that the homework needs to be completed on a Friday evening. I tend to accept what she says in this regard. In any event, if the weekends are alternated both parties will need to make arrangements to ensure that AG does her homework at some time over the weekend, whilst she is in their care. I accept that CG is able to help AG with her homework and in particular with her Chinese homework. It is acknowledged by both parents that AG is weakest in Chinese and Math. 23.Overall then it seems to me that it would be more beneficial for the care of AG to be shared on a 2:2:5:5 basis as suggested by the mother. I do not fully accept the recommendation made by Ms Li for all of the reasons that I have elaborated upon above. I do, however, agree with her that this is an appropriate case for a shared care arrangement. Longer term however, it seems to me that it would be more beneficial for AG to alternate her weekends as opposed to splitting them. The school bus 24.An issue arose during the trial about the school bus and whether or not the school bus company would be able to accommodate the arrangement proposed by the mother. To that end leave was given for a joint letter to be sent to the school bus company after the trial and for their response to be provided to the court in due course. To that end it is of note that a joint letter was sent to the school bus company on the 25 September 2020. On the 5 October 2020 they responded as follows:
Although this is unfortunate and I am sure that AG has enjoyed travelling on the school bus in the past, I do not consider that reason enough to alter the 2:2:5:5 arrangement, especially as the father has already agreed that AG should spend Wednesdays with the mother. Consequently, it is further directed that each party shall be responsible for arranging transport to school when AG is in their care. The father and the mother in the witness box and generally 25.When considering matters of this nature the court is charged with assessing the character of both parties in the witness box. I should say at the outset that both parents struck me as being good parents who only want what is best for AG. They struggle however, in that their day to day interactions are strained and they do not appear to have developed a functioning co-parenting relationship. I accept though, that they are both able to provide AG with a loving and secure home. 26.I also had the ability to see the mother’s cohabitant, Mr. B, in the witness box, who also appeared to have a good relationship with the children (notwithstanding a recent hiccup with CG). Generally, I accept that he is a positive influence in the mother’s household and that he provides valuable support to her. Mr. B confirmed that it was their intention to get married in due course, once the mother had obtained her decree absolute. Conclusions and order 27.Having considered all of the above therefore, I shall make an order as follows:
Ms. Nicole Choo of Messrs Chiu & Co appeared for the Petitioner mother The Respondent father appeared in person | ||||||||||||||||||||||||||||||||||||||
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