Aa v. Wsc

FCMC 3096/2020

[2023] HKFC 129

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3096 OF 2020

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JUDGMENT
(Care and Control)

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Introduction

1.This is the trial in relation to the care and control, and access in relation to the three children of the family (“the Children”), namely:

i.     The first daughter, born in December 2007, aged 15 (“SJC”); studying Grade 9 at an international school in Hong Kong;

ii.   The second daughter, born in January 2010, aged 13 (“AJC”); studying Grade 7 at the same campus of the same international school of SJC; and

iii.  The third daughter, born in May 2014, aged 9 (“CJC”); studying Grade 3 at the different campus of the same international school of SJC.

2.The petitioner (“Mother”) is now aged 46 and usually works from home on Mondays and Fridays in an international IT company since 2016. On the other days, she works in the office.

3.The respondent (“Father”) is now aged 50 and commenced employment with a very famous bank as the managing director of a department in February 2021.  

4.Both of the parties were graduated in the very prestigious universities in the USA and they married on 3 July 2004 in Hawaii, the USA.  The Petition was filed on 15 May 2020 and amended by consent on 10 November 2022. Decree Nisi was pronounced on 3 May 2023.

5.According to the Order dated 3 February 2021, I granted joint custody and, without prejudice to the Father’s position, interim care and control to the Mother, with defined access to the Father. In brief, the Children are living with the Mother, and have staying access with the Father from Friday to Sunday on alternate weekends, with additional mid-week ‘dinner’ access.

6.The main feature in this case is that the Father has formed a relationship with a woman (“Madam Li”) during the marriage, with whom he had a son, MC (now aged about 4). They were residing in Beijing until the last quarter of 2021, they moved to Hong Kong.

7.Originally, the Children did not know the existence of MC and the parties had previously agreed to not reveal MC’s existence to the Children until they both received guidance from therapist on how to broach this sensitive topic. The Father’s then solicitor[1] had submitted, during the CDR hearing on 29 July 2021, that the Children were not “psychologically stable” enough to receive the news.  I therefore ordered on 29 July 2021, inter alia, as follows:

“3. The Parties do jointly appoint Katrina Rozga to prepare a brief report on or before 6 August 2021 on the psychological stability of the Children for the existence of their half-brother (MC) to be disclosed to them.”

8.The SIR also recorded that the Father “agreed that the three Children should be informed appropriately, upon professional guidance, that they had a half-brother[2]”. The Mother repeatedly urged the Father to meet jointly with the children’s therapist, Katrina Rozga, to obtain advice about how best to do this.

9.During access shortly after the CDR hearing, the Father unilaterally and suddenly revealed MC’s existence to the Children on about 30 and 31 July 2021, without notifying the Mother in advance of his plan[3].

10.It is undisputed that Madam Li and MC are now in Hong Kong and staying with the Father in accommodation provided by the Father’s present employer (“F’s employer accommodation”).

Legal principles

11.Section 3(1)(a) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”) sets out the general principles when it comes to matters relating to the custody or upbringing of a minor:

(1)   In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—

(a)  in any proceedings before any court … the court—

(i)   shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to—

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.

12.In H v N [2012] 5 HKLRD 498, Jeremy Poon J (as he then was) set out the correct approach to the “best interests” principle:

“24. The term “best interests” is not defined. For one thing, it is simply impossible to give an exhaustive statutory definition that embraces every eventuality. More importantly, the flexibility without a statutory definition enables the Court to identify and look into all the welfare issues concerning the minor as they arise from the particular circumstances of the case and carefully consider and evaluate all the matters pertaining to those issues.

25. A cursory research of the cases readily shows that the Court has given the word “welfare” its widest meaning. Thus, it is not limited to monetary or material needs, the minor’s physical well-being or physical comfort but encompasses medical, moral, religious and emotional issues including his ties of affection and all other welfare issues. The same must be true for the term “best interests” too.

26. In assessing the best interests of the minor, the Court must have regard to all the relevant factors. Section 3(1)(a) has only prescribed two specific factors that the Court must have regard to: (a) the minor's views, if having regard to his age and understanding and to the circumstances of the case, it is practicable to do so; and (b) any material information including any report of the Director of Social Welfare. I will return to the minor's views and the social welfare report in a moment.

In recent years, when applying the welfare principle under s.3(1) of the GMO, judges in the Family Court have consistently adopted, with minor modifications to suit the local circumstances, the matters specified in s.1(3) of the English Children Act 1989, which have now come to be known as "the welfare checklist". Those factors are:

(a)  the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding)

(b)  his physical, emotional and educational needs

(c)  the likely effect on him of any change in his circumstances

(d)  his age, sex, background and any characteristics of his which the court considers relevant

(e)  any harm he has suffered or is at risk of suffering

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

(g)  the range of powers available to the court under the 1989 Act in the proceedings in question.

It has more or less become a standard practice in the Family Court in cases involving children to make use of "the welfare checklist".”

Social Investigation Reports (“SIR”)

13.The Social Welfare Officer (“SWO”), in his latest report dated 12 February 2022, echoes the Father’s view that the Children should get love equally from both parents but it does not necessitate a shared care and control. SWO maintains the recommendation that the Mother should retain care and control of the Children[4] and that the Father should have access as follows[5]:

i.   Weekend staying access: from Friday 5:00 p.m. to Sunday 8:30 p.m. except for one weekend of the month, to be agreed between the parties. This is subject to the Father undertaking to be flexible with access, and to consider allowing the Children to meet with friends when the opportunity arises during access. This is also subject to the Mother continuing to motivate the Children to attend access. (emphasis added)

ii.  Weekday dinner access: the Father shall have dinner with the Children on the week of no staying access. Dinner shall take place on Thursday from 5:30 p.m. to 8:30 p.m.

14.Holidays are recommended to be shared on an equal and alternating basis. For the Father’s special days, he should have access on weekdays at 5:00 p.m. to 8:30 p.m., or during weekend at 10:00 a.m. to 8:30 p.m. The Mother shall enjoy the same access for her special days.

15.For the Children’s birthdays, the Father shall have one hour of access or longer (subject to the Mother’s agreement) to the birthday girl if she is staying with the Mother on that day, and vice versa.

16.Handovers are to take place at the lobby of the Mother’s residence. The Father shall have daily and reasonable video call access with the Children when the Children are under the Mother’s care, and vice versa.

17.In my view, SWO’s recommendations for Weekend staying access may have some practical difficulties as it is said to be “subject to the Father undertaking to be flexible with access, ….also subject to the Mother continuing to motivate the Children to attend access.”  There is no evidence before me that the Father is willing to give such an undertaking.    

Parties’ proposal

18.The parties filed their respective Open Proposals on 30 November 2022.

19.The Mother proposes the sole care and control be granted to her with defined access to the Father.

20.The Father asks for shared care and control (alternating weeks), with holidays shared on an equal and alternating basis. In the event it is not accepted by the Court, his alternative proposal is to adopt the SIR’s recommendations with modifications.

Issues not in dispute

21.The parties have no dispute over the following substantive issues:

i.     Holidays are to be shared as follows:

21.i.1.  Single-day school holidays are to be shared on an equal and alternating basis; and

21.i.2.  School holidays and public holidays are to be shared on an equal and alternating basis;

ii.    There shall be no make-up access;

iii.   The parties do have unrestricted remote access to the Children;

iv.  There be liberty to travel with the other parent’s prior written consent, and details should be given for passport renewal; and

v.   The Children should spend Parent Days, Parent’s birthday and other special days with that Parent.

Issues in dispute

22.The parties cannot agree on the following issues:

i.      Term time weekend staying access:

22.i.1.The Father’s proposal is one-week on/one-week off or alternatively 3 weekends every month; and

22.i.2.The Mother’s proposal is to keep the current arrangement with slight modifications;

ii.     Handover locations;

iii.    Access on special days: pick-up and drop-off time;

iv.    Single day holiday access: pick-up and drop-off time;

v.     Arrangements for Children’s birthdays;

vi.    The Children’s living arrangements when either Parent is travelling; and

vii.   Parental communication channels.

Witnesses

23.During the trial, the Court heard from three witnesses only, namely SWO, the Father and the Mother.

SWO’s evidence

24.SWO said at the trial that it was more ideal for parents to have a consensus and discussion on how to introduce MC’s existence to the Children which was essential to rebuild the parents’ trust.

25.In the updated SIR dated 26 July 2021, the Father said the following to SWO:

i.     He commenced employment with the bank mentioned above in February 2021;

ii.    He was still living at the FMH in South Bay[6];

iii.   He was maintaining frequent phone contact with MC, who was under the care of Madam Li in Beijing; and

iv.   It was all along the Father’s wish to disclose MC’s existence to the Children.

26.In the second updated SIR dated 21 February 2022, the Father indicated his “condition in respect of his work and accommodation basically remained the same as reported in the Updated SIR dated 26.7.2021”

27.SWO also gave evidence at the trial that the Father had not disclosed to him that MC and Madam Li were now living in the F’s employer accommodation with the Father who has moved out of the FMH. SWO accepted not only that these were relevant, but that they were important updates and that they might cause a change in his recommendations.

28.Mr Edgerton for the Mother submitted that SWO did not know and could not have known that the Father was also cohabiting with Madam Li and MC 50% of the time, a fact that was only revealed by the Father in his cross-examination on 12 January 2023.

29.In my view, this deprived SWO of an opportunity to review his recommendations especially the access arrangements of the Children in light of the material changes.  This is no criticism of SWO.  Simply due to the Father’s deliberate non-disclosure, the Court shall give little weight to the SWO’s recommendations as to the access arrangements.

Introducing Madam Li and MC to the Children by the Father unilaterally

30.The Mother informed the Court that she had come to know, after the fact, that the Father had unilaterally introduced CJC to MC and Madam Li.  The Mother only learned this after being informed by the Children.  The Father had not told the Mother that CJC was going to meet Madam Li, and no steps were taken to prepare CJC for this meeting.

31.On 20 December 2022, AJC messaged the Mother during the Father’s access. In the message, AJC wrote that CJC felt “weird and angry and surprised” when she saw MC and Madam Li.

32.On one hand, in the Father’s closing submission, he sensibly expressed his understanding that his extra-marital affair and the existence of MC could cause discomfort to the Children.   On the other hand, the Father disclosed MC’s existence to the Children against expert advice and the Court order.  During the cross examination by Mr Egerton for the Mother, the Father refused to acknowledge his responsibility and that he characterized his breach as an “oversight”, saying it was “not intentional”, and said he “apologise[d] for the sequencing”.  In view of the Father’s education and present position with his employer bank, I reject his explanation.

The Father’s plans for integrating two families

33.Mr Egerton for the Mother submitted that the Father has been consistent in his desire to integrate his two families: one with the Mother and the Children, and the second one with Madam Li and MC. 

34.During cross-examination, the Father claimed his wish “which is all along to be a present father to all [his] children”, and for “(the Children), and to all be in the same household together”.  The Father alleged that his wishes were based on Dr Monica Borschel’s advice which was contrary to the Mother’s understanding.  In fact, the Father has produced no documentary evidence of such advice by Dr Borschel. The Father has also never canvassed his desire, plans and actions with the Mother.  This desire was only first revealed during the trial.  Besides, on 29 July 2021, I only directed the parties to jointly appoint Katrina Rozga, but not Dr Monica Borschel.  I refuse to accept his evidence in this regard.

35.If the Father wishes in integrating his two families, he ought to have volunteered for the SWO to visit the apartment he prepared for Madam Li and MC, and in which he intends for the Children to stay with Madam Li and MC when they are in his care.  But he failed to do so and kept the SWO in dark.

36.I also have great reservation as to whether integrating the Father’s two families will be in the Children’s best interests.  The SWO certainly did not have the opportunity to do necessary investigations and make necessary recommendations in the SIRs to assist the court in this extremely important topic.

37.The Father, throughout these proceedings, has deliberately omitted in all his affirmations or oral evidence at the trial to disclose the details of Madam Li and MC’s arrival in Hong Kong, their current living arrangements here and his plan in integrating his two families.  As a whole, I consider that the Father’s evidence was evasive.

38.In my view, if the Father really wishes in integrating his two families, he has to seek appropriate expert advice and make frank disclosure to the SWO before he is able to persuade the court to accept his plan.  Based on the limited evidence in this case, I consider that it is just his “wishful thinking” regardless of the best interest of the Children.

Absence during access

39.The Mother said that during Thanksgiving access on 25 November 2021, the Father insisted on bringing the Children for staying access as opposed to day access. The Mother eventually relented.

40.Despite his insistence on having the Children for staying access during Thanksgiving, he “was not home till at night”. The Children had Thanksgiving dinner by themselves. The Mother said that if he had genuinely wanted to see the Children, he should have stayed home with the Children, instead of leaving them alone until late.

41.During weekend staying access on 30 September 2022, the Father told AJC (but not the Mother) that he would not collect her for the weekend access. On the contrary, while he picked up CJC, he was not present during the access at all.  Instead, CJC had a sleepover with a friend and supervised by the Father’s helper.  Nevertheless, he was not present.  I accept Mr Egerton’s submission that the purpose of access is to maintain a parent-children relationship after parental separation. The Father’s absence during access does not serve this purpose.  Greater access will be counter-productive if the Father does not actually spend time with the Children.

The ascertainable wishes and feeling of the Children

42.In the context of the age of the older Children, SJC and AJC (now 15 and 13 years old respectively), their views are important in the Court’s determination of their future arrangements.

43.The Children share a close emotional bond with the Mother. Since the first SIR, both SJC and AJC said to the SWO that the Mother is their main carer and that they clearly expressed their wish to live continuously with the Mother. They both continue to show frustration at the hassle of having to “go back and forth between houses”.

44.SJC still fears the Father after the 3 September 2020 incident. She remembers the Father shouting at her, and, two years later, still feels distressed and fear that he will reprimand her for something she has no control over. As such, she feels protective over her sisters, especially when she observes the Father shouting at CJC.

45.CJC (now 9 years old) was interviewed by the SWO. The three SIRs only record her answers to the SWO’s questions; they are silent as to her views towards the care and control, and access.

46.The parties’ separation occurred before CJC was six. According to the SIRs, she could not express a clear view on access. She could only indicate she “liked to go to daddy’s home” after the separation.

47.As CJC grew up, there was an incident when she did not want to attend access. Nevertheless, she still attended access with the Father later on, because Mother had encouraged her, by saying “daddy would be happy seeing you”. The SIR however does not record why CJC did not want to attend access that day.

48.Regrettably, CJC recalls that Father “often yelled to her”, sometimes with bad words. Her sisters also remember the Father yelling at CJC over the dining table.

49.In my view, as the Children have very close relation among themselves, there is no good reason to split the Children’s care and control.  In other words, they shall mainly reside with one parent.

Effect on the Children of any change in circumstances

50.The Children are well taken care of, physically and educationally, by the Mother.  As reflected in the SIRs, the status quo shall be maintained.  Any drastic change to the status quo would be undesirable to them.

The Father’s equivocal plans

51.The Father primarily insists on shared care and control (alternating weeks), with holidays shared on an equal and alternating basis.  In S, V v M, S [2020] 1 HKLRD 210 at §17, HHJ Melloy summarised the legal principles on shared care and control:

17.  The parties have both produced a number of different cases for the court's consideration including the Court of Appeal's decision in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191. Reference should also be made to a case produced by Ms Anita Yip SC for the mother, namely PJM v GPN (FCMC 4999/2014, [2018] HKFC 65) (2 May 2018). In that case I made an order for shared care, and in doing so commented as follows:

13.  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:

Joint care and control

21.  Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22.  The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child's day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/ren's best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren's time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case. As I have said it is not possible for me to make a "parallel parenting" order as such. However, I would like to make an order that supports the concept of parallel parenting. Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access. This will make no difference at all to the practical arrangements that I intend to put in place. They would have been the same in either event. However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

Detailed arrangements were then set out accordingly.”

52.Mr Egerton for the Mother submitted that the Father fails to address and disclose the most fundamental arrangement: where and with whom the Children will stay, when they are with him.  I agree.  I even do not know whether Madam Li and MC are intended to stay in Hong Kong permanently or just temporarily and the background of Madam Li.

53.The Father is the Managing Director, Global Banking and Markets of a famous bank in Hong Kong.  His annual base salary is HK$3,000,000, with an adjustable annual salary of HK$3,600,000.  While occupying a very senior position in the bank, the Father fails to provide information on his workload, and possible work travel.  I refuse to accept that he has a flexible working schedule, as claimed by him.  He further gives no proposals for the Children’s care if he needs to travel for work, nor the arrangements if he is needed at the office overnight when the Children are in his care.

54.More importantly, the SWO has no opportunity to interview Madam Li who may be one of the carers to look after the Children when they are residing with the Father.  It will be a serious issue if the relationship between Madam Li and the Children is not very good, especially when the Father is not at home.  Or for some reasons, the Children may not like Madam Li.  The Court has to heavily rely on the SWO who is the “ear” and “eye” of the court to do the investigation, including observation on interaction among the Children and Madam Li and MC (if necessary), then the SWO may make appropriate recommendations.

55.In the circumstances, I am of the view that the Father’s proposal for shared care and control lacks critical information, disturbs the Children’s routine, overlooks their need for structure and stability.  He simply fails to explain how his arrangements for his second family with Madam Li and MC will affect the care and control of the Children.  This is not a case which, on its own facts, justify a departure from the status quo.  Even if the parties are loving parents and proven to be capable of taking care of the Children, I have no doubt to reject the Father’s proposal.

56.The Father repeatedly accuses the Mother of “weaponizing” the Children and even parental alienation.  He calls the Mother a “kidnapper” accusing her of using illegal drugs, etc.  He also complained that the Mother unilaterally moved the Children from the FMH on 3 September 2020.  In cross-examination, the Father further suggested the Mother put the Children through an unduly harsh swim schedule.

57.Nonetheless, the Father had limited questions of the Mother when he cross examined her at the trial; ironically the questions relating to the swimming schedule.  In my view, there is simply no or insufficient evidence to support the Father’s bare and serious assertions against the Mother.  I refuse to accept them. 

Conclusion

58.Having carefully considered all the relevant factors and circumstances, in the best interest of the Children, I make an order that the Mother do have sole care and control of the Children of the family with defined access to the Father. 

59.The Mother made a very detailed proposal of access arrangement in the closing submission.  Basically, the parties have almost the equal time with the Children apart from the Term Time.  In general, agree with some minor modifications and now make an order for defined access to the Father in the following manner:

Term Time

i.     The Respondent shall have staying access with the Children on a fortnight basis from 8:00pm on Friday night to 8:00pm on Sunday night;

ii.    The Respondent shall have dinner access with the Children twice a week (every Tuesday and Friday or any 2 days the parties mutually agree) fortnight from 5:00pm to 8:00pm on the week which he does not have weekend staying access with the Children;

iii.   The Children shall be at liberty to have video call access with either party at any time (not less than 10 minutes) when not in their care;

Public Holiday and Single Day School Holidays

iv.   The Parties shall continue to share the Children’s public holidays and single school holidays on an equal and alternating basis. In the event that a parent is to have the public or single day holiday access with the Children on a day when the Children are not scheduled to be in that parent’s care according to the term time access schedule, the parent having that public or single day holiday shall pick-up the Children at 10:00am and drop-off at 8:00pm on the same day;

Special Days

v.    The Children shall spend time with the Petitioner on Mother’s Day and her birthday and with the Respondent on Father’s Day and his birthday regardless of which party the Children are otherwise scheduled to spend time with on these days.

vi.   If the Children are scheduled to be with the other parent on any special day:

a.  If such special day falls on a non-school day, the Children will spend time with the parent who is having a special day from 10:00 am – 8:00 pm on that day. The Children shall thereafter return to the parent who was initially scheduled to have care of the Children on that day; and

b.  If such special day falls on a school day, the Children will spend time with the parent who is having a special day from 5:00 pm – 8:00 pm on that day. The Children shall thereafter return to the parent who was initially scheduled to have care of the Children on that day.

vii.  For the avoidance of any doubt, the parties shall celebrate the Children’s birthdays in their respective scheduled time.

School Holidays

viii. The Parties shall share the Children’s school holidays (commencing at 10:00am on the first day of the holiday and ending at 8:00pm on the last day of the holiday) equally as follows:

a.  Summer School Holidays: If an agreement is reached between the parties that either or both of them will travel with the Children in the summer holidays, the parties shall split time equally on a 3-weeks on / 3-weeks off basis; and if the parties do not travel with the Children in the summer holidays, the time shall be split on a week on / week off basis;  

b.  In 2024 and in each even numbered year thereafter, the summer holiday rotation shall start with the Respondent; and in 2025 and in each odd numbered year thereafter, the summer holiday rotation shall start with the Petitioner;

c.  October school holidays: In 2023 and in each odd numbered year thereafter the Children shall spend the October holiday with the Petitioner. In 2024 and in each even numbered year thereafter, the Children shall spend the October holiday with the Respondent;

d.  Winter: The parties shall share the Winter holidays equally with the Children.  In 2023 and in each odd numbered year thereafter, the Winter holiday rotation shall start with the Petitioner; and that in 2024 and in each even numbered year thereafter, the Winter holiday rotation shall start with the Respondent.  For the avoidance of any doubt, the parent having the first half of the Winter holiday shall also spend the Christmas Day with the Children and the parent having the latter half of the Winter holiday shall also spend the New Year’s Eve and New Year’s Day with the Children;

e.  Chinese New Year: In 2024 and in each even numbered year thereafter, the Children shall spend the Chinese New Year holiday with the Petitioner; and in 2025 and in each odd numbered year thereafter, the Children shall spend the Chinese New Year holiday with the Respondent;

f.  Spring break: In 2024 and in each even numbered year thereafter, the Children shall spend the spring break holiday with the Respondent; and in 2025 and in each odd numbered year thereafter, the Children shall spend the spring break holiday with the Petitioner.

Handovers

ix.   All handovers shall take place in the lobby of the Petitioner’s apartment building (currently The Manhattan, 33 Tai Tam Road, Stanley) at the time each access begins and ends unless otherwise agreed between the parties;

x.    In the event of a Black Rainstorm Warning, Gale or Storm Signal No. 8, Increasing Gale or Storm Signal No. 9, or Hurricane Signal No. 10 being hoisted before the Children are to be collected for or from access, the handover shall be postponed until such warning signal/s is/are lowered in the interest of the safety of the Children;

Continuation of term time access schedule

xi.   The term time staying and dinner access schedule continues despite the intervention of school holidays, rather than resetting at the conclusion of each school holiday.

Travelling with the Children

xii.  Subject to an undertaking by both parties that with the other party’s prior written consent, which shall not be unreasonably withheld, and which shall be provided in accordance with these proposals, either party shall be at liberty to bring the Children for overseas holiday at such time and for such duration as agreed.

xiii. For the purposes of overseas travel, the parties shall:

a.  in relation to obtaining prior written consent from the other party, each party shall give the notice of intention to travel abroad to the other party as soon as possible before the intended overseas travel but no less than one month prior to the intended overseas travel and provide to the other party the flight details, itinerary of the intended travel, accommodation details, contact details and address(es) of the Children during the intended travel. If there is any change in the said details already provided to the other party, the party taking the Children for the overseas travel shall inform the other party of the relevant change(s) no later than one (1) week before the intended travel or as soon as practicable if that party and the Children are already traveling;

b.  the travelling party shall use his/her best endeavours to facilitate daily remote contact (through either voice or video call) between the Children and the non-traveling party, at such time and for such duration as the non-travelling party shall require;

c.  consent as per above shall be deemed to have been given if the non-traveling party has not given such consent upon the expiration of 2 weeks from the date the traveling party gives notice in compliance with paragraph above;

d.  the Petitioner will for the purpose of facilitating the Children’s overseas travel with the Respondent, provide to the Respondent the Children’s identification documents (including their Australian and/or Hong Kong passports) not later than 48 hours before the intended travel and the Respondent agrees to return the Children’s identification documents (including their passports) to the Petitioner when the Children return to the Petitioner, who shall hold and retain the Children’s identification documents (including their passports) when they are not traveling;

e.  the Respondent will for the purpose of facilitating the Children’s overseas travel requiring their US passports with the Petitioner, provide to the Petitioner the Children’s US passports not later than 48 hours before the intended travel and the Petitioner agrees to return the Children’s US passports to the Respondent who shall hold and retain the Children’s US passports when they are not traveling, when the Children return;

f.  the Petitioner shall from time to time arrange to renew the Children’s identification documents (including their Australian and Hong Kong passports) not later than 6 months before the expiration of such identification document(s); and the Respondent agrees to give the necessary consents and execute the paperwork necessary and provide all necessary information to the Petitioner and to the relevant consular offices or government departments without any undue delay to ensure the Petitioner can renew the Children’s identification documents (including the Children’s Australian and Hong Kong passports) on time; and

g.  the Respondent shall from time to time arrange to renew the Children’s US passports not later than 6 months before the expiration of such; and the Petitioner agrees to give the necessary consents and execute the paperwork necessary and provide all necessary information to the Respondent and to the relevant consular offices or government departments without any undue delay to ensure the Respondent can renew the Children’s US passports on time.

Arrangements for the Children if either or both parties travel for work

xiv.   If the Respondent travels over a period which includes time the Children are scheduled to be in his care for access, the default arrangement will be that the Children will stay with the Petitioner during such period and no make-up of the missed access time will be arranged.

xv.    If the Petitioner travels over a period which includes time the Children are scheduled to be in her care, the default arrangement will be that the Children will stay with the Respondent during such period.

xvi.   If both parties are required to travel overseas, the default arrangement will be that the Children will stay in the Petitioner’s home in the care of her foreign domestic worker.

Consent to Children

xvii.  The Parties shall endeavour to facilitate the Children taking part in extra-curricular activities, including but not limited to giving consent to travel and attend overseas trainings/competitions from time to time.

Parental communication channel

xviii. Parties shall use their respective designated email for the sole purpose of communicating the Children’s school activities, ECA schedules, medical appointments etc with each other. 

60.As to the question of costs, I make an order nisi that there be no order as to costs including all costs reserved, which shall become absolute unless any of the parties apply for variation with supporting affirmation by summons within 14 days.

Mr Robin Egerton and Mr Azan Marwah instructed by Tanner De Witt for the Petitioner

The Respondent unrepresented appearing in person