Sslt v. Smfc
Read the full judgment text of FCMC 11056/2017 on BabelCite. This Family Court judgment was delivered on 21 February 2025 before Deputy District Judge R So.
Matrimonial Causes – Care and Control – Access – Best Interests of Children – Parental Alienation – Social Welfare Report – Variation of Order – Holiday Arrangements – Joint Custody – Defined Access – No Costs. Father applied to vary care and control of children D and G. Mother agreed to sole care and control of D to Father. Court determined no parental alienation by Father. Court varied care and control of both Children to Father, maintaining joint custody. Defined access granted to Mother for both Children (mid-week dinner and alternate weekends). Holiday arrangements to be equally shared without pre-determined dates. Progress report ordered. No costs.
Legal issues: Parental Alienation · Access Arrangement for D · Care and Control for G · Holiday Arrangements
Outcome: Care and control of Children varied to Father; Joint custody remains; Defined access granted to Mother.
Cites 1 case
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FCMC 11056/2017 [2025] HKFC 35 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO 11056 OF 2017 ________________________
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__________________________________ JUDGMENT __________________________________ Preliminaries 1.This is the trial of the application taken out by the respondent husband (“Father”) by way of Summons filed on 5 July 2022 (“Application”) to vary the care, control and access arrangement of the children of the family, with the elder daughter (“D”) and the younger son (“G”) (collectively “Children”). 2.By consent, the custody matter of the Children was agreed by the Father and the petitioner wife (“Mother”) by an order of Deputy District Judge J. Chow dated 26 February 2018 (“2018 Order”). The parties were granted “joint custody and joint care and control of the Children” and it was ordered that they “shall respectfully care for the Children pursuant to the arrangements set out in Recital B”. 3.On 5 July 2022, the Father took out the Application to vary the Children arrangement. He applied for sole care and control of both Children, with defined access to the Mother of: (a) every weekend from Saturday morning until Sunday noon; and (b) weekly dinner access on any weekday as the Mother and the Children agree. The Father also asked for order that the time each parent can travel with the Children during summer holiday be defined. 4.With a failed Children Dispute Resolution hearing conducted on 11 January 2024 (“CDR”), the Application was adjourned for trial. 5.Mr. Levaire, counsel for the Mother, confirms that the Mother agrees to sole care and control of D be granted to the Father, leaving (a) access of D; (b) arrangement of G; and (c) holiday arrangements for the Children still in dispute. Background 6.I refer to the judgment handed down on 20 September 2019 of the ancillary relief trial and the 1st Social Welfare Report for the detailed background of the case and of the parties, which I do not repeat here. I only include the salient facts of this case. 7.The Mother is now 49 years old. She is Chinese and was born in UK. She graduated with a bachelor’s degree in pharmacy in a UK University. She worked as a pharmacist and was awarded a PhD. After coming to Hong Kong, she took maternity leave for one year and then took care of the family and Children. She now manages her online tutorial business at home, and intermittently picked up job orders as locum pharmacists at local dispensaries. 8.The Father is now 49 years old. He is Chinese and was born in USA. He received education in USA and graduated with a bachelor’s degree in Engineering. He had worked in the IT and finance industries. After moving and having settled in Hong Kong, the Father had been working as a Vice President at an investment firm since February 2020. Since June 2024, the Father had resigned from work. 9.The parties were married in April 2010 and they came to Hong Kong in about September 2010. D and G were born in 2011 and 2014 respectively. 10.D is now 14 years old. She graduated from a local primary school and had transferred to an international school. She is now a Grade 8 student. G is now 10 years old and is now a Primary 4 student in a local primary school. 11.The Mother petitioned for divorce in August 2017 on the ground of one-year’s separation with consent of the Father. 12.By consent, the 2018 Order was granted, with “joint custody and joint care and control of the Children” and it was ordered that they “shall respectfully care for the Children pursuant to the arrangements set out in Recital B above”. 13.In Recital B of the 2018 Order, it was agreed that :-
14.The parties could not agree on ancillary relief matters and trial was conducted, with the judgment handed down on 20 September 2019. 15.Decree Absolute was granted on 9 October 2019. 16.After the 2018 Order, the Children resided with the Mother with access to the Father on an ad hoc basis. At first, the Children stayed with either parent alternatively in every 2 to 3 nights a week. Since the arrangement was not conducted smoothly, under the mediation of a parenting co-ordinator arranged by the Mother, the arrangement was modified. 17.In early 2020, there was new agreement for the Children mutually agreed between the parties that the Children stayed with each parent in alternate week and the changeover took place on each Friday afternoon after school. The non-residing parent had mid-week dinner access with the Children from 5:00pm to 8:00pm on Tuesday. This childcare arrangement had been conducted with each parent sharing care and control time on an equal basis, which had been in place until August 2023. 18.The Father took out the present Application to vary care, control and access arrangements on 5 July 2022. 19.Social Welfare Report was called for, which was compiled by the 1st Social Welfare Officer involved in this case, Ms Lo, with the report dated 12 April 2023 (“1st SWR”). 20.In August 2023, after the family was back from London for holiday to Hong Kong, D started residing with the Father. 21.CDR hearing was conducted on 11 January 2024. Given the residing arrangement of D, an updated Social Welfare Report was called for, which was compiled by the 2nd Social Welfare Officer involved in this case, Ms Wong, with the report dated 27 May 2024 (“2nd SWR”). The Father’s Application was also adjourned for trial. 22.As D has been residing with the Father since August 2023, the Mother has the usual dinner time and other time with D since after the court hearing on 11 January 2024. As summarized by Ms Wong in the 2nd SWR, the Mother’s time with D is stated as follows :-
23.Regarding G, the same arrangement residing with either parent in alternate weeks as stated in paragraph 16 above continues. The Father’s case 24.The Father has filed 2 affidavits for this Application, namely the 3rd Affidavit filed on 5 July 2022 (“Affidavit in Support”) and the 6th Affidavit filed on 21 March 2024 (“Affidavit in Reply”). 25.It is the Father’s case that the arrangement in the 2018 Order has not been in effect for many years, and the alternate week arrangement with either parent cannot address the Children’s welfare. Initially, in the Father’s Affidavit in Support, he relies on 6 reasons for the Application, including household stability, the assistance of a stable domestic helper, support for the Children’s extra-curricular activities (“ECA”), capability and willingness to study with the Children, openness and communication with the Children and misuse of financial resources. 26.Further, the Father is of the view that the constant movements from household to household are not in the Children’s best interests, as their schooling, activities and general development are suffering. 27.The Father explained why the continuation of alternate weeks between each parent as per the current arrangement now for G is not in his best interest, including the following main reasons :-
28.Regarding D’s access time, the Father is of the view that the current level of access is too tiring to the Daughter. Less access during weekdays with the Mother is more appropriate. 29.Regarding the holiday arrangements, the Father is of the view the current arrangement of both parties equally sharing, but with the exact dates to be further agreed is too flexible and ad hoc, resulting in much disputes about the travel arrangement. Pre-determined holiday entitlement should be ordered by the court. 30.The Father explains that he has experienced a lot of problems with communication with the Mother. 31.The Father’s Open Offer is as follows :-
The Mother’s case 32.The Mother has filed 1 affirmation on 20 March 2024 (“Affirmation in Opposition”) to oppose the Father’s Application. 33.The Mother opposes to the Father’s Application and Open Offer. In Mr. Levaire’s submissions, much emphasis has been put to the original agreement between the parties, which “established a foundation for amicable co-parenting and prioritised the Children’s well-being”. The settlement between the parties, according to Mr. Levaire, was a testament to the parties “shared commitment to fostering a harmonious environment” for the Children. 34.It is the Mother’s case that the alternate week arrangement with the sharing of holidays equally has been disrupted by the Father’s unilateral imposition of a change in the status quo, jeopardising the stability and emotional security of the Children. 35.Mr. Levaire submitted that “the Father’s abrupt assertion of sole care and control over D and G represents a significant deviation from the mutually agreed-upon 50:50 care and control framework”. The Mother is of the view that it is contrary to the spirit of co-operation and shared responsibilities underlying the original agreement, with the Father’s actions having disrupted the delicate balance established for the benefit of the Children. 36.Mr. Levaire also criticised the 6 points raised by the Father in his Affidavit in Support and rebutted each of the points in his written submissions, which I do not repeat here. 37.The Mother is of the view that the Father took advantage of a temporary change of mind by D in around August 2023, during which she acted rebelliously against the Mother and expressed a preference for the Father. The Mother alleges that there was alienation by the Father and quoted examples of how improper the Father’s behaviour has been. 38.The Mother also explained about the communication problems with the Father, and she is of the view that the Father may be self-engineering communication problems, in the hope of getting sole care and control. 39.The Mother initially asked for reverting to alternate week arrangement for D, but after communication with Ms Wong, the Social Welfare Officer, the Mother expressed that she now accepts D’s views and agree to care and control of D be to the Father. Regarding G, she asks for continuation of the existing alternate week arrangement. In gist, the Mother asked for status quo for both Children. 40.It is the Mother’s Open Offer that :-
41.Upon clarification by Mr. Levaire, points 8 to 13 in the Open Offer are not issues for determination for this trial. During the trial, I make it clear to parties that they should communicate and try to reach agreement on Children’s matters if and when necessary, especially in this case with the joint custody of the Children not in issue and both parties should discuss about the choice of school for the Children in good time. Evidence 42.Both the Father and the Mother gave evidence during the trial, and no other factual witnesses were called. 43.By consent, the parties agreed not to call the first Social Welfare Officer who prepared the 1st SWR, Ms Lo, for cross examination. The 1st SWR is therefore adduced without calling the maker. Ms Lo did not support the Father’s application to vary the care and control of the Children. 44.Ms Wong, the Social Welfare Officer who prepared the 2nd SWR, gave evidence in Court and relied on the 2nd SWR dated 27 May 2024 as evidence in chief. In gist, she recommended status quo for both D and G. The legal principles 45.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 :-
46.The general legal principles governing such applications are set out in s. 3 of the Guardianship of Minor Ordinance, Cap. 13, which states that :-
47.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 :-
48.I will consider those factors that are relevant. However, I do not intend to go through them point by point, as it is not compulsory to do so. Instead, I shall make general reference to the relevant ones in my consideration. Analysis of evidence 49.The only factual issue for the court’s determination is whether there is parental alienation by the Father, which will be the first issue to be considered. 50.With the confirmation by the Mother that she agrees to sole care and control of D be to the Father, the Court has to rule on the following:-
51.It is confirmed by parties that they still agree on joint custody for both Children. 52.Before I rule on each of these issues, I have considered the background of this case and of the parties. Both parties are highly educated. I accept the Children have been well taken care of when they were in the care of the Father or of the Mother. I agree with Ms Wong’s observation in paragraph 34 of the 2nd SWR that :-
53.However, the relationship between the parties was not well, and there were many difficulties and challenges arising. Ms Wong further observed, which is stated in other paragraphs in the 2nd SWR that :-
54.The 2018 Order, with which the parties were granted joint custody, joint care and control by consent, and with reference to the Recital B therein, no longer works, as there has been subsequent variation by mutual agreement (refer to paragraphs 16 to 17 above). A proper order is needed. The question is what orders or arrangements would be in the best interest of the Children. 55.Throughout the trial and especially during cross examination, I notice there is much lack of trust between the parties. Both parties have made many allegations against each other, which I will not go through one by one. In addition to the improper and/or inappropriate conduct and behaviour of the Father as alleged by the Mother in relation to parental alienation which I will summarise in paragraph 61 below, there are some general allegations about the difficulty to communicate with each other, no prompt reply from each other, the other insists in his/her own way unreasonably and focusing on himself/herself instead of the Children. More specifically, some allegations involve, namely a few but not an exhaustive list, :-
56.I notice that many of them are based on their different parenting style, different perception in how things should be done and would work best for the Children in their view, and how they expect the other should react from their own point of view. One of the serious allegations which the parties have identified for my ruling is whether there is parental alienation by the Father, which I will consider as the 1st issue to rule. 57.It is in this factual context that I consider the issues below. Whether there is parental alienation by the Father 58.It is the Mother’s case that there is parental alienation by the Father, as he had manipulated the temporary change of mind of D, when she expressed a preference for the Father and started residing with the Father since August 2023, and to use it to claim sole care and control of the Children. 59.The Mother also asserts that there is some conduct and behaviour of the Father, which collectively amounts to a degree of parental alienation, or at the very least, inappropriate behaviour. These conduct and behaviour include the following :-
60.The Father denied parental alienation, and pointed out that the Mother only made such allegations of parental alienation at the CDR hearing in January 2024, which were groundless, and were only attempts to falsely accuse the Father. 61.In relation to the allegations of the improper and inappropriate conduct and behaviour of the Father, he explained under cross-examination, which I summarise below :-
62.Ms Wong has also been asked about her views as to whether the acts of the Father amounts to alienation, which was answered in the negative. 63.While I accept that the parties have not been in harmonious relationship and there has been much disputes and disagreements as to Children arrangement matters, the Mother admitted to the following during cross-examination :-
64.The Father pointed out as examples that the Mother had Christmas and the New Year with both Children. She also took D to Taiwan for holiday for 5 days in early 2024, with the Father taking care of G, so that the Mother can improve her relationship with D. The Mother agreed to these matters put to her, and that some of these were agreed by parties without having to apply formally in court and without resorting to lawyers. 65.I have considered whether the Father’s stance of no parental alienation is supported by evidence and in line with the observation from the Social Welfare Officer, and the answer is yes. Ms Wong inquired with D as to why she suddenly decided to live with her Father in August 2023, and reported in paragraph 26 of the 2nd SWR that “she said that she had been considering it for several months and only implemented the decision at that time. However, when she was asked for the reason, D remained silent for a long time and stated that she did not want to answer the question.” 66.Although D did not give an answer to Ms Wong, D had indicated her preference not to live with her Mother and gave reasons as early as in the 1st SWR. Ms Lo reported in paragraph 41 of the 1st SWR that “D made an explicit preference to live with her father and indicated her resistance towards the mother as the mother was exercising control and supervision on her who was at her puberty stage.” While not criticising the Mother’s good intention to supervise D, Ms Lo continued in the same paragraph of her view that “the mother might need to adjust her parenting style to meet the girl’s developmental and emotional needs”. 67.Ms Wong also reported in paragraph 33 of the 2nd SWR that D’s “attitude towards her Mother has positively changed”. 68.Although I am of the view that there is room for improvement for some of the behaviour of the Father in some instances, such as the way the Father spoke negatively of the Mother in front of the Children when he disapproves some of the Mother’s decision and it is not desirable to let Children know unnecessarily the financial matters and disputes between the parties, considering all the evidence as a whole, I am not of the view that the behaviour or conduct of the Father as alleged by the Mother amounts to parental alienation. There is no evidence before me that the Father has parental alienation. What should be the defined access arrangement for D 69.After ruling on the factual issue about parental alienation above, when I consider and rule on the following matters, I will have regard to the best interests of the Children as the first and paramount consideration and in having such regard, I shall give due consideration to (a) the wishes and feelings of the Children (having regard to the age and understanding of the Children, and to the circumstances of the case); and (b) all material information, including the 2 SWRs. 70.As the Mother does not dispute the Father with sole care and control of D, the aspect for my determination is the access arrangement of D. Holiday arrangement will be considered in a later part of this Judgment. Given the background of this case and parties’ relationship, a defined access is necessary. 71.The Mother is of the view that there should be status quo of the access arrangement of D, while the Father is of the view that, apart from weekend staying access, 3 dinner access per alternate week during weekday is too tiring for D, and he asked for only 1 dinner access be granted. 72.In fact, while the Mother says status quo, it is not actually the same as the current arrangement. In the Mother’s Open Offer, she asked for end of the alternate weekend staying access ends not on Sunday night, but on Monday morning. I will consider this at the end of this section, after ruling on the major defined access arrangements for D. 73.Ms Wong in the 2nd SWR proposed that there should be status quo for the access arrangement of D. I refer to paragraph 29 of the 2nd SWR, which stated that “In regard to the current access arrangement, D had indifferent view and expressed to have got used to the current routine”. 74.I have considered the Father’s submissions that it may be too tiring for the Daughter to have 3 dinner access during weekdays of alternate week, as she starts her day early and only returns home late after dinner access with the Mother. 75.But I have also considered the parties evidence as to the location of their homes and of the school, and of the fact that the Mother can pick up the Children and return them by driving about half of the time, which could save their travelling time and the hassle of travelling by public transport. 76.When Ms Wong was asked about whether the existing access arrangement of D would be too tiring for her, Ms Wong explained that she had considered D’s view about this. The existing access arrangement is quite complicated, but the reply from D is quite positive. She said okay and she said she has got use to the routine. 77.I have considered D’s view and also how Ms Wong ascertained her view. According to Ms Wong, she saw D for 4 times, but only see G for 3 times, as D would have more views about the arrangement with the Mother and Ms Wong would want to understand more from D. With the background of this case that D, now 14 years old, expressed explicitly her preference to reside with the Father earlier, I am sure if there are problems or concern about being too tiring with the present access arrangement, D would have no hesitation to have told Ms Wong. With Ms Wong reported in paragraph 33 of the 2nd SWR that “D revealed no reluctant attitude towards the current access conducted by her mother”, I am of the view that the current weekday access is not too tiring for D. 78.Also in view of the improving relationship between D and the Mother, I rule that maintaining the status quo for the access arrangement of D is beneficial to her. 79.In relation to the end time of the alternate weekend staying access arrangement, I am of the view that end of access time be Sunday night (as per the existing arrangement), instead of until Monday morning (as per the Mother’s suggestion in the Open Offer), will be a better arrangement, as there will be less hassle for D so that she can get herself settled and get prepared the night before going to school on Monday. What should be the arrangement of G 80.The Mother asked for status quo, ie. G’s arrangement remains the same of spending time with each parent on alternate week and the changeover takes place on each Friday afternoon after school, with the non-residing parent has mid-week dinner access with G from 5:00 pm to 8:00 pm on Tuesday. She opposed to the Father’s application of radically changing the arrangement of G to sole care and control to the Father, with defined access to the Mother. 81.As explained in paragraph 69 above, I have regard to the best interest of G as the first and paramount consideration. I will consider the wish and feeling of G in the context of the circumstances of this case, and I will also consider all material information, including the 2 SWRs. 82.Regarding the background of this case, I repeat paragraphs 16 to 20 above and I am fully aware of the changes since the 2018 Order. 83.Considering the 1st SWR dated 12 April 2023, the Father’s application was not recommended. I have considered especially the following -
84.There was a substantial change subsequently, ie. D started residing with the Father since August 2023, with G remains to be in the alternate week arrangement. It was under this context that the 2nd SWR was called for. 85.In the 2nd SWR, G’s view had been stated in paragraph 24, when Ms Wong interviewed with the Father about his views, and Ms Wong recorded that “Regarding G, the Father had discussed the possibility of living together in the future, and G expressed that he would be happy to live with the Father or the Mother”. 86.In paragraph 30 of the 2nd SWR, being the only paragraph under the section “G’s views”, it is stated that :-
87.There is another part in the 2nd SWR about ascertaining the views of G, in paragraph 33 :-
88.During the trial, Ms Wong was asked to explain in detail the answer from G that he “revealed to be ‘okay’ to reside with each parent”. She answered that G meant he is okay with the arrangement of alternate weeks with each parent. During interview with G, she asked open question about the current living arrangement. Ms Wong frankly admitted that she had no recollection that she asked G his views about the Father’s proposal of having sole care and control, by living with the Father mainly during weekday like his sister. Ms Wong also confirmed that there was no way she can speculate about the views of G as she did not specifically ask him about the Father’s proposal. 89.During the giving of evidence, Ms Wong added that when she came to her conclusion, she based on 4 aspects of consideration :-
90.Ms Wong further explained that for the growth and development of G, he needs to have a stable living environment so that he can have a sense of security to develop his interest and strength. For sibling relationship, Ms Wong accepted that the sibling relationship is very good and they are very close to each other. They can have dinner nearly every night during the week when G stays with the Father. Even during the week when G stays with the Mother, there were dinner access of D with the Mother and the siblings can also have dinner together, giving them many chances to be with each other. 91.Ms Wong’s evidence about the recommendation for G includes mainly the following :-
92.Social Welfare Reports are generally regarded as being 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. In this instance, I have concern only about the recommendation of Ms Wong regarding the arrangement of G. 93.I am grateful to Ms Wong for the preparation of the 2nd SWR, including especially all the background information, interview and record of communication and responses with the parties and the Children as reported in the 2nd SWR. However, in coming to the conclusion for G’s arrangement, I have hesitation to put much weight to the recommendation, for the following main reasons :-
94.Mr. Levaire put a question to Ms Wong asking if she agrees that if both Children are to reside full time with the Father, there is a chance the Mother has less control or less knowledge about the Children’s affairs, including the safety of visiting classmates. This question demonstrates the worry of the Mother, which it seems Ms Wong has endorsed. If care and control was granted to the Father, the Mother’s time with G will be much less than the existing arrangement of alternate week. There is the risk of the Mother not knowing well what happened with the Son, as the Son may not contact the Mother frequent enough and the Father may not be communicating well with the Mother. It is a very reasonable and sensible worry. But what I have to consider is to put G’s welfare being the first and paramount consideration. 95.Ms Wong’s consideration of the 4 aspects before reaching her conclusion (as explained in paragraph 89 above) is very useful for my consideration, but I have different anaylsis of the facts and I have reached a different conclusion. 96.Regarding the view of G, I repeat paragraphs 85 to 87 above. This is exactly the situation Ms Lo, in paragraph 41 of the 1st SWR (quoted in paragraph 83(d) above) had expressed her concern about. I am of the view that G expressed “okay” and “indifferent” as to the existing alternate week arrangement, as he might have felt caught in the middle to take side. I have no doubt G loves both the Mother and the Father very much and he is happy to spend time with each of them. With the change of circumstances in this case, that D started residing with the Father since August 2023, if G is not asked specifically to choose between (a) the status quo of alternate week arrangement; or (b) residing mainly with the Father like his sister D, I am not surprised of the way G answered Ms Wong. G is not showing approval, preference or strong wish to continue, but indicating “okay” or “indifference” to the current arrangement. 97.I have not lost sight of G’s views and feelings explicitly expressed in the 1st SWR, when he stated clearly that he “wanted to have two homes, one with mommy and one with daddy” (as in paragraph 36 therein) and his “strong wish to remain status quo as he wanted to have two homes, where he could live with his mother one week and the father on the following week” (as in paragraph 40 therein). But at the same time, I notice that these were said at a time when both D and G were having the same alternate week arrangements, and the above views, as reported by Ms Lo in the 1st SWR, were not standalone views, G also mentioned, if not qualifying his view, that “he loved to stay with his sister……” (in the same paragraph 36 therein) and “as well as to stay with his sister……” (in the same paragraph 40 therein). 98.I am of the view that this change of residing arrangement of D since August 2023 is one substantial change in circumstances which I have given much weight in consideration. 99.Regarding sibling bonding, there is no doubt that sibling relationship is very close between D and G. I understand that with the current arrangement, the siblings can have many dinners together (refer to paragraph 90 above as explained by Ms Wong), but with both of them residing with one parent mainly will provide more important sibling together time for siblings bonding and for siblings to grow up together. The view of G is reported by Ms Lo in the 1st SWR including “love to stay with his sister even though she was strict to him and sometimes did not teach him how to do homework, shout at him or take his toys”. If residing together, there will be more time to teach homework, to play, to chat and to quarrel etc. 100.About stability of living, I agree that status quo is an important consideration, but it should be one of the considerations, and not necessarily the determining factor. I am of the view that consistency in G’s daily life regarding his growing needs is equally important. 101.Although G did not mention any problems of the current alternate week arrangement, his daily routine and activities are affected. As parties cannot agree on the tutorial class or the ECA of G, he can only join activities once every 2 weeks or choose to join less activities to avoid conflict between his parents. This may aggravate as G is going to change to an international school in due course, and there may be more ECA for him to choose from. 102.I have not lost sight of the concern raised by the Mother that there will be less time with G and the Father may exclude the Mother from participating in the life and ECA decisions of G. With the facts of this case, I have no doubt that both parties love both Children very much and I trust that the Father has the ability to put G’s interest as paramount and to communicate with the Mother so that she can continue to take part in G’s life and in making decisions of G. The Father has been complying with court orders all along. Taking D as an example, the Mother has been provided with the parents’ account of the school webpage and she could access in the same way as the Father. The Mother has not been denied access of school information and to participate any school activities. In fact, the Mother did attend school activities and the Father did invite the Mother to attend. 103.I am confident that both parents have the ability to cope with the difficulties faced in communicating with each other and to communicate despite the differences in views and parenting style. One may not always get things your way or as you expected. Not getting things your way does not necessarily mean being bad to the Children. There are difficulties now, which is not surprising or uncommon in divorce cases. Parties should continue communicating Children matters for the welfare and interest of the Children, I am of the view that for G, varying to care and control to the Father, with defined access to the Mother is in his best interest. 104.Next, about the access time of G, the Father is of the view that if care and control is granted to him, the access time of the Mother should be alternate weekends from after school or ECA on Friday until 7pm on Sunday and every Tuesday after school or ECA to 8:00 pm. I am of the view that more generous weekday access time should be given in view of the close relationship between G and the Mother. Having considered the background of the case, I rule that the same access arrangements as D should be applied to G. What should be the school long holiday arrangements 105.The parties used to agree equal sharing of the long school holidays, with exact dates to be further agreed. The Father confirmed that this equal sharing long school holidays can continue, but he asked for a clearly defined access (as per his Open Offer), saving the trouble of possible disagreement and dispute. 106.The Mother opposed. She disagreed to pre-determined dates of the long school holiday access and prefer discussion between the parties before such long holidays. Further, the Mother asks for a week more for her to spend time with D, to compensate for the Father’s additional time with D during the school year. 107.Ms Wong’s view is that there should be equal sharing of the long school holidays between the parties. Ms. Wong further explained that she did investigate the view from D and her understanding is that D is not ready to have more than half of the holiday time to be spent with the Mother. 108.I can understand the Mother’s concern that as she does not have care and control, she would like to have more time during long school holidays to compensate the time. However, I have to stress that time with the Children should not be viewed and considered in terms of “compensation”. While it is true that with the Father being granted the sole care and control during term time, the Mother will have less time with the Children during school term, I am of the view that long school holiday is of another category. Other than finishing holiday homework, the Children should have sufficient time to spend the holiday time with each parent. I am of the view that equal sharing of time between the Mother and the Father is reasonable, with Children’s best interest in mind. 109.Regarding the Father’s proposal that for the summer holiday, it should be divided on 26th July of each year to avoid disagreement and disputes, I do not agree. As the Children are growing up, there will be different school activities, competitions and excursions etc that may take place during long school holidays. Pre-determined dates will not serve the purpose with the Children’s best interest as paramount consideration. Both parents should not have hesitation to communication between them and use their best endeavours to reach agreement. 110.The past experience of communication may not be good, but in this case, as both parents agree to continue to have joint custody of the Children, continue communication between the parties about the Children’s affairs is expected. 111.I rule that for the summer, Christmas/New Year, Chinese New Year and Easter long school holidays, the parties should equally share them, without pre-determined dates. Parties should discuss and reach agreement at least 3 months before the summer holiday and at least 2 weeks before other holidays. Conclusion and observations 112.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 Children in mind, I have to say that there is no perfect arrangement for them. Both parties may feel aggrieved with my ruling, as neither party gets all they want. But this is the reality the parties have to face, with the Children growing up, more time will be spent academically, on ECA and other social activities of the Children, and there will be changing circumstances and changing needs of them. A consistent living environment and activities schedule, with strong sibling bonding is in the best interest of the Children at this stage in life, with the facts of this case. At the same time, unfailing parental love and support is equally important. 113.A parent may not expect enjoying the same together time with the Children compared to when they were younger. Quality time with the Children is also valuable. The parties are encouraged to focus not on what each of them wants from the Children from their point of view, but focus more on the needs of the Children from their perspective and what is at their best interest, especially at this dynamic stage of entering adolescence. 114.With my ruling of varying the care and control of the Children to the Father, with the Mother being granted defined access, I have to make it clear that it does not mean the Father is a better parent and thus getting the care and control. I made my ruling after consideration of various factors and with reasons as explained above, after putting the Children’s interest as paramount consideration in the circumstances. Both parents and their participation in their lives are important to the growth and well being of the Children. 115.Further, I have to remind both parties that “care and control” and “access” can be viewed as labels to a certain extent. When a parent exercises rights of access, during the time of the access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody. With my ruling of the extent of access granted to the Mother, her views as to the Children’s arrangement and activities which may affect her access time is necessary to be consulted. Continue communication between the parents are expected. Unilateral decisions made without obtaining the consent or consulting the other parent for important decisions is not in the best interest of the Children. 116.In fact, both parties have agreed to continue with joint custody and during trial, both parties confirmed that they will continue discussing about matters like the choice of school for G and also for D. I see no reasons why continue discussions of other Children matters cannot be in place. 117.With my ruling, challenges ahead are still anticipated, and co-operation and communication between the parties in future are expected. I echoed some the views expressed by Ms Wong during trial. Both parents love their Children very much and both of them have the ability to do co-parenting and to improve on the way they communicate. The parties are therefore reminded to focus to shift their communication from blaming each other to the growth and development on the Children. The love of their Children can be big enough to the extent that disputes, differences in views and conflicts between the parties can be put aside and focus be on the needs and feelings of the Children, to facilitate better communication and co-operation between the parents. 118.During trial, both parties confirmed agree to resort to co-parenting co-ordinator (“PC”) to resolve future disputes on Children matters. However, in the Father’s closing submissions, he opposed to PC to be included in the order. It was not because of his unwillingness to discuss matters with the Mother. On the contrary, the Father informed the court that the parties had voluntarily attended a session with PC, Mr. Ho, after the conclusion of trial, which both parties attended voluntarily. A court order for PC is therefore unnecessary. Further, the Father worried that an express order of PC may hinder direct communication between the parties, as the parties may wait until the engagement of PC, instead of communicating directly first, when trying to resolve any disputes. 119.With my observations and reminders above, I am of the view that an express order for PC is not necessary. While encouraging parties to communicate with each other to resolve any disputes, I add that the engagement of PC could be considered in appropriate instances, especially if parties have failed to reach agreement with their own direct communication. Orders 120.As explained above, paragraph 1 of the 2018 Order will be varied. As it is specifically stated in paragraph 1 therein that “the parties shall respectfully care for the Children pursuant to the arrangements set out in Recital B above”, and there are undertakings involved in Recital, I exercise my power to discharge those undertakings in Recital B that are part and partial to the varied care and control arrangements, ie. B(i)(a), B(i)(b) and B(iv)(b). 121.With the reasons aforesaid, I make the following orders:-
Costs 122.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.
Mr Romain Pierre Levaire instructed by Messrs. Choy Yung & Co. for the Petitioner The Respondent acts in person | ||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 11056/2017