Ykl v. Cml
Read the full judgment text of FCMC 3261/2004 on BabelCite. This Family Court judgment before Deputy District Judge H F Woo.
Matrimonial Causes – Custody – Joint Custody – Access – Welfare of Children – Guardianship of Minors Ordinance – Whether joint custody feasible given parental conflict – Social Welfare Officer recommendation – Sole custody to Mother preferred – Access order confirmed – Costs against Respondent
Legal issues: Joint Custody Application · Access Arrangement · Costs of Application
Outcome: Custody granted to Mother; Respondent's application for joint custody dismissed; existing access order confirmed; Respondent ordered to pay costs.
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FCMC 3261 of 2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 3261 OF 2004 _________________ BETWEEN
_________________ Coram : Deputy District Judge H F Woo in Chambers (Not open to public) Date of Hearing : 28th February 2006, 1st March 2006, 15th -16th and 21st June 2006 Date of Handing Down of Judgment : 24th July 2006 _________________ J U D G M E N T _________________ 1. This is the Respondent’s application for joint custody of the two children of the family, with the care and control of them to the Petitioner, which is opposed by the Petitioner who claims sole custody care and control of them, with access to the Respondent. Background of the Application of Respondent 2. On 8th January 1993 the Petitioner (“the Mother”) married the Respondent (“the Father”). Both of them were secondary school teachers. The Petitioner gave birth to the daughter in December 1996 and the son in November 1998. 3. The family has been residing at TP since 1996 (“the matrimonial home”). 4. However in November 2000 the Respondent moved out from the matrimonial home and lived separately from the Children and the Petitioner. 5. In March 2004, the Petitioner petitioned for divorce on the ground of 2 year separation. She prayed for the custody of the Children. 6. The Petitioner is now aged 39 , earning $37,500 per month as a secondary school teacher. 7. The daughter aged 9 is a Primary 4 student. The son aged 7 is a Primary 2 student. Both are studying at the same school in Kowloon Tong. The Children are still residing at the matrimonial home with the Mother. 8. The Respondent aged 52 is a Senior Curriculum Development Officer earning about $68,000 per month. He is living in a rented unit at Lantau since June 2005. 9. The first Form 4 was filled in and signed by the Respondent indicating his wish to be heard on the claims only on ancillary relief. This Form was filed on 21st April 2004. The Respondent’s Notice of Change of Solicitors was filed on 10th May 2004. A fresh Form 4 was filed on 11th May 2004 with indication of the Respondent’s wish to be heard also on the claims of custody and access issues. 10. Form E of the parties were exchanged on 17th May 2004. First Appointment of the FDR was held on 10th June 2004. The Court ordered, inter alia , that :-
11. The Social Welfare Officer, Ms M, accordingly prepared a report on 19th August 2004. 12. The Respondent on 16th December 2004 issued a summons for an application for the joint custody of the Children to be granted to him and the Petitioner, with care and control to the Petitioner. 13. It was ordered that the hearing on custody issue was to be fixed after the pronouncement of the Decree Nisi. The Decree Nisi was pronounced on 7th March 2005. 14. On the adjourned First Appointment of FDR on 17th December 2004, the Court ordered, inter alia that :-
15. The Respondent filed an affidavit on 23rd July 2005 to support his application for joint custody. The Petitioner filed in Reply an affidavit opposing the Respondent’s application on 5th September 2005. 16. The Social Welfare Officer accordingly prepared an updated social welfare report regarding the joint custody issue of the 2 Children on 7th February 2006 for the purpose of the present hearing before this Court. She presented herself as a witness for examination by the parties at the trial and produced her 2 detailed reports as evidence and for the consideration of the Court. Contents of the reports included information and observations collected from interviews with the Petitioner, the Respondent and the 2 Children, collateral contacts with the Respondent’s parents, home visits and joint sessions between the Parents and the Children. 17. Both the Petitioner and the Respondent gave evidence and were subject to cross-examination by their opposing party at the hearing. Family Background 18. The Father, locally born, is the eldest son of the family. His only younger sister has migrated to United States for over 10 years while his parents are living in Hong Kong. The family relationship was said to be close and satisfactory. Having graduated from the Chinese University of Hong Kong, the Father worked as a secondary school teacher in 1980s. He obtained his master degree at the University of Hong Kong in 1992. He joined the Education Department in 1993 to work as a Senior Curriculum Officer on reform of local curriculum. 19. The Mother was also born and brought up in Hong Kong. She is the eldest of 3 siblings. Her father died in 1999 while her mother and 2 younger brothers are living together in Hong Kong. The Mother graduated from the HKTT C in 1989 and has been working as a secondary school teacher since then. Though living separately, the Mother reportedly kept close contacts with her maiden family. 20. The couple met at their workplace and became acquainted in 1991. They married in June 1993 and the Mother gave birth to their daughter in December 1996 and their son in November 1998. 21. The Mother and the paternal grandmother used to be the main carer of the daughter after her birth. Notwithstanding having full-time childcare assistance from a domestic helper months later, the paternal grandmother kept visiting the Children frequently and regularly. The Mother usually assumed the childcare responsibility after work while the Father seldom involved himself in the day-to-day childcare. The Father’s case (i) Present Condition of Father 22. The Father had lived in a rented flat at a monthly rental of $6,800 in Central since 17th April 2004. The flat was self-sufficient and measured about 38 square meters with a bedroom and a study one. It was simply furnished and fairly kept. 23. The Father moved to the present rented flat in TC in June 2005. The current rental is $8,000 per month. The flat measured 95 square meters is spacious, adequately furnished and tidily kept. It comprises three bedrooms , among which, one is served as a study room and the other as a storeroom for books and educational materials. The Father plans to purchase some mattresses and other articles to prepare for the Children’s visits during staying access in future. 24. The Father works in the Education and Manpower Bureau Curriculum Development Institute as a Senior Curriculum Development Officer (Chinese Language Education) on non-civil service agreement terms. The current contract has just been renewed to 2009. His monthly income is around $68,000. He has heavy workload and very long working hours. He barely takes his leisure off work, often in Saturday afternoon, or with in the short break after work. He likes reading, watching films or documentaries and having a walk. He attends Church on Sundays. The Father expresses that he has a girlfriend and their relationship is stable. (ii) Father’s version on Marital Discord 25. The Father maintained that the deterioration of marital relationship was due to the couple’s incompatible characters, values and interests as well as limited communication. Like the Mother, he was greatly frustrated and depressed by their marital problem. The Father revealed to SWO in 2004 that the couple always held diverse views. He did not have much desire to talk to the Mother and found it difficult to communicate with her. He tried to tolerate and hoped that the marriage could be kept for the Children’s sake and the relationship would improve eventually, but the relationship with her deteriorated to the extent that the Respondent thought it appropriate to move out of the matrimonial home in late 2000. Nevertheless the Mother chose to file a divorce petition in March 2003 and the Respondent ultimately accepted the Mother’s decision to divorce but felt heartbroken while the latter raised excessive demands on the matter of ancillary relief. (iii) Father’s Relationship with Children 26. When the daughter was a baby, the Father participated in her care and development. When the son was born in 1998, the Father be came busier at work but he enjoyed offering the same parental care for the son. 27. After the separation in 2000, the Father met the Children once a week. He took the initiative to chat with them on their school -life, natural science and current news. He brought them to various museums and parks, and bought them books and shared the joy of reading with them. They enjoyed the time together. During the weekdays, He rang them and talked to them. Under the guidance of the Father, the daughter began to practise Chinese calligraphy and Chinese painting with genuine interest. The Father once bought the daughter a ballet dress to encourage her taking up ballet. As a result she started to learn ballet. 28. Whilst the Mother arranged several interesting courses for the Children on Saturdays, the Father would join the Children in their classes at times. 29. The Father considered himself to be particularly involved in the Children’s education and outdoor activities. When the daughter was three, she attended kindergarten at the YCI School. When the Father learned that the daughter was in need of extra tuition on Chinese writing, he wanted to prevent the daughter’s wrist muscle from being affected by writing Chinese characters at too early an age, and he then discussed with the Petitioner about changing school for the daughter and managed to obtain her agreement. The CP school turned out to be a more suitable school for the daughter. The Father warranted that he would adjust his work schedule to suit attendance of his Children’s school functions, like, the Open Day of school in June 2005 and the Parents Teachers Meeting. 30. The Father stressed that having indulged his career in education at the management level for over ten years, he has his own professional network of frontline educators which he believed would help the parents to make more informed decisions in the Children’s education. 31. The Father often drove the Children to the countryside procuring them to learn and enjoy nature as much as possible. He bought the Children books to enhance their general knowledge. He also took the Children to beaches and mudflats. They enjoyed very much in the outdoor activities. The Father produced a set of photo Album (Exhibit R – 1) to show his participation in the Children’s upbringing. (iv) Father’s Attitude towards Custody and Access Custody 32. The Father had initially expressed his wish to claim for the sole custody of the Children in 2004 as he believed that he was more capable of providing a nurturing environment for the Children on their intellectual development and he managed to understand them and to address to their emotional needs. The Father stated that he loved and cared about the Children very much and worried that he would lose chances to contact them if he could not obtain their custody. 33. The Father regarded the Mother’s childcare quality to be above general standard but not reaching his own. He observed that the Mother had easily lost her patience while managing the Children’s temper and behaviour and had sometimes failed to understand their emotional needs. He did not agree with the Mother’s disciplinary style. 34. On childcare plan, the Father aimed to hire a domestic helper and to seek childcare assistance from the paternal grandparents. He would keep his employment until the expiry of the contract, i.e. in 2006 and purchase a flat to live with the Children and the paternal grandparents. He would also reshuffle his working time so as to spend more time with the Children. 35. Having considered his work commitment and financial capacity, the Father however viewed that his childcare plan might be desirably carried out only after the expiry of his present job contract. 36. He recognized the Children’s close bond with the Mother, their needs for continuity of care and the feasibility of his childcare plan. He believe s that the Mother genuinely loves the Children and will protect their best interests. Given her past efforts in looking after the Children, the Father agreed that the Mother deserves the right to make the decision for the Children. Joint Custody 37. Though recognizing the Mother’s childcare experiences and her good relationship with the Children, the Father strongly expressed his wish to share custody with the Mother so that he could participate in the childcare issues. He agreed that the care and control of the Children be continuously vested with the Mother. He felt disappointed with the Mother’s denial of his proposal. He firmly believed that the best way to help the Children to cope with the parents’ divorce was their collaboration on the Children’s welfare, and joint custody was the desirable mode to facilitate the divorced parents to work together and complement each other in the best interest of the Children. 38. The Father opined that the Mother was good at arranging childcare and procuring more exposures of the Children while he could complement her by inspiring the Children’s own motivation in search of knowledge and by guiding their intellectual development. He could provide good advice on the Children’s education and medical needs, upon reliance of his own expertise and network with renowned medical practitioners. His access to the Children would accordingly be secured. 39. The Father admitted that communication between the Mother and him was still far from being satisfactory but improving. Having gradually let go his unhappiness from the marital failure, the Father felt more able and more comfortable to initiate contacts with the Mother. He managed to accept and respect the Mother’s decision on changing school last year although the ultimate outcome did not meet that desired. Besides, in order to co-operate on parenting, he often encouraged the Children to listen to the Mother’s guidance. He felt the Mother’s attitude towards him having improved. He envisaged better co-operation. 40. The Father criticised the Mother to be childish and dominant. He believe s that if joint custody is not granted, the Mother will be uncooperative. She may not involve him in significant childcare issues nor even listen to his advice. He is worried that he will not be informed when the Children change their school or residential address. He also fears that the Mother will “compress” his access time and he will ultimately lose his connection with the Children. Access 41. Since the court hearing on 25th July 2005, the Father has staying access and day access with the Children on alternate weeks. 42. During staying access on Saturdays, the Father picked up the Children at TPSA Ltd Stadium where the daughter had her ballet class , or at the matrimonial home at about 7:45 p.m. He then drove the Children to the paternal grandparents’ home in TKO and had dinner together. After dinner, the Father and the Children watched educational or musical programmes, enjoyed music and played games. On Sunday morning, after having breakfast, the Father sent the Children to join the Mother at church at 11:00 a.m. 43. During day access on Sundays, the Father arrived at the matrimonial home between 4:00 p.m. to 6:00 p.m., subject to his and the Children’s available time. He would chat or play with the Children at their home or go out for meals with them. The access usually ended at 8:00 p.m. 44. The Father treasured the arrangement of staying access so that he could spend more time with the Children. However, he opined that the current access arrangement was just acceptable. He considered that the Saturday staying access arrangement was too hurried as he could pick the Children up only after 7:45 p.m. He hoped to have longer staying access on alternate weeks, say commencing from 4:00 p.m. on Saturdays to 11:00 a.m. on Sundays. If it is possible, he will rather withdraw his request for day access on alternate Sundays. Overseas Trips 45. The Father hoped to bring the Children for short overseas trips , with a view to attending cultural exhibitions and activities. The Mother’s case (i) Mother’s version on Marital Discord 46. The Mother shared that the marital relationship used to be satisfactory but gradually became tenuous. The Father busily engaged himself in work and often showed apathetic attitude towards her. 47. She said her relationship with the Father has changed since 1996. At that time, she was pregnant with the daughter. The Father worked for very long hours. Sometimes, he came home at around 11:00 p.m. or even 1:00 a.m. to 2:00 a.m. and had to attend meetings on Sundays. She was always left alone at home. The situation was not improved. They spoke lesser and lesser. 48. The Mother stated that she was the one mainly looking after the Children after their birth with the assistance of the maid. The Father offered very little help to look after their daughter and practically offered no help to take care of the son. He always came back after the Children were asleep and rarely spent time with them. The Mother realised there were problems with her marriage, she has as early as in 1998 sought help on her marital problems from their church preacher. However she could not secure the Father’s attendance for discussion session and there was no marked improvement on their relationship. 49. In fact, in late 2000, to minimize the physical exhaustion travelling between home and work, the Father chose to move out of their matrimonial home to a place near his office in W. At that time the son just reached 2 years old. 50. The Father refused to disclose to the Mother his residential address and his home phone number despite her numerous requests. Even his parents (to whom he claimed to be close) did not know where he lives. The Mother had difficulty to reach him as he used to transfer his mobile phone to voicemail, or not answering the call at night time. The Mother was frustrated by their marital problem. 51. The Mother recollected that the Father initially managed to return home and spend weekends with her and the Children. But gradually, he just briefly visited them once a week. Sometimes, he did not turn up to meet the Children as expected, without notifying them. 52. The Mother was further frustrated by the Father’s apathy and little concern over her and the Children. To end the unhealthy and torturing relationship, she decided to file a petition for divorce in early 2004. Having heard the Mother’s intention to divorce, the Father hesitated a little but agreed to it. At the same time he suggested they should have the family property split and that she could retain the custody of the Children. 53. The Mother recalled that ever since the Father left the matrimonial home in 2000 until his Application for joint custody in 2004, the Father had never asked what extra curricular activities the Children participate d and their timetable. He did not really know what the Children were interested in and had never enquired what classes the Children were attending. He did not take the Children for outdoor activities as often as he claimed. 54. Only until recently, when the Father suddenly claimed for joint custody he then started to pay attention to the Children’s activities. 55. The Mother did not agree that the Father had attended several school functions. She claimed that the Father only attended the School Open day last year and joined them in the middle of the function. It has always been the Petitioner who attended school functions, like the parents’day, school meetings and school voluntarily work programme. (ii) Present Condition of Mother 56. The Mother, the Children and their maid are living in the matrimonial home , at the monthly mortgage instalment payment of HK$22,000. The flat, measured 120 square meters, consists of 3 bedrooms and a servant’s room. The Mother occupies a studio bedroom and the Children share another bedroom. The maid sleeps in the servant’s room while the remaining bedroom is served as a study. The flat is adequately furnished, clean and quite tidily kept. Its lighting and ventilation are satisfactory. 57. The Mother is still working as a secondary school teacher in SKW. She has regular working hours on weekdays and rests on weekends and school holidays. She is now studying a part-time degree course in accounting and attends classes twice a week in the evening. The course is expected to be completed by early 2007. The Children supported her with encouragement. The Mother felt she had shown the Children the value and importance of being able to receive education. 58. The Mother usually returns home from work before 7:00 p.m. and have dinner with the Children. After dinner, she supervise s, their homework. On Sundays, she attends church with the Children. At leisure, she plays games, makes handiwork with the Children. She arranges outdoor activities or social gatherings for them. She described her relationship with the Children to be very close and intimate. She spends time to read materials on parenting and childrearing. She encouraged the Children to participate in competitions and performances. Her relationship with them was described to be close and intimate. She expressed that she has no boyfriend or vice habits. 59. Notwithstanding that the Father made monthly financial contribution towards the property’s monthly instalment, the Children’s school bus fees and family expenses, the Mother claimed to have a tight budget as her monthly income was almost exhausted on supporting the family, including their maintenance, the Children’s expenses on extra-curriculum activities, the maid’s wages and so on. (iii) Mother’s attitude of the Mother towards Custody and Access Custody 60. The Mother expressed strong desire to get sole custody of the Children who have been living with her since their birth. Having participated in the childcare all these years, the Mother represented that to be familiar with the Children’s temperament, interests and daily routines and was confident of providing good quality of care to the Children. She considered the mother-child relationship to be good and mutually trusted. 61. She mentioned that the Father had not participated in the childcare for many years. She was worried that the Father, being a workaholic, could hardly spare sufficient time with the Children or lead them a healthy social life. Given his limited childcare involvement as well as his reluctance to render better financial provision to the Children, the Mother doubted the Father’s commitment in performing parental responsibility. 62. Having shown her strong childcare commitment, adequate childcare knowledge and experiences as well as her strong social network, the Mother was confident that she was capable and resourceful enough to take care of the childcare matters. She requested to have sole custody of the Children. However, the Mother was convinced that the Father should participate in the Children’s matters at different development stages, therefore, she agreed to inform and consult the Father on the Children’s significant schooling and health issues. Joint Custody 63. The Mother firmly believed that she and the Father could hardly collaborate with each other and thus did not agree to share child custody with him. In order to free herself from the pain stemmed from the marital failure, the Mother had avoided making contacts with the Father for a long time. Their communication was little and rather superficial in the recent years. 64. Over the years of court disputes on the custodial arrangement as well as ancillary relief, the Mother found that her dissatisfaction of the Father had escalated and she felt it ha d become more difficult to trust him and to relate with him. 65. She questioned his sincerity to communicate or collaborate with her. She perceived that he inclined to push her by court orders instead of understanding her situations . She pointed out that he had failed to inform her directly of his condition, like his residential address. More importantly, she had different views and values over parenting and childrearing with the Father. She commented that the Father was an idealist who just gave his views, directions and even commands but overlooked the actualities that she faced and how she felt or viewed. He also looked down upon her and overlooked the actual need and wishes of the Children. She was tired of negotiating with him over their disagreements. 66. The Mother believed that the collaboration and the effectiveness of communications between her and the Father could not be facilitated even under a joint custody order. If joint custody is granted, she will stay passively and avoid any contacts with him in order to avoid having conflicts or emotional disturbance caused by their disagreements. Access 67. Regarding access, the Mother stated that she would let the Father have reasonable access to the Children. She stressed that she had never discredited the Father in front of the Children or placed obstacles on access arrangement. On the contrary, she used to help the Children make connections with the Father, e.g. accompanying the Children to make their own gifts for the Father on Father’s Day. For smooth arrangement, the Mother hoped that the Father could inform her earlier of the access date and time. 68. The Mother did not prefer the Father’s staying access with the Children so frequently. She observed that the Children appeared tired and inattentive in their studies after staying access. She attributed it to the tight schedule during the staying access. She considered that it was not desirable for the Children to travel for an hour (to the paternal grandparents’ home) after their night class and had late dinner and bedtime. She revealed that the Children sometimes showed their reluctance to have the access but in order to save her from a difficult position, the Children acceded to the access. 69. In response to the Father’s request to reschedule the Children’s class time so that he could pick up the Children up at 6:00 p.m. as ordered, the Mother stated that no other alternative arrangement of the classes could be made in the foreseeable future. She would not sacrifice the Children’s wish and needs to develop their interests and cancel their classes just to accommodate the Father’s own schedule. Nevertheless, the Mother welcomed the Father’s access to the Children at any time on Saturdays during the staying access week, to escort or accompany them to attend classes and stay overnight with them. Overseas Trip 70. The Mother did not consider it to be appropriate for the Father to have overseas trip with the Children at the present stage. She was worried about the Father’s childcare ability as he had never taken care of the Children single-handedly. Nonetheless, She considered that the arrangement would be feasible or appropriate when the Father could demonstrate satisfactory childcare ability or when the Children were mature enough to look after themselves then this arrangement would be feasible. In such case the Mother expects the Father to discuss and obtain consent from the Children before making any arrangement. Circumstances of the Children (i) Present Condition of Children 71. The daughter of nine year old is a clever, cheerful and approachable girl. Her attire is proper, clean and tidy. She is attending Primary 4 at the CP School in KT. 72. She achieved excellent academic performance and had very good conduct. Her class teacher commented her to be a smart and demure student with strong comprehension and outstanding school performance. She was granted a merit and obtained a prize in Chinese subject. 73. The son is now 7 years old. He is cheerful, sociable and energetic. His attire is proper, clean and tidy. He is a Primary 2 student of the same school. He has excellent academic performance and very good conduct. He also obtained favourable comments from his class teacher on his talent, bright character, quick thinking and strong comprehension. 74. n school days, the Children wake up at about 6:15 a.m. After breakfast, they go to school by school bus. After class, the daughter joins musical and dance class in school on Monday, Thursday and Friday while the son plays percussion together with his sister on Monday. The Children return home by school bus at about 4:00 p.m. and do their homework after afternoon tea. After dinner, they do revision under the Mother’s supervision. They go to bed at about 9:30 p.m. 75. On Saturdays, the Children attend an English oral class in the morning. After lunch, the daughter lea rns piano at home and subsequently attends her ballet class while the son plays at home and then attends class of gymnastics. They sometimes have outdoor activities, like riding bicycle, with the Mother. They stay overnight at the paternal grandparents’ home on alternate week. On Sunday morning, they attend church with the Mother and join gatherings with the church-mates. 76. During the social enquiry, the two Children were observed to have close and spontaneous interaction with both Parents. During home visit, the Mother and the Children chatted with each other reciprocally and spontaneously, including topics relating to the Father. The Children were eager to speak with the Mother while the latter managed to speak in the Children’s language. They played games together and laughed at jokes most of the time. The Mother appeared to be sensitive to the Children’s needs while the Children managed to follow her instructions and listened to her guidance. 77. The Father visited the Children with the Social Welfare Officer in August 2004. The Father took initiative to chat with the Children on some interesting and inspiring topics. The Children sat close to the Father and chatted with him interactively and spontaneously. The Father later initiated to play structured games with the Children. All parties enjoyed themselves in the play. Though the Father inclined to focus on the daughter, he made an effort to engage the son throughout the process. Afterwards, the Father arranged an outing for the Children. Both Children enjoyed themselves very much. 78. On 21st January 2006, the Father came to pick up the Children with the Social Welfare Officer at TPS Stadium at about 7:50 p.m. and the Father drove all of them to the parental grandparents’ home in TKO. During the trip, the Father played classical music CD and introduced the composer and musical composition while the Children listened to him attentively. Both Children actively interacted with the Father by asking him riddles and telling jokes. At the paternal grandparents’ home, the Children looked very relaxed. The paternal grandparents’ flat measured 40 square meters consisted of one bedroom. It was well-lit and adequately furnished with comfortable living environment. There were many photos of the Children hanging on the wall. As observed, the paternal grandparents were kind and tender to the Children while the Father looked pleased and contented with the paternal grandparents and the Children. (ii) Attitude of the Children 79. During the present enquiry, the Children were interviewed individually at their home on 21st January 2006. However, both Children showed avoidance in mentioning about the Parents’ matters and just shared their views in piecemeal. The Social Welfare Officer also felt that the Children were evasive and they used different methods to divert her attention. It is observed that the parental issue had brought much tortures to the Children and also to the Parents. The Social Welfare Officer did not want to indulge in this issue to upset the Children, so there was no chance to ask for their view on the joint custody matter. 80. While being invited to have a chat with Social Welfare Officer in her bedroom, the daughter vaguely displayed her anxiety. Upon probing, the daughter shared her unhappiness over the Parents’ relationship problem. She showed that the Parents quarrelled a lot and had conflicts frequently in the past but disregarded each other at present. She wished that they could resume dialogues but believed that the “adults” would not listen to her. She indicated that she had accustomed to the present arrangement, i.e. living with the Mother and seeing the Father regularly. 81. The Social Welfare Officer also chatted with the son casually during tea. He frankly shared that he felt unhappy towards the Parents’ problem. He did not want them to divorce but felt helpless to make any change. He indi cated that he did not want to move away from the present home for he had many friends around. On the parent-child relationship, he stated that he loved both Parents. He also found that the Mother loved him and his elder sister very much but the Father did not treat him as well as the Mother did. On access, he expressed that he did not like to have access with the Father, but he refused to state the reason and just engaged the Social Welfare Officer on other topics. He described his Father to be a bad guy. 82. It was apparent to the Social Welfare Officer that the Children maintained very good relationship with both Parents. Comparatively speaking, the Children have a closer bond with the Mother than they do with the Father. Both Children indicated their fondness over the Mother and their preference to live with her in the future. The Social Welfare Officer viewed that this phenomenon is natural as the Mother has assumed a more active role in taking care of the Children since their birth and was familiar with the needs and daily routines of the Children. Although the Children also felt pleased with the Father, they just made occasional telephone contacts with him. Social Welfare Officer’s Opinion and Recommendation 83. “ Good co-parents” is pre-requisite for a successful joint custody which is in the best interest of the children. 84. The Social Welfare Officer opined that to be good co-parents, the divorced parents should not only be capable of settling their disagreements, but also able to regard litigation as the final option. A great deal of mutuality between the divorced parents, including cooperation and collaboration, communication, commitment and trust, is also required. Otherwise, custodial arrangement will only create more tension or conflicts between the divorced parents and ultimately cannot make the Children benefited. 85. In this case, both Parents are well-educated with common religious belief. They love the Children very much and maintain close parent-child relationship. Nonetheless, the materials submitted before this Court showed that the relationship between the Parents was far from satisfactory, albeit not so conflicting. Their mutual communication is little and their reports of pleasant encounters with each other in the recent years are very few. 86. Not only did the Mother display her strong distrust against the Father and query his credibility, she also felt distressful to encounter him, and thus maintained her avoidance attitudes towards him. 87. The Father showed his readiness to initiate contacts with the Mother but also felt difficult to break her “brick-wall”. The Social Welfare Officer perceived that the trust of the Father is only over the Mother’s childcare condition but not her cooperativeness, therefore the Father was so worried about the future access condition as well as the degree of his participation in Children’s matters if no joint custody order is granted. Joint Custody 88. Without a good base of mutual communication and trust, the Parents do not have a regular pattern to have discussion or collaborations on the childcare matters. With the disagreements over access arrangement and the other party’s parenting style, the Parents do not and sometimes cannot effectively channel their views to each other and come to solutions. Instead, the Mother tended to avoid the Father, and the Father sometimes resorted to outer intervention, e.g. court orders, to procure the Mother’s “cooperation”, but it ended up with the Mother’s adverse feelings and further worsened their base of cooperation. 89. In fact, the Parents’ over a year dispute on child custody and ancillary relief matters not only bought tortures to both parties but also inevitably hampered their trust and relationship. Although the Father envisaged that the Mother and he can be collaborative, their difficulty in reaching a consensus or compromise over the said matters has somehow reflected their limited room for working together. The Social Welfare Officer was very much in doubt if the Parents can sensibly co-operate with each other or their communications can be peaceful and friendly. 90. With no genuine cooperation and collaboration between the Parents, any attempt for joint custody is likely to be frustrated. Moreover, in view of the absence of the Parents’ mutual trust and the Mother’s strong rejection to share custody with the Father due to personal and practical reasons, the Social Welfare Officer opined that as joint custodial arrangement can unlikely facilitate the parents’ collaboration or enhance their cooperation, joint custody is not considered a feasible custodial arrangement that can benefit the Children. 91. The Social Welfare Officer commented that the Children are talented and smart. Their healthy physical look, cheerful and friendly characters, good school performance and conduct have reflected the good quality of the Mother’s childcare and upbringing of the Children. She has demonstrated her ability to meet the physical, emotional and educational needs of the Children in all these years. It is reckoned that the Mother has played an active role in childcare and has put a lot of effort in cultivating the Children’s social behaviour as well as supervising them in their daily home-work. It is noticed that the Mother has paid much attention in their social development. She purposely arranged all kinds of activities for the Children to participate. Even without the Father’s advice, the Mother is capable of making decisions for the Children’s welfare on important issues like education and medical treatment. 92. On the other hand, the Social Welfare Officer has no doubt on the Father’s unfailing love over the Children and his sincerity of taking up the caring responsibility. Despite his limited time available for the Children, the Father maintained good relationship with them with his tender love and efforts. The Father has also demonstrated his vision and ability to develop the Children’s intelligence and self-confidence. It is however unlikely for the Father to spare extra time with the Children in the near future, bearing in mind his strong work commitment. 93. On the question of access, the Social Welfare Officer pointed out that the Children enjoyed good time with the Father. Access should therefore be encouraged to achieve better father-child ties. Although the Parents have shown some dissatisfactions and disagreements over the present access condition, there seems no other better alternative arrangement at present. 94. The Social Welfare Officer therefore recommended that :-
95. The Social Welfare Officer is the only independent witness. The court gives due consideration of the reports prepared by her. 96. As “the eyes and ears of the Court” , her evidence, given in her reports and her testimony, is of particular importance and value. The Court acknowledges that she has duly and properly discharged her duty as the relevant social work professional in her investigation and in the hearing as an independent witness. The observations and recommendations made in this case were well founded and supported. The Authorities cited by the Father 97. The Father has cited 3 English cases with shared residence order being granted in the first 2 following cases. The 3 children in D v D (Shared Residence Order) [2001] 1 FLR 495 were in effect living with both of their parents and spending substantial amount of their time with each of their parents, then a residence order covering both parents may be an entirely appropriate order to make under such circumstances. 98. Although in Re F (Shared Residence Order) [2003] 2 FLR 397, the Court of Appeal held that a shared residence order does not necessarily involve regular alternation between the 2 parents. “In the interest of the Children” is also pre-requisite for a shared residence order to be made. 99. In Caffell v Caffell [1984] FLR 169 100. The lower court had wrongly made an order by giving care and control to the Mother but granting custody only to the Father. The Court of Appeal held that as the Mother had care and control of their Children, it is unnecessarily hard and unfair to deprive her of their custody, the appropriate order was joint custody with care and control to the Mother. The Court of Appeal also reckoned that a joint custody might be equally appropriate to recognise the responsibility and concern of the parent (who did not have day to day control of the child) and might ease any bitterness between the parties. 101. The facts of the 3 English cases and their respective circumstances in which the residence / custody order was granted by the Court in each individual case, were very different to the present one. This Court can but make the usual orders for custody and access, or joint custody, care and control. 102. Apart from acknowledging that “the right decision is dependent upon the individual facts of each case where the judge exercises his discretion and decides what is best for the Children in that particular case and welfare of Children was indeed the paramount consideration”, these 3 cases d id not offer much assistance. General Principles relating to custody 103. In relation to the custody or upbringing of a minor, the Court is guided by the general principles set out under s. 3 of the Guardianship of Minors Ordinance, Cap. 13 that the welfare of the minor shall be regarded as the first and paramount consideration. In having such regard the court shall give due consideration to the wishes of the minor and the report of a Social Welfare Officer available to the court at the hearing. 104. The court shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing … is superior to that of the mother, or the claim of the mother is superior to that of the father. To decide on the issue of custody, there are various factors to be considered and looked into, including the wishes of the parents and other relevant factors arising in this case. Additional Evidence considered by the Court (i) Staying away from home 105. As the Father Respondent stated that both the Petitioner and he were devoted Christians. There was no major difference on key issues, nor was there any significant conflict between them. They only restricted their communication to children matters. 106. At the initial stage when the daughter was only a baby the Respondent alleged that he was too busy and too tired to drive home which was in Tai Po. He had to rent a service apartment near his work place in W so as to save the danger of having to drive home in exhaustion after work. Subsequently he thought it was appropriate for him to move out of the matrimonial home altogether and to live separately from the Petitioner and the Children in November 2000. As to where the Respondent lived during all these years and before the divorce petition was filed, he offered no answer nor explanation. 107. The travelling time between TP and W may vary depending on the traffic condition at the time, but can hardly be considered to cause exhaustion. There must be other means of transport available to the Respondent. At the time the Respondent was fully aware that the daughter was suffering from asthma. She was just 4 year old and the son was only two. There was no complaint of the Respondent being molested disturbed or interfered by the Petitioner in the past. 108. If what the Respondent said was true , which was that there was no significant conflict, no major difference, nor any high level of animosity between the parties, it was absolutely inexplicable as to why he chose and/or saw fit to leave his family behind, and without leaving the Petitioner any means and of his contact even in case of emergency? There was never any justifiable nor acceptable ground for the Respondent’s refusal to let the Petitioner and his own parents (whom he claimed to be close) to know of his residence address and home phone number despite many requests made by the Petitioner? The questions were opened for his explanation but still remained unanswered. 109. The practice of not returning home at ni ght until he actually moved out went on for quite some years. It cannot be the case, and never was the Respondent’s case, that he shared the idea of the whole family moving to Hong Kong Island together. No such suggestion was ever mentioned in his testimony or his Affidavit any way. The fact that the Respondent put to the Petitioner in his cross-examination that the couple had visited some properties on Hong Kong Island with a view to moving the whole family to Hong Kong together, does not take the Respondent’s case anywhere or any further. Welfare of the Children was never the Respondent’s paramount concern before the divorce was filed. In this respect, the Court finds that the Respondent was not only bizarre and eccentric, but also irresponsible and self-centred. Forsaking the children’s benefit, and even necessity of having surely their own father by their side or coming to their rescue in case of emergency is absolutely inexcusable. The Respondent’s evidence was by no means impressive, which is nevertheless dealt with in this judgment. (ii) Ballet Dress 110. The Respondent claimed that when the daughter was 4 , he bought her a new ballet dress to foster her interest in dance. Such claim was inconsistent with his evidence. 111. From the evidence it is clear that the Respondent was not aware that his daughter ha d already started learning ballet at that time. He apparently did not know that ballet schools do have costume code under which students are allowed to wear only certain type of ballet costume as specified by the school. 112. The fact that the Respondent did not know of the daughter’s attending dancing lessons, or the type of dance she was learning, somehow reflected the degree of his interest in the Children’s activities at the time. The ballet dress hence could not have been given to his daughter to encourage her to take up ballet. It was probably given by his colleague as an unwanted item and in turn the Respondent gave it to the daughter, as he once told the Petitioner. (iii) Residence from W to L 113. The Respondent left his Children with the Petitioner when they were so young so as to “save the travelling time to and from work”. The fact that his residential address remains a secret indicates that he is not prepared to spend any time with the Children at his residence. 114. It seems that on 17th April 2004 , when he rented the small flat of 380 2 ft, the importance of his Children having regular time with him at his home did not cross his mind. His first Form 4 filed on 21st April 2004 also indicated he did not wish to apply or to be heard on custody and access claim although a fresh Form 4 indicating otherwise was later filed on 11th May 2004. The Petitioner’s evidence that when urging him not to leave the family for the Children’s sake, the Respondent told her that the Children were too young to recognise him as he had spent little time with them is likely to be true. 115. There is no evidence that his work load has been lightened currently, but he chose to move away far from his work place from W to L, so he said, as to provide the Children with a more spacious home at a lower rent. Apparently, his decision to move from a small flat of 380 2 ft to a larger one of about 900 2 ft in June 2005 was to prepare for this present application of custody. It is understandable that the Petitioner was sceptical about the Respondent’s motive in this application. (iv) Help from marriage counsellor in 1998 and in 2002 / 2003 116. As early as in 1998, the Petitioner visited a preacher of the church for marriage counselling, but she could not manage to secure the Respondent’s response and attendance. About 2003 and before filing of the divorce petition, the Petitioner sought help from a marriage counsellor who then wrote to the Respondent inviting him for an appointment to discuss their problem but the Respondent did not respond and refused to visit this marriage counsellor. 117. On the other hand, the Respondent said that he tried to tolerate and hoped that the marriage could be kept for the Children’s sake and that he reluctantly accepted the Petitioner’s decision to divorce. There is however no evidence that the Respondent had taken positive steps to mend or improve the relationship. As to how he hoped that the marriage could be kept, it was totally unknown. 118. The Petitioner urged him to stay and told him specifically that the Children needed a father but the Respondent responded by saying that the Children were too young to recognise their Father. What then has he done “for the sake of his Children” to keep this marriage ? The bare assertion of “for the Children’s sake” and reluctant acceptance of divorce seem to be superficial. (v) Photo Album (Exhibit R – 1) 119. It is apparent that the Petitioner challenged the Respondent’s involvement and contact with the Children as being close. This Exhibit R – 1 was provided by the Respondent with a view to show ing his involvement in the Children’s upbringing and participation in their activities. 120. The Respondent should know that mere production of the Children’s photographs is inadequate to prove his involvement. There are quite a few photographs of the Children taken without the Respondent in them and one could not deduce from these photographs that the Respondent was present. It may be observed on those occasions where the Respondent claimed he was present, that photo of which could be taken by others for the Respondent and the Children, yet there was no sign of the Respondent. 121. On the other hand, the Petitioner is able to give detailed account of the occasions as to why or where these photographs were taken . The Court entertains no doubt on her recollection of the occasions where these photographs were taken. 122. Conversely, the Respondent’s allegation (with certain photographs provided) of his participation and presence on those occasions where the photographs were taken did not seem to accurately reflect the truth. (vi) Is Petitioner still a friend of Respondent ? 123. The Respondent emphasised to this court that despite the separation, they still went out together as a family and he claimed that he is treating the Petitioner as a friend, whom he said he has no intention of resisting to see. Why would he then object her presence during his access at meal time with the Children ? 124. If their communication ha d been improved, a simple request for the Petitioner to just leave the Children with him could easily have been made, and her presence at their meal time could simply have been requested. Why did he choose to issue legal warning letter to the Petitioner to reflect his view instead? It is obvious that such move has aggravated the already tense relationship between them. The Petitioner explained to the Social Welfare Officer that it was under the persistent requests of the Children that she has occasionally accompanied them to have meal with the Father. She felt very angry upon receiving such warning letter from the Respondent’s lawyer. (vii) Suspicious access arrangement of the Petitioner 125. The Respondent considered that picking the Children up only after 7:45 p.m. was too hurried for him and he wondered why the Petitioner did not arrange alternative classes for the Children so that he could reach the Children earlier and have more time with them during the access. There is no evidence that the Respondent has raised this matter with the Petitioner. He suspected the Petitioner to have deliberately arranged classes at such time as so to hinder his right of access to the Children. He has never called up the school to enquire about the availability of alternative classes. Having taken no steps to make enquiries, it is groundless for the Respondent to complain by just asking for an early access on Saturday unless he was thinking of asking his daughter to cancel the ballet class to accommodate him. 126. The access arrangement by the Parents do not require much or in depth communication but the inclination to avoid communication with each other still persists. How can the Respondent say that their communication has improved? (viii) Los s of Temper 127. The discussion over the issue of the Children’s changing school in 2005 has evoked negative remarks and ended up embarrassingly in the public, with the Respondent’s shouting and losing temper, although the Respondent has reluctantly accepted the Petitioner’s decision at the end. The Mother revealed that the Father flew into a temper and shouted in the public in the presence of the daughter, as and when he felt that his right of access was affected even with justification. (ix) Lumpness on daughter’s ear/medical treatment 128. Both parents have given different account of the incident and ultimate cause of the daughter’s recovery from this ailment. 129. The Respondent has portrayed co-operation between the Parents and his connection with the medical practitioners resulting the daughter’s wound being healed. Where as the Petitioner presented that the wound was effectively cured under her care without intervention from the Respondent. 130. Nevertheless the re is no doubt that some of the Respondent’s schoolmates are doctors who offered the parties medical opinions and assisted them in having better health options for the Children. Court’s Observations and Findings 131. Evidence of the case and the demeanour of witnesses were duly and carefully observed. Counsel’s submissions on the facts and laws were duly heard and considered. Evidence of each witness and the Social Welfare Officer’s reports were duly considered. It is found with regret that the Petitioner’s feeling of mistrust on the Respondent is not ill-founded. 132. Tendency of the Respondent’s speech louder than his action is unfortunately reflected in some aspects of this case e.g. childcare plans in his sole custody claim, early access time on Saturday, his wish to mend the marital relationship. 133. Both parties have given very different account of the incidents. Their evidence contradicted each other. Credibility and conduct of the parties have become important issues in this hearing. It is necessary for the Court to decide where the truth lies. The Court’s comment on the witness is not made with a view to creating acute animosity between the parties. The Court does not apportion blame on the parties. The parties have much discontent and bitterness against each other in the marriage. There were so much conflicts even on trivial and petty matters. 134. The parties are not willing to collaborate and are avoiding each other. They rather resort ed to legal action to settle their disagreements or to secure “co-operation” even at the expense of elevating the animosity between them. The likelihood of emotional outburst during discussion remains high. They could not effectively channel their views to each other. The prospect of reasonable cooperation is low. The daughter’s perception and observation of her Parents’ relationship were indeed accurate. 135. The Respondent’s attempt to portray and present a picture of communication with understanding and patience in the Children’s interest is unsuccessful. The Court does not share that the communication between the parties or their attitudes towards each other is, in any way improving, or that the Respondent is actually feeling more comfortable to initiate contacts with the Petitioner. Petitioner’s role as a custodial parent 136. The Respondent admitted that his living apart from the family caused adverse influence on communication with the Petitioner. The relationship was further deteriorated by the Respondent’s moving to somewhere unknown to the Petitioner and his insistent refusal to let the Petitioner know his address without justification. 137. The Respondent had in fact started to stay out as and when the Petitioner was pregnant with their daughter. She was subsequently left on her own, though with the assistance of a maid to take care of the Children as a working Mother. When the Respondent eventually moved out of the matrimonial home in 2000, the Petitioner was left in a devastating, insecured and helpless state with the 2 very young Children. 138. In the most difficult time of her marriage, she managed to live on without physical, psychological and emotional support and assistance from her Children’s father. She had to cope with all kinds of situations single -handedly including the emergency ones or making decisions alone but ably for his Children’s welfare. 139. In all these years, she has performed and discharged her parental duties satisfactor ily. She nurtured the Children well. She has demonstrated her capability and ability in all aspects of the upbringings of the Children without the assistance of the Father in the past. The Children are coping well with the Parents’ divorce. It is to the Petitioner’s credit that the Children have been able to maintain a good relationship with the Father. 140. It is not accepted that the Petitioner’s insistence on objecting the joint custody has anything to do with her misconception over Children custody or her mixing up the custody matter with the ancillary relief issue. Education issue 141. In so far as education is concerned, not only the Parents’ wishes are significant, the following practical factors are also to be carefully considered :- - financial supports for present and future arrangements; - distribution of man power; - wishes and needs of the Children; - moral and psychological supports; - effect and adjustment of change of environment, education system and curriculum on Children, etc. 142. The issue on change of school was brought up in 2005. Having spoken to the Respondent, the Petitioner made enquiries inter alia about the students in the new school. She also looked into the aforesaid factors and applied them practically. Eventually she reached her decision. The Petitioner had adopted a pragmatic and all round approach in dealing with the Respondent’s recommendation of new school for both Children. 143. The fact that the Respondent ha d spent his career in education at the management level for over 10 years and having his own professional net-work of frontline educators, has to a certain extent enlisted the Parents to be better informed in the Children’s education. 144. The Court entertains no doubt that the Respondent has wider knowledge on the worldwide trends of education. Such knowledge may assist in making better educational decisions. 145. On the other hand, being a secondary teacher for over 17 years and a primary carer of the Children, the Petitioner has been taking quality care of the Children since they were born, supervising closely their home work, attending their psychological and emotional needs, able to spare time to talk with them, listening to their wish and pacifying them on daily basis. The Court accepts in confidence that the Petitioner is in an equally sound if not better position to decide what education is more suitable and practical for the Children. Conclusion 146. This is not a case, where a party simply asserted that he or she cannot, or chooses not to, communicate so as to deny the right of other parent on the matter involving the Children. The causes for the parties not being able to collaborate and communicate sensibly for the welfare of the Children have been explored and founded. 147. The Court does not accept that either party has genuinely taken constructive and positive steps to improve or rebuild the confidence and trust between them. A joint custody order can hardly ease bitterness between the parties or facilitate the Parents to work together, at least not in this case. Any disagreement only invites more conflicts and emotional disturbance, in such case, causing one party to avoid having further contacts with the other. 148. Under such circumstances, it is unlikely that the Children of the family will benefit from the joint custody. 149. Having balanc ed and scrutinized with care all the relevant factors, the Court is satisfied that it is in the welfare of the Children that a sole custody order with care and control be given to the Mother in the way as recommended by the Social Welfare Officer. 150. However, the Children at their tender age are definitely in need of constant care and attention from their parents. The father who loves and cares about his children should reasonably be involved in their upbringings. There is no doubt that the Father in this case loves and cares about his Children. His right to perform his parental responsibility should not be deprived of. 151. At present, the Father has maintained reasonable contact with the Children. There is no evidence that the Mother has pushed the Father away from the Children’s life. He is able to chat with them on their school-life, natural science and the updated headlines, to cultivate their talent and inspire their interest, to visit various museums and parks with them, to bring the Children books to read on interesting subjects, to join their classes of interesting courses (e.g. piano); to drive them to the countryside and beaches to enjoy nature and have fun, and to bring them for birdwatching and excursions etc.. 152. There is no likelihood that the Father is drifted out of the Children’s life altogether. There is no evidence that the Father will lose chances to contact the Children if he can not obtain their custody. 153. The effect of the recommended order by the Social Welfare Officer impose s a duty on the Mother who retains the Children’s custody to consult and inform the Father on matters relating to the Children’s welfare, (e.g. change of school and residence as well as significant health care matters). The Father will not under these circumstances be excluded from being involved in the Children’s upbringing. 154. The existing access order enable s the Father to assume and discharge his parental responsibilities and fulfil his parental role in the upbringings of the Children. It is therefore ordered that :-
Costs 155. There is also an order nisi that the Respondent do pay the Petitioner the costs of this application, such costs to be taxed if not agreed, and that unless any party aggrieved by this order nisi shall apply to this Court to vary the same or for any order otherwise, within 14 days from the date hereof, this order nisi shall become absolute accordingly. 156. The Court acknowledges and appreciates the efforts and every assistance of the Social Welfare Officer in this case.
Ms Marie Tsang of Messrs Marie Tsang, Dustin Chan & Co., for the Petitioner Mr Robin Egerton, instructed by Messrs S.K. Lam, Alfred Chan & Co., for the Respondent |