W v. F

FCMC 809/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 809 OF 2004

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BETWEEN

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Coram:   Deputy Judge C.K. Chan in Chambers

Date of Hearing:   23 May 2005

Date of Judgment:   2 June 2005

J U D G M E N T

1.In this hearing, I have to deal with the parties’ cross applications for variation of the Court’s order made on 15 October 2004 on the interim access to the three children of the family.

Background

2.The Petitioner mother is now aged 42, a housewife and the Respondent father aged 45, a solicitor by occupation. I shall refer to them as mother and father in this judgment.

3.The parties married in 1996 and three children were born out of the wedlock. They are:

(1)     S, a boy now aged 7;

(2)     Q, a boy now aged 5; and

(3)     K, a girl now aged 2

4.On 31 January 2004, the mother filed a petition for divorce based on the ground of unreasonable behaviour. Subsequently and by consent, the ground for divorce was amended to adultery. On 6 October 2004, a decree nisi was granted and the First Appointment for Financial Dispute Resolution (on custody and maintenance) was adjourned sine die with liberty to restore.

5.The parties separated in about March 2004 when the mother moved out of the matrimonial home with the three children and stayed in an apartment in Queensway. I was informed at the hearing that a house has been bought recently and now the mother and the children are living in Clear Water Bay.

6.As far as the arrangement for interim access is concerned, there have been two orders made by this court so far.

7.The first order was made by Deputy Judge D’almada Remedios on 17 March 2004. I think it serves no useful purpose for me to go into the details of that order. The father was not satisfied with that order and an application for variation was made.

8.The application was heard by HH Judge Carlson on 14 October 2004 and on 15 October 2004, he made the following order on interim access to the three children of the family:

(1)	On a four weekly cycle:
	(i)	Week 1, the father do have access from noon on Saturday until Monday morning, when the father is to take the children to their respective schools on Monday morning;
	(ii)	Week 2, the children to remain with the mother;
	(iii)	Week 3, the father to have access from noon on Saturday until Monday morning, when the father is to take the children to their respective schools on Monday morning;
	(iv)	Week 4, the father to have access on Sunday from 9:30 am until 7:00 pm;
(2)	In addition to (1) above, the father to have access on every Thursday from 3:00 pm to 8:00 pm.

9.The mother was not satisfied with the above order and she issued a summons asking for a variation on 15 February 2005. The father was equally dissatisfied with the order and he issued his summons for variation on 23 March 2005.

The Mother’s Grounds for Variation

10.The mother has filed an affirmation in support of her application. I think she has three main complaints:

(1)	With the present arrangement, the children are spending most of their free time with the father whilst the mother’s role is relegated to more like a caregiver only;
(2)	The father has not taken good care of the children in terms of their studies; and
(3)	The present arrangement has interrupted with the routine that the children used to have in the past.

11.In her affirmation, the mother testifies that the school hours of the children are from 8:30 am to 3:00 pm. After school, the children are fully occupied by extracurricular activities which include yoga, ballet (for K), digital arts, judo, ice skating and ice hockey classes from Monday to Wednesday. Thursday is the access day by the father. For Friday, it is the play day when the children will meet their friends on a regular basis. For Saturday morning, the children will attend counseling sessions for an hour. With this tight schedule, the only recreational time that was left to the mother is the second weekend. The mother said this is simply not enough and not fair to her.

12.The mother also complains that during the access to the children, the father has failed to supervise the home works of the boys properly. The husband always gives recreation a much higher priority than home works. She says it has made her job much more difficult when the children are returned to her care after access.

13.The last complaint is that with the present access arrangement, the children just do not have a simple routine to follow in their daily lives. Furthermore, by returning the children at 8:00 pm on Thursday evening, it means that the children cannot go to bed by 7:30pm as they use to do everyday in the mother’s care. The arrangement of the father bringing the children to school on Monday mornings from Sai Kung also means that the children have to get up very early because of the longer journey.

14.All these are unsatisfactory and so the mother makes certain proposals in her affirmation. However, I think it is now unnecessary to go into details of those proposals as I was informed at the hearing that the mother is now willing to accept the proposals put forward by the social welfare officer except with some very minor reservations.

Social Welfare Officer’s Recommendations

15.Ms. Lau of the Social Welfare Department has prepared a very useful report. According to her, both parents have demonstrated themselves to be competent and loving parents. It seems that all three children are under their proper care. They are having healthy growth and satisfactory behaviours. Ms. Lau is also of the view that a set of routine, schedule and the same surroundings are very important for the children’s normal development to which I entirely agree. As a result, Ms. Lau made the following recommendations on access:

(1)	On Week 1 and Week 3, the father do have access to the children from Friday after school to Saturday morning;
(2)	On Week 2 and Week 4, the father do have access to the children from Saturday noon to Monday morning;
(3)	Visiting access from 5:00 pm to 8:00 pm on father’s day and the birthday of the father, 2 January of every year. The same applies to mother’s day and the birthday of the mother, 7 September of every year;
(4)	In the event that normal access as defined has to be cancelled due to the children’s tuition class, interest class and the father’s business trip, etc. compensation for such loss of access will be arranged through the parents’ telephone contacts, at least three days prior notice. Flexibility should be applied in this case.

16.At one point, counsel for the mother submitted that the recommendation on Week 1 and Week 3 were unclear since it did not specify until what time the access should end. It was later clarified by Ms. Lau in her supplemental report that by “Saturday morning”, she meant the early part of the day between dawn and noon subject to the parties’ agreement.

17.The mother’s latest stance is that she would agree to recommendations (1) and (2) but the special arrangements on father’s day, mother’s day and the parties’ birthdays should be extended to the whole day instead of limiting them to three hours. As to the last recommendation, she views that it is unnecessary and to a certain extent undesirable because that would only give rise to further conflicts between the parties.

The Father’s Grounds for Variation

18.As far as I can gather from the father’s affidavit in support of his application for variation, one of his main grounds for variation is that under the existing order for access, the children are not really “shared” between the parties. According to him, during the weekend in Week 4, he was only given access from 9:30 am on Sunday and has to return them to the mother at 7:00 am. This means that for this particular weekend, the mother will have Friday, Saturday and Sunday nights with the children whilst he is only given the daytime on Sunday.

19.In his affidavit, he also objected to the mother’s proposal for abolishing the access on Thursday. At the hearing, I think the father’s position has changed a little in that he does not seem to insist on Thursday access provided he would be given his fair share of access during the weekends. By fair share, he asked the court to give him slightly more than 50% of the weekend time because he would like to have more Sunday mornings with the boys to play rugby. Counsel for the father has submitted four different proposals in the form of diagrams for the court’s consideration.

20.The father also requests more flexibility in the access arrangement because of his business commitments. He complained that the mother has failed to respond to his request for swapping some of the access days when he has to attend partners’ meetings.

The Law

21.The statutory provisions governing the right of access to the children of the family can be found in S.10 of the Guardianship of Minors Ordinance, Cap.13 which are as follows:

“10.	Orders for custody and maintenance on application of either parent
	(1)	The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-
		(a)	the custody of the minor; and
		(b)	the right of access to the minor of either of his parents,
		as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents.
	(2)	………
	(3)	……….”

22.S.10 is an reiteration of the general principle that the welfare of the children is the paramount consideration in respect all applications concerning their custody and upbringing as contained in S.3 of the same Ordinance:

“3.	General Principles
	(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 (whether or not a court as defined in section 2) the court-
			(i)	shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to-
				(A)	the wishes 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;
		(b)	………..
		…………..”

23.It is obvious from the above sections that when a court has to deal with the issue of access to a child, it has to bear in mind the principle that the well being of the child is the first and paramount consideration. Therefore, the right of access is more a right of the child, not a right of the parents. Applying the said principle to our present case, the right of the father to have a fair share of the children’s weekends is always subject to the best interests of the children.

Best Interests of the Children

24.I think custody and access cases are always difficult to decide because there are so many competing interests being involved. Sometimes it is quite difficult to ascertain what the best interests of the children are. However, I do share the view of the social welfare officer that a set of simple and fixed routine or schedule are very important for the normal development of the children. This is particular so when we are dealing with children of very young ages, like K and Q and to a lesser extent S.

25.I am glad to see that both parents agree on the cancellation of Thursday access as I think these midweek interruptions are certainly not in the best interests of the children. As to the weekends, I tend to agree with the proposals of the social welfare officer as they provide a relatively simple schedule for the children to follow and at the same time, produce a more or less equal division of the weekends between the parents.

26.I do understand that the father would like to have more Sunday mornings with the children so that he can play more mini rugby with S and Q. However, that desire has to be balanced with the desire of the mother to spend quality time with the children as well. I am not convinced that by not allowing the extra Sunday mornings as requested by the father, the best interest of the children will be affected in any way. Besides, if the boys are really so fond of rugby, I trust that the mother will no doubt consider to take them to the game even though it was her turn to have the children on that Sunday.

27.As to the third recommendation of the Social Welfare Officer concerning the access arrangement on the father’s day, mother’s day and their respective birthdays, I think both parties have no objection to such an arrangement and I see no reason why they should not be extended to cover the whole day.

28.As to the last recommendation that there should be flexibility in rearranging access in case that one party is not in a position to exercise such access, it is my view that there should always be some flexibility in children access in order to ensure that the children would not be left on their own in case one party (e.g. the father has to go on a business trip) is not available during a particular access period. Such rearrangement of access time should of course be subject to the parties’ mutual consent and I shall leave that to the parties’ good judgment.

Order

29.Based on the above reasons, the order on interim access to the three children of the family be varied and the father do have interim access on a 4-weekly cycle as follows:

(1)	on Week 1 and Week 3, the father do have access to the children from Friday after school to Saturday noon;
(2)	on Week 2 and Week 4, the father do have access from Saturday noon to Monday morning when the father shall take the children directly to school;
(3)	Visiting access for the whole day (from 9:00 am to 8:00 pm) on father’s day and the father ‘s birthday on 2 January. If the father’s birthday shall fall on a school day, then the access time shall be from 3:00 pm to 8:00 pm. The same arrangement would apply to the mother’s day and the mother’s birthday on 7 September of every year so that the mother would also have the whole day on those two special days.
(4)	In the event that normal access as defined has to be cancelled, the parties be at liberty to rearrange the access subject to their mutual agreement.

30.I will also order that the new cycle shall be implemented immediately after the end of the existing 4-weekly cycle.

Costs

31.I can see that both parties are doing what they consider as the best arrangement for the children and I do not see any party as winning or losing in these applications. Therefore, I will grant an order nisi that each party to bear his own costs which shall be made absolute on the expiry of 14 days from the handing down of this judgment.

Mr. Neal Clough, instructed by Messrs. Chaine, Chow & Barbara Hung, for the Petitioner

Mr. David Pilbrow, S.C. instructed by Messrs. Hampton, Winter & Glynn, for the Respondent

Please refer to CACV130/2011 for the relevant appeal(s) to the Court of Appeal.