Fm v. Lwy
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FCMC 9664/2022 [2025] HKFC 109 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO 9664 OF 2022 ________________________ BETWEEN
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________________________ J U D G M E N T (ACCESS AND LEAVE FOR GENERAL REMOVAL FOR VACATION) ________________________ 1.This is the trial of access arrangement for 2 children of the family, with the elder son aged 9 and the younger daughter aged 7. 2.By consent, joint custody had been granted, with care and control be granted to the petitioner father. Interim defined access was granted to the respondent mother and had been varied several times (details see paragraph 22 below). The latest interim defined access was granted on 6 May 2024 (details see paragraph 32 below). The mother asks for more access time with the children. As parties cannot agree on access arrangement at the children dispute resolution (“CDR”) hearings on 18 October 2023 and on 6 May 2024, the matter has to be adjourned for trial, with 3 days reserved. 3.Shortly before the pre-trial review hearing (“PTR”) on 12 August 2024, the father filed a summons, applying for general leave be granted to him to temporarily remove the children out of the jurisdiction of Hong Kong from time to time for the purpose of vacation (“General Leave Application”). The General Leave Application was returnable at the PTR, which was opposed by the mother. Directions were given for the parties to file affirmation. Both parties asked for the General Leave Application to be heard at the trial, knowing that the court would have to hear evidence and make determination without the assistance of a social investigation report. I directed that the General Leave Application be dealt with at this trial of access, with ruling to be given in this Judgment. 4.The 2 matters I have to determine in this trial are:-
Background 5.The father was born in 1984 in Hong Kong and was 40 years old at trial. He was the youngest among three siblings in his family. He migrated to New Zealand with his family in 2002 and completed his education, with a bachelor degree in Business Administration. He had worked in a bank in New Zealand, and later had worked in Shanghai and Hong Kong, with last title as a director of a private bank. 6.From 2016 to about 2019, the father had worked in the mother’s family company, and subsequently with some post-sale matters of the company. From about 2021, the father worked as a manager of a business consultant company and was allowed to work from home with flexible working hours of 20 hrs a week, while he continued with his further study. Since January 2023, the father started a new business venture, being a managing director of a private coaching swimming operation. His role being a manager of a business consultant company had transitioned to a part-time basis, which he continued to work from home with flexible working hours of about 20 hrs a week. 7.The mother was born in 1984 in Hong Kong and was 39 years old at trial. She has a younger brother. The mother had attended a foundation course in a high school in Singapore and later got a degree in Fashion Merchandising in a university. The mother had worked as a secretary for a couple of years and then ran a Chinese restaurant in Hong Kong for several years. She later sold her business in about 2017. 8.In about early 2022, the mother joined an education group, which is a charitable organisation. She reported that she attended an individual training from a child psychologist by online learning once a week from December 2021, which focused on her parenting skills and communication skills with the children. She also attended short courses, such as flower arrangement. 9.The father and the mother got acquainted in about early 2012 and they got married in January 2014. 10.Their elder son was born in 2015, now aged 9, studying Year 5 at an international school in Tuen Mun and their younger daughter was born in 2017, now aged 7, studying Year 3 at the same international school. 11.The family had lived in the maiden home and rented flats for the first few years of their marriage. In 2018, the family moved to their self-owned flat in Shatin, being their former matrimonial home. 12.When the Father was working for the mother’s family company from 2016 to about 2019, he usually had to work in Guangzhou on weekdays. According to the mother, after she sold her restaurant business in 2017, she became a full time housewife, taking care of the family and the children, with the assistance of 2 domestic helpers (with one of them called E) and a driver (according to the mother, that was the maternal grandmother’s driver). 13.In about mid 2020, the leukaemia condition of the maternal grandmother relapsed and the mother accompanied her to Beijing for medical treatment in September 2020, together with the mother’s younger brother and a maid. The mother had donated bone marrow for transplant to the maternal grandmother in Beijing. 14.The mother stayed in Beijing for about nine months and returned to Hong Kong on 27 June 2021. 15.Upon the mother’s return to Hong Kong, according to the father, he and the son discovered intimate communications between the mother and her boyfriend via WeChat, and the mother admitted her extra-marital affairs with her boyfriend in Beijing. The father left the former matrimonial home with the children and E, the long-term helper, who had been taking care of the children and remained particularly close to the daughter. 16.According to the mother, upon her return to Hong Kong from Beijing, without her consent, the father accessed her mobile and retrieved copy of her intimate video and photos. He further showed the video to the children, who were frightened. The father also asked the children to choose between the father and the mother, and he left the former matrimonial home with the children. 17.The parties received marital counselling. In August 2021, the father signed the tenancy agreement for a flat in Tuen Mun (“Tuen Mun Flat”) with a monthly rental of about HK$58,000. The family, including the mother, moved in. 18.According to the father, in October 2021, he discovered that the mother broke her promise and still maintained contact with her boyfriend. On 4 October 2021, the mother moved back to the former matrimonial home in Shatin, while the children stayed behind with the father in the Tuen Mun Flat. 19.According to the mother, on 4 October 2021, the father requested the mother to leave the Tuen Mun Flat and he also sent the mother’s intimate video to the maternal grandmother. She reluctantly left so as to avoid conflict in front of the children. Since then, the mother has lived separately from the father and the children, and she has difficulty in having access of the children. 20.On 19 October 2021, the father petitioned for divorce (“Old Case”) on grounds of unreasonable behaviour and adultery of the mother. The mother contested the main suit. 21.According to the mother, on about 26 October 2021, when the father returned to the former matrimonial home to get things for himself and the children, the parties had dispute and ended up with the mother calling the police. 22.Upon the court order at the hearing on 18 November 2021, interim care and control of the children was granted to the father. Interim defined access was granted to the mother, which had been varied at different hearings as follows :-
There has been no staying access during weekdays and weekends. Staying access has been granted for specific periods during some long school holidays. 23.From 24 March 2022 to 20 July 2022, the mother was away from Hong Kong to Beijing. 24.By the order of the court at the hearing on 30 June 2022, the father was ordered to file a new petition for divorce on the ground of consent one-year separation. 25.From 10 to 14 October 2022, the mother was away from Hong Kong to Singapore. 26.On 11 October 2022, the father filed the new petition (ie. the present case) based on separation since 5 October 2021 and the mother consents to divorce. 27.Since October 2022, the father’s girlfriend has started residing at the Tuen Mun Flat with the father and the children, after about 3 months of dating with the father. 28.Since February 2023, the mother has rented a flat near the Tuen Mun Flat, of about 450 square feet partitioned into a living cum sleeping area, an open kitchen and a restroom. The mother reported that it was rented with a monthly of about several thousand dollars, for access during weekdays to take place there, in order to minimise the travelling time during access. On Sunday, the mother would take the children back to the former matrimonial home in Shatin, with the monthly mortgage adjusted upwards to about HK$110,000. 29.Decree nisi was granted on 19 April 2023. 30.By consent, it was ordered at the hearing on 12 December 2023 that joint custody be granted to both the father and the mother, with care and control be granted to the father. Interim defined access regarding long school holidays had been granted to the mother. The usual removal restrictions of the children were also included in the order. 31.At the hearing on the same day, it was ordered by consent that the mother shall pay HK$35,000 per month to the father as interim interim periodical payment for the two children. 32.By the order given at the hearing on 6 May 2024, interim defined access be further varied to as follows :-
33.It was further ordered in paragraph 2 of the same order dated 6 May 2024 that “where the Social Investigation Officer has any concern(s) over the staying access, she may inform the court any time by way of a memo for directions”. 34.On 24 June 2024, the father filed a summons, with affirmation in support, for the General Leave Application. 35.In August 2024, the father, Ms A, the children and the domestic helper moved to another flat in the same estate, with a monthly rental of about HK$60,000. There are 4 bedrooms in the flat, with the children each having their own bedroom.. Evidence Social Work Officer’s evidence 36.Ms Leung, the Social Work Officer (“SWO”), gave evidence in Court and relied on the following reports (collectively “Reports”) and adopted as evidence in chief :-
37.The Reports were prepared pursuant to different orders from the court ordered at different stages of the proceedings. 38.In the 1st Report, the SWO recommended joint custody to both parents, with care and control to the father and reasonable access to the mother, including, in gist, the following :-
39.In the 2nd Report, the SWO recommended joint custody to both parents, with care and control to the father and defined access to the mother, with some minor adjustment from the previous recommendation including, in gist, including the following (with the adjustment underlined) :-
40.In the latest 3rd Report, the recommendations for the defined access are quoted as follows :-
The father’s case 41.The father gave evidence during trial. He relied on a total of 9 affirmations (with some about custody, care and control, and also access arrangement; with some about leave for temporary removal for vacation and General Leave Application; with some about the injunction application taken out by the mother) and Form J as evidence in chief. 42.The father called his girlfriend, Ms A, to be a witness, who relied on her affirmation as evidence in chief. Ms A’s evidence was about how she assisted the father in the taking care of the children, and the harmonious relationship she has with the children. 43.It is the father’s case that he agrees to all the recommendations from the SWO in the Reports, and he has been fully complying with all the orders for access. He is of the view that as the children have expressed discomfort and reluctance in staying access, and indicated that they are unwilling to have more access with the mother, the children’s views should be considered and less access should be granted. Nonetheless, the father is willing to agree to the recommendation by the SWO, to allow more access to the mother step by step. 44.The father explained that he had in fact agreed to giving the mother more access in the previous CDR hearing, but the mother did not take the offer. 45.Further, the father is of the view that given the past events, how the mother behaved and the interaction between the mother and the children, the SWO’s recommendation should be adopted, allowing more access to the mother in a step-by-step way. 46.In the closing submissions, Mr. Surman has summarised a list of aspects arising from the evidence for the court’s consideration of the mother’s evidence, showing that her application for more access than what is recommended by the SWO at this stage and her opposition to the father’s General Leave Application has no merit and should not be accepted by the court. These aspects are in fact allegations made against the mother, which she denied, and I will consider them in the analysis section below. The mother’s case 47.The mother gave evidence during trial. She relied on a total of 8 affirmations (with some about custody, care and control, and also access arrangement; with some about leave for temporary removal for vacation and General Leave Application; with some about the injunction application taken out by the mother) and Form J as evidence in chief. 48.The mother called her friend, Ms Y, to be a witness, who relied on her affirmation as evidence in chief. Ms Y is a friend and colleague of the mother. Her evidence is mainly about (a) what she observes of the loving behaviour and dedication of the mother for the children during the access time when she was present; and (b) how the father behaved in a controlling way when she was also present at meal time back in the past with her husband, the mother and the father. 49.The mother asks for more access time than those recommended by the SWO in the 3rd Report. The gist of the mother’s case is that despite the rough time in the past with the children, the relationship is improving, and it will further improve with more access time with the children. 50.The mother’s proposal, instead of the SWO’s recommendation, should be adopted, for the following main reasons :-
51.To substantiate the mother’s case, Mr. Leung had summarised the allegations against the father in the submissions, which I will further consider in the Analysis section below. 52.In order to counteract the influence of the father towards the children, it is the mother’s case that her proposal of more access arrangement should be accepted by the court. 53.Mr Leung, Counsel for the mother, submits that the mother proposes the following access arrangement for the children:-
54.It is the mother’s evidence that the father has been difficult, rigid and controlling, leaving her no room for discussion about children’s matters, eg. about the mother’s choice of the dates of long holiday access, and about the mother’s arrangement of the extra-curricular activities during her access time. The legal principles 55.In relation to the application for orders for custody, care and control and access of children of a child of family, and any matter about the upbringing of a child, it is set out in section 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, which states that :-
56.The general legal principles governing such applications are set out in s. 3 of the Guardianship of Minor Ordinance, Cap. 13, which states that :-
57.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 :-
58.I will consider those factors that are relevant. However, I do not intend to go through them point by point. Instead, I shall make general reference to some of the most relevant ones in my consideration. 59.For the General Leave Application, the general principles governing applications concerning children, as set out in section 3 of Cap. 13 also apply. Analysis of evidence 60.The parties have gone through difficult times during these proceedings. As submitted by Mr. Surman in his Opening, there were 15 previous hearings for these proceedings. Although joint custody to both parties, with care and control be to the father have been agreed, the parties cannot agree on access arrangement despite 2 previous CDR hearings. 61.The issue of temporary removal for vacation had been discussed at CDR, but no agreement could be reached, and the father has to resort to formal application, requesting the court to make a ruling for the “General Leave Application”. 62.Throughout trial, there are various allegations against each other (which I will consider in later paragraphs below) which is not unexpected, given the background of this case as I have summarised above and given the fact that the parties cannot even agree on a joint chronology. 63.It should be pointed out that in the parties’ jointly signed Statement of Agreed Issues in Dispute dated 4 October 2024, the parties have not identified any factual issues for the court’s determination. They have only identified 12 items which require my ruling for this trial :-
64.I will consider all evidence, circumstances of the case and all relevant factors, and to consider in the best interest of the children, what the care arrangements should be and whether the General Leave Application should be granted to the father. The father’s stance, including the allegations against the mother 65.For the father’s case, I refer to paragraphs 41 to 46 above. 66.The father is agreeable to all recommendations made by the SWO. He is of the view that as the SWO’s evidence and recommendations are in the best interest of the children, they should be given full weight and should be accepted by the court. On the other hand, the proposals of the mother were not made in the best interest of the children and should not be accepted by the court. 67.The father has further made many allegations against the mother, which have been summarised by Mr. Surman in his closing submissions to support his stance that the mother’s proposal should not be accepted, including mainly the following :-
68.The mother, either during trial when being cross-examined or through her counsel, Mr. Leung, replied in the following ways about the allegations against her :-
69.Even I am not ruling on these factual allegations, the last point above about whether the father’s negative views might have influenced the children’s views and feelings will be further considered below, as it may affect my consideration of how much weight to be placed on the children’s views. The mother’s stance, including the allegations against the father 70.For the mother’s case, I refer to paragraphs 47 to 54 above. 71.In the opening submissions of the mother, when summarising the behaviour of the father, Mr. Leung submitted that the father’s conduct “can only be described as alienating of the children”. 72.Alienation is not one of the factual disputes raised for this trial. Mr. Surman submitted that parental alienation was never raised at any previous hearings. Upon my request for clarification, Mr. Leung confirmed that he is not asking for determination of whether there is parental alienation, but he submitted that the hostility conduct and resentment attitude of the father towards the mother had negative impact on the children, affecting their feelings for the mother and their views about access, which the court should not undermined. 73.As summarised by Mr. Leung in the closing submissions, the mother has made various allegations against the father’s hostile conduct and resentful attitude, including :-
74.The father, either during cross-examination or through the submissions by Mr. Surman, replied in the following ways :-
75.In view of all these allegations against each other, there is no need for me to make factual determination, but these are background information for my reference. There is no point in finger pointing of what had been done wrong or not good enough in the past. The allegations will be relevant if they affect my consideration of best interest of the children for access arrangement and for the General Leave Application. It is under this context, with these allegations between the parties as stated above that I have to consider and make determination for this case. 76.I have to regard 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 all the Social Investigation Reports. The children’s views and wishes 77.SWO had interviewed the children at different occasions when she prepared the 3 Reports. She had included in her Reports the children’s views and wishes, and she had observed the interaction of the children with the mother and with the father respectively on different occasions. I have considered especially the following paragraphs in the Reports :-
78.It is noticed that as time passes, the feeling and relationship of the children towards the mother has improved, but the children are still expressing their wish that they do not prefer to have increased access, in particular increased staying access, with the mother. When the children expressed their views, as recorded in the Reports, the children had also given reasons. 79.The children are now aged 9 and 7. At the time when the 1st Report and the 2nd Report were made, they were even younger. I have to consider their understanding of the questions put by the SWO at the time of interview. Further, I have to consider whether they had been influenced or affected by the father as alleged. 80.With the 3rd Report, I have been provided with the updated information about the children and the SWO’s observation about them. In paragraph 22 of the 3rd Report, the son was observed to have joined various extra curricula activities at school. His “overall academic performance was commendable, reflecting his dedication and active engagement in class activities and discussions…… He also got good results in foundation subjects with excellent engagement particularly in science and computing showing his strong problem-solving skills and technical expertise…… He had made excellent progress throughout the academic years, showing a strong commitment to the school community.” 81.In paragraph 23 of the 3rd Report, the daughter was observed to have joined various extra curricula activities. She “achieved good results in her core subjects and very good to excellent results in foundation subjects and specialist subjects…… She was descried to be a very curious, sociable and confident pupil who was not afraid to share her ideas.” 82.I am of the view that the children has now reached the age and maturity of understanding the questions put to them by the SWO and in expressing their views and wishes. I see no reasons why their views and feelings should not be given much weight, subject to my further consideration and analysis below of the allegation by the mother that the father’s negative feelings against the mother might have influenced the children. 83.Further, the children’s views and wishes are not conclusive, as I have to consider what access arrangements will be in their best interest before making the ruling. Social Investigation Reports and the SWO’s evidence 84.The same SWO has prepared a total of 3 Reports for these proceedings, and she has been with this case for about 3 years. She has started working in the Social Welfare Department since 1998 and has been compiling Social Investigation reports for the family court since about 10 odd years ago. She is an experienced SWO and has given evidence in court in many instances. After being cross-examined by both parties, the SWO maintained her recommendations as in the 3rd Report. 85.Mr. Leung invited the court not to accept the evidence of the SWO, including the following main reasons :-
86.Mr. Leung quoted examples in his closing submissions, which I do not repeat here, as I am not convinced by his submissions. Given the background and long history of this case, it is impossible for the SWO to include everything, including some incidents suggested by the mother should be included, in the Reports. Under cross-examination, the SWO confirmed that she had considered those incidents. Having considered the entirety of the SWO’s evidence as a whole and in view of the background of the case, I am of the view that not having recorded some incidents as alleged by the mother does not undermine the credibility of the SWO or implicate she has not considered sufficiently. 87.In view of the answer of the SWO under cross-examination, they have to be considered in context. I am not convinced that the SWO had been advocating for the father and had been biased against the mother as alleged. 88.While the SWO had placed much weight on the children’s wishes, I am not convinced that she had placed too much weight. The children had expressed preference of no increase in the access with the mother, including staying access, but the SWO had recommended more access time than what the children prefer. The SWO had explained in her Reports about the reasons in reaching her conclusion and recommendation, which I accept to be a fair and reasonable analysis, with the children’s best interest in mind.
89.For this reason, Mr. Leung had given some examples, which I do not agree. First, the SWO considered giving more time to the father to spend with the children because the son expressed that as he is going to boarding school next year, he wishes to see the father more. However, “there is no mention at all from the SWO that the mother should also have an equal opportunity to spend time with the son before he left for boarding school. After all, it will also be in the best interest of the son to maintain a relationship with the mother as recognised under the equality principle”. Best interest of the children is not to be viewed only in strict equal division of the time between the parents. As explained above, not mentioning in the Report does not mean the SWO has not considered sufficiently. The best interest of the children has to be viewed in context in view of the background of the case. 90.Second, Mr. Leung commented that the SWO said she did not recommend more overnight access because there is a need to give the father more time to play with the children. The answer of the SWO has to be viewed in context. The SWO further explained that the father being the one with care and control, even if he has more time with the children during weekdays, they are different from time spent during weekends with activities other than focusing on school work. The best interest of the children in this case has to be viewed in context with their daily routine, schedule and activities at school, weekday and weekends activities and interaction and relationship with each of the parent all along and how each parent can satisfy the children’s physical, emotional and educational needs. 91.Mr. Surman submitted that it had not been raised in any of the previous hearings that the SWO has been biased, as shown in the way she prepared her Reports. 92.Considering the evidence of the SWO as a whole and in the context, I am not convinced that she had been prioritising the interests of the father on the access times. I am not convinced that the SWO has been biased in favour of the father. It could be shown in the Reports that when the mother has improvements, the SWO did report accordingly, for example, when the mother’s being late for access has improved, and in paragraph 13 of the 3rd Report, the SWO commented that “the mother demonstrated her commitment in arranging various activities for the children during access”. 93.I accept that the SWO has been the eyes and ears of the court, and she has properly and carefully considered all relevant factors when preparing for the Reports and making recommendations. I give full weight to her evidence. 94.But I will not adopt the recommendations blindly. In view of some of the recommendations, I am of the view that some adjustments should be made in the interest of the children, which I will explain below. Whether the father has influenced the views and wishes of the children 95.With the way the mother is cross-examined and the strong words used in Mr. Surman’s submissions, in which counsel must be acting under client’s instructions, I have to consider the strength of Mr. Leung’s submissions that the father’s negative views, conduct and attitude towards the mother may possibly have influenced the children intentionally or subconsciously. 96.According to Mr. Leung, this is exactly the reason why more time should be given to the mother and why the mother’s suggestions should be adopted. With respect, after careful consideration of the evidence and background of the case, I cannot agree to these submissions. 97.The evidence has to be considered in context, and I have the following observations :-
98.It is not in dispute that there is close and good relationship between the father and the children. I have also considered how the father can satisfy the physical, emotional and educational needs of the children, which is shown in their interaction, as explained in the Reports and I give full weight. 99.I cannot deny that the father’s views towards the mother, if made expressly, may sub-consciously affect the children. It is fair to say, from the background of this case, some of the father’s comments of the mother (especially about the way the mother communicated with the children) may stem from huge difference in the living style of the parents, and the children are more inclined to the father’s way of living an active and disciplined life. But I am not convinced that the father intends to harm the relationship between the mother and the children. 100.With the reasons explained above, I am not convinced that the comments from the father against the mother have influenced the children to the extent that it should be a determining factor for me to follow the mother’s proposal of the extent of access to be increased to at this stage. 101.I accept that both parents love the children very much, and I accept that maintaining good relationship with both parents will be beneficial to the children. More time and more access given to the mother may further improve her relationship with the children, but the question is how much more and at what stage. What access arrangements should be ordered 102.Mr. Leung submitted in the opening that “the mother accepts and totally understands that the children still may experience unease towards increased access time with her, but this can be resolved by introducing a phased and progressive increase in the mother’s access time so that the children can get used to spending more time with the mother gradually”, which I appreciate and agree. The question is increase to what extent will be in the best interest of the children. 103.There are revised access arrangements as suggested by the SWO in the 3rd Report. The recommendations by SWO was not agreed by the mother, as she suggests a bigger step forward. It is in this context and also by adopting my analysis above that I have to consider and make a ruling on the different aspects of the access arrangement. 104.I refer to paragraph 63 above, listing out the 12 items identified and agreed by the parties to be ruled by me. Items (4) and (5) have been agreed. 105.Before I make the ruling, I have considered especially the following :-
106.For item (1), ie. weekday access, the difference is whether the end time should be extended from 7:00 pm to 8:00 pm or just 7:15 pm (or extended to 7:30 pm if the children would like to have dinner with the mother). I have considered the parties’ stance, the SWO’s position and also the children’s wishes and reasons. I accept the children’s reason of hoping to go back home earlier on weekday is justified, but at the same time, if having dinner with the mother during weekday, 7:00 pm would be too rush. I am of the view that it is in the children’s interest to order the end time at 7:15 pm, but there has to be at least once every 2 weeks during weekday access that the end time should be at 7:30 pm. 107.For item (2), ie. weekend access, in view of the previous staying access and in particular to the children’s wishes and their schedule, I am of the view that taking it step by step as recommended by the SWO is in the children’s best interest. 108.For item (3), ie. long holidays, the mother proposes a defined first half and second half of the long holiday between the parties, while the father is of the view that the exact dates to be discussed and agreed by both parties with consideration of the children’s proposed and scheduled activities. In view of the previous staying access and in particular to the children’s wishes and their schedule, I am of the view that taking it step by step as recommended by the SWO about the number of staying access is in the children’s best interest, but (a) adjustment will have to be made in terms of the timing of the 2 phrases; and (b) for the 2nd phrase, “if the children agrees” should be deleted. Further, I keep the exact dates to be agreed by the parties, as children’s activities schedule can be considered and accommodated as much as possible. I repeat paragraph 105(e) above. 109.For item (6), ie. non-access days communication, given the background of this case, I agree with the SWO’s recommendation that the children can call the mother whenever they like, instead of the mother’s proposal to have fixed video access during non-access days. 110.For item (7), ie. pick up arrangement, I do not see the mother’s proposal more in the best interest of the children, compared to the SWO’s recommendation. Factually, the mother has a driver whom she can instruct to help with access. I therefore adopt the recommendation as in the 2nd Report, ie. all pick-up and drop off points at the father’s abode or to be agreed between the parties. 111.For item (8), given the schedule of the children, I am of the view that the proposal of the mother that there be make up access within 2 weeks is not in the best interest of the children. I therefore will not order such make-up access, but the parties are at liberty to consider and agree on further access, eg. making up during long school holiday. 112.For items (9) and (10), I notice that they have been covered under the preamble of the order dated 6 May 2024, which had not been discharged and are still in force. I do not think the proposal of the mother to further revise is necessary. 113.For item (11), ie. arrangement of activities during access, I agree that in principle, the parties should not fix activities at the time when the children will be with the other side, but discussion of the children’s activities and schedule is necessary, so that there can be flexible arrangement, in the best interest of the parties. General Leave Application 114.For these proceedings, the usual removal direction for travel had been granted, as follows :-
115.The father filed summons for General Leave Application. In the application, the father asks for general leave be granted to him to take the children out of the jurisdiction of Hong Kong from time to time for the purpose of vacation and he confirms that he is willing to make the following undertaking to the court and to the mother that :-
116.The father further confirms that the mother “can call the children during the trip out of Hong Kong”. The application is opposed by the mother. 117.Mr. Surman drew the court’s attention to the following to support the application, including :-
118.Mr. Surman emphasised that the affirmations filed for the General Leave Application has shown the difficulties the father has faced with the mother’s unco-opeartive attitude. Even with the mother’s conditions (such as calling the children during the overseas trip and the father providing photographs of the trip), which the father agrees, the mother still opposes, showing that the mother is being so unco-operative to the extent that she has not put the children’s interests first. Her opposition is simply without basis and it is simply impossible for the children to continue to be held hostage to the mother’s intransigence. 119.The mother opposed to the application and disagreed that she had unreasonably withheld her consent. Mr. Leung submitted that the reasons of the mother’s opposition include the following :-
120.Mr. Leung emphasised that the usual removal direction is necessary to ensure that the parties communicate with each other and co-ordinate to make holiday plans that are in the children’s best interest. The mother is, in principle, willing to give her consent provided some undertakings are given by the father. I will not repeat the parts parties can agree. The main differences, as I identified, are :-
121.I notice there are numerous correspondence exhibited in the affirmations the parties relied on for the application. Many of them include multi matters, not just about removal of the children for vacation. Having considered the affirmations filed for the application, including the exhibits, I am of the view that there is no need to make a ruling or going into detail as to who is right or who is wrong in this matter, or rule on any specific letter, or about whether the wife has been unco-operative in failing to give a definite answer whether agreeable to give consent for the children to travel overseas. 122.What I have to consider is not only who has been unco-operative and who is there to blame, the children’s best interest should be the paramount consideration. 123.I have considered especially the following :-
124.With the reasons aforesaid, I am of the view that granting general leave to the father at this stage does not serve the best interest of the children and the application be dismissed. Conclusion 125.With the reasons aforesaid, I make the following orders:-
Costs 126.As children matters have been involved, I order that there be no order as to costs for the access of the children and for the General Leave Application, including all costs reserved. This is a costs order on a nisi basis, which shall be made absolute within 14 days.
Mr. Surman instructed by Messrs. Cheung Yan & Associates for the petitioner Mr. Eric Leung instructed by Messrs. Haldanes for the respondent |
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