L v. F

FCMC 8266 of 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8266 OF 2005

  _________________

_________________

Coram :  Deputy District Judge Susana D’Almada Remedios in Chambers (Not open to public)

Dates of Hearing :  10^th to 13^th , 16^th to 18^th October 2006 and 3^rd   November 2006

Date of Handing Down of Judgment :  1^st December 2006

_________________ 

J U D G M E N T

_________________

1.This is a contested application by the mother and father respectively for custody of the two children of the family. 

2.By a summons dated the 8 October 2005, the Petitioner mother applied for custody of the two children of the family with defined access to the Respondent father.  The father opposes her application and applies for custody of the two children to be granted to him.  The mother’s position in respect of defined access has altered since the filing of her application.  I shall deal with that later in my judgment.

Background

3.The parties were married in Hong Kong on the 14th of November 1992.  The parties have two children, a daughter born on 18th May 1997 and a son born on 19th June 2001.  On the 30th of July 2005 the wife petitioned for divorce on the ground of the husbands unreasonable behaviour.

4.During the marriage the parties lived at a Housing Society self-owned flat at Heng Fa Chuen.  In December 2005, after being evicted from their flat for non-payment of the mortgage, the mother and two children moved temporarily to live in her mother’s house (maternal grandmother) in Cheerful Garden, Siu Sai Wan.  The father moved to live with his mother (paternal grandmother) at Harmony Garden, Siu Sai Wan.  In or about February 2006 the mother and the two children moved into a rented accommodation at Factory Street, Shau Ki Wan.  The mother is waiting to be allocated a public housing unit so that she can move there to live with the two children. 

The mother

5.The mother now aged 40 was born in Hong Kong.  She had completed form seven in Hong Kong and has a Diploma in Business Studies.  She has worked as a conveyancing clerk in various law firms and attained a Higher Diploma in Legal Studies.  From 1997 onwards, she ceased working and took up the role as a full time housewife and mother after the birth of her first child, the daughter.

The father 

6.The father now aged 43 was born in Hong Kong.  After completing form six he worked as legal executive in various law firms and as an agent in property service companies respectively.  He obtained a Diploma of Law & Administration in 1986, a Bachelor of Laws in 1995 and a Professional Diploma in Real Estate Administration in 2002.  He then worked as a manager in various property management companies and also managed his own business.  Since April 2004 the father had worked as a general manager of a property management company in China which is joint-venture by a local investor.  The China company has a base office in Hong Kong and a China office in Shenzhen. 

The children

7.The daughter and son are now aged 9 years old and 5 years old respectively.  They are living with their mother.  Their abode is about 35 square meters with one bedroom, sitting room, kitchen and toilet.  The children and the mother share a double size bunk bed in the bedroom.  The home is essentially furnished.  The daughter is studying primary 4 in the afternoon session.  She has some tutorials arranged in the mornings before school.  The son is now studying in K3 in a kindergarten.  The mother arranges various extra-curricular activities for the children at the weekend.  The children presently spend Saturday evening and Sunday with the father at the paternal grandmother’s house where the father is residing.

Evidence at trial

8.The parties not having legal representation appeared before me in person.  They filed detailed affirmations in support of their applications and in opposition of the other party being granted custody.  The parties both gave evidence.  They also called witnesses in support of their case. 

9.The parties cross-examined each other and their witnesses searchingly.  There were numerous allegations and complaints made against each other.  There were a range of incidents referred to which the parties sought respectively to rely upon to show the inability of the other in caring for the children.  In my judgment I shall not attempt to reiterate the copious numbers of them but refer to some.

10.I have carefully considered all the evidence and the submissions made before me.

The mother’s case 

11.The mother states that she is a full-time mother looking after two children.  She has been their primary carer since their birth.  She has been the one to attend to their homework and their everyday day to day needs.  Since the separation from the father the mother has been the only and main carer of the children save at weekends when they spend time with the father.  At present she together with the children are living on Comprehensive Social Security Assistance.

12.In view of her limited income she struggles with the fact that she has little disposable income.  The father being much better off and having made no financial contribution to her has made her life more difficult with the children.  She complains that while she is compelled to be frugal with the children’s allowance, transport and toys, the father is liberal to them in all these respects.  This she feels is a clear and unhealthy financial in-balance on their provision for the children.  The children now appear to realize that the father has more means than the mother and readily resort to him when their requests are refused by the mother or cannot be fulfilled by her.  As a result of this in-balance this has caused her much anxiety.  She is at odds to explain the difference to the children and at times feels the children favour the father because of his openhandedness.  She hopes that the father will not be over accommodating to their requests and shower them with too much so as to make the difference between her provision to them and him to be so unbalanced.

13.It is her case that as she has been the primary carer of the children since their birth and the children are well cared for under her.  Therefore they should continue to be under her care.  She seeks support from the observations made by Mr. Kwan, the social welfare officer that she should be granted sole custody of the children of the family.

14.The mother does not agree to joint custody of the children because she finds it hard for her to discuss with the father and there is little communication between them.  What communication she does have is through the daughter and this she does not find appropriate.

The father’s case

15.The father is eager to have custody of the children as he is worried that the mother is unable to render adequate care and close supervision to their children.  Although he is working he will have the assistance of his mother and further also employ a domestic helper to care for the children. 

16.In the alternative, if the father is not successful in his application for sole custody he asks for joint custody of the children so that he can be involved in the decision in consultation with the mother on the children’s matters.

17.He states that he was very involved in the children’s lives and day to day care when the parties were residing together and still is.  Although he was a working father he would come home to render assistance to his children and take the children to school in the mornings.  He had and has interest in their education and attended parent teacher-day’s.  He was also the one involved in soothing down any relationship problems the mother had with the teachers at the kindergarten.  It is his case that the kindergarten refused the son’s entry to the kindergarten after the daughter had left as they did not wish to deal with the mother as she was a troublesome woman.  On this basis he had to pull strings and guarantee the school that the mother would not cause any trouble to the school or teachers.  After giving them such a guarantee the son was admitted to the kindergarten. 

18.He opposes to the mother being granted custody.  His main reasons are that the petitioner is a person of bad temper.  She is easy to lose control of herself and do something damaging to others.  It is his case that the mother has lost her temper and scolded teachers at the kindergarten fiercely.  She also damaged school property at the kindergarten by tearing off the record of attendance in front of the teachers, their son and other children and parents. 

19.He alleges that the mother is an abuser of the children.  She had once abused the younger child when he was in nursery two (N2) such that he received serious bruises on his body including his hands face and legs.

20.The mother leaves the children especially the older child alone at home making the children feel frightened.

21.The mother was and still is very lazy.  She would only wake up at about 11.30am.  She paid no attention and concern to the children.  On the other hand, he, the father, was the one who prepared the daughter for school when she was studying kindergarten before he went off to the office in Hong Kong. When the daughter commenced primary school in the afternoon the mother did not prepare breakfast for her in the morning with the excuse that if she ate breakfast she would not have lunch before going to school.

22.The mother does not know how to maintain relationships with others including her own parents, brother and sisters.  She always quarrels with others, especially with the mother.  Her relationship with friends only lasted for a short time because of her character and temper.

23.The mother paid no attention to her own hygiene.  She only occasionally takes a bath and would only wash her hair once a week.  She encourages the children to follow her living pattern which is detrimental to the health of the children.  Her character has adversely affected the children as the mother speaks foul language at home when she loses her temper.  The two children having heard this language are familiar with it and thus use it whenever they feel unhappy. 

24.Further he complains that since the mother has been living with the children he is left in the dark about the children’s education.  More particularly the son is due to go to primary school next year and the mother has not consulted him on any applications to schools.  He wishes to be consulted and involved.  He states the mother is too concerned in arranging extra-curricular activities for the children filling their day and leaving no time for play and rest. 

25.The father considers the mother not to be a fit and proper person to take care of the children.

The mother’s reply to the father’s allegations

26.The mother denies ever having lost control at the kindergarten nor scolding the teachers fiercely.  She had once complained that two teachers were lacking efficiency and the like.  She stated that the teacher in charge was remarkably pompous and oppressive and tried to discourage her from raising complaints saying they cannot reach goals higher than her. 

27.As to the tearing of the attendance record.  The teachers had rejected her request for a photocopy of the late attendance record containing the father signatures despite telling her that they would be destroyed after the school term ended that day.  The mother admitted that she tore the records but only did so on the clear understanding that it was no longer wanted and that they would be discarded.

28.The mother denies abusing the son when he was in N2.  She voluntarily disclosed and described that she chastised both children with a ruler on their hand only after repetitive advised instruction did not work as the father seldom involved himself with their discipline.  She did not resort to corporal punishment unless compelled by circumstances.  She never inflicted any severe bodily harm on them even though she was and is their sole carer ‘around-the-clock’.  

29.The mother accuses the father of hitting the children at home.  She also states that the son told her that the father had hit him whilst at the paternal grandmother's house. 

30.She said that the father made it difficult for her and the children.  On the days when the mother was to take the son to school the father would take the daughter out for breakfast.  As the son was eager to join them for breakfast he became unwilling to attend school.  Hence the son was late to school.  As a result the mother had to ask the teacher to remind the son of the consequences for being late to school and to reprimand him.

31.The mother complained that the father constantly kept the children up late at night and thus they found it difficult to wake up for school the following morning.  Even after they were living apart from each other, the father would ask the children to sleep over with him on Sunday’s.  He told the children they could choose to attend or be absent from school.  The son was under the misconception that he could be absent from school whenever he wanted.  As they slept very late at the paternal grandmother's house the son refused to get up for school and just stayed at the paternal grand-mother’s house playing on several Monday’s.

32.The mother denies habitually leaving the children at home alone making them frightened.  She admits on one occasion that as the son refused to get dressed and go out with her and the daughter and after much delay, requests and warnings they left him there.  She returned very soon after that and found the son perfectly relaxed on the sofa.  She says the daughter is comfortable staying home for a short time whilst the mother takes the son to school and then quickly goes to the supermarket to do the weekly shopping.  The daughter in any event keeps in contact with her by telephone. 

33.The mother says that the father is irresponsible as he did not give the daughter sufficient time to do her homework in the evening.  As a result the daughter had to finish it the next morning.  She accuses the father of neglecting their homework and encouraging them to watch TV until late hours and playing with them roughly and excitedly at unsuitable times during the night which was known to upset their sleep.  The mother complained that despite her efforts to assist the children in keeping to a schedule to do their homework and sleep early she could not overcome the father's deliberate obstruction to defeat her efforts.

34.As regards her hygiene the mother explains the she has itchy skin conditions in dry weather and the son has eczema however she bathed regularly and so did the children.

Witnesses 

35.The mother called her sisters Madam LLY and LY.  Madam LY gave evidence that she was retired and was able to render assistance to her at anytime in case the mother was not feeling well or had something important to do.   Madam LLY stated she employed a domestic helper and if required the helper will be able to assist the mother should the need arise.  Both sisters observed the mother with the children.  They said she was a caring mother who participated a great deal in the children’s lives.  Two past primary school teachers of the daughter were called.  They stated that the daughter was a polite girl with good above average academic performance.

36.The father called two witnesses, his sister Madam F and the headmistress of the children’s kindergarten, Madam C. 

37.The father’s sister stated in her affirmation that the mother does not care about her personal hygiene and that of the children.  The children's hair is usually oily and dirty.  The children are unwilling to wash their hair.  The father forces them to wash their hair.  The mother also seldom washes the clothes of the two children.  The fingernails and toenails of the two children are never cleaned and trimmed.  The children do not have a habit of brushing their teeth.  However when giving evidence in court she accepted that the mother had since the separation of the parties changed her care to the children and there was much improvement in relation to the matters referred to above.  She believed that these were conscious changes made by the mother as a result of these proceedings. 

38.She also made reference to the mother’s poor punctuality and interpersonal relationships.  As a result of these factors the mother should not care for the children as they would develop to be a person like the mother.

39.The headmistress of the kindergarten related to the court the incident of the mother tearing the records.  On that day which was the last day of the year the mother had asked for a copy of the records.  The mother was told that they were internal documents and they could not let her have a photocopy.  She then became very emotional and grabbed the records and tore it up.  She admitted that prior to this she had told the mother that as it was the end of the school term the records would be destroyed.  She stated that although both children had attended the kindergarten the mother was distance with the teachers.  She observed that the mother now took the son to school.  However at times she would not take him right up to the school gates but would observe him walking by himself from a short distance.  In relation to the acceptance of the son into the kindergarten.  She explained that originally the son was refused a place into the kindergarten as the places were full but subsequently there was a vacancy.  She admitted that the father had written a letter to the kindergarten assuring them that there would be no further trouble caused by the mother.  The trouble referred to was the tearing of the attendance record.  On the whole the headmistress made no adverse comments on the mother or the children.  She described both students as polite well-behaved and good students.

40.The social welfare officer Mr. Kwan compiled two reports.  The first report was dated the 8^th of January 2006 and the further social investigation report was dated the 21^st of September 2006.  The recommendations contained in both reports are that the mother should be granted custody of the two children and the father should be given defined weekday access during the school term and reasonable access on Saturday and Sunday and the long holidays.  Such weekend access to include staying access but on the proviso that the access to the children should not affect the children's extra curricular activities.  Mr. Kwan gave evidence and was cross-examined by the parties.

The father’s challenge to the Social Welfare Reports 

41.The father challenged the professionalism of the social welfare officer although Mr. Kwan had graduated from Hong Kong University in 1977 and had been a social welfare officer of 29 years preparing social welfare reports for the Family Court since 1986. 

42.The father challenged the contents of the reports for not being detailed enough and for not including many matters which the father had informed the social welfare officer about.  He considered the reports to be superficial. 

43.One of the main deficiencies was relating to the incident where the mother had torn up the kindergarten records.  This he considered as very important as it was a very clear demonstration of the mother’s temperament and character.  The father criticized Mr. Kwan for not investigating the case properly, as he did not ask the headmistress of the kindergarten about the incident but had only asked the class teacher who was at that time new to the kindergarten and knew nothing about it. 

44.Mr. Kwan admitted that the father told him about the incident but did not realise that the teacher was new to the school.  He stated that his main concern was about the children’s life and therefore most importantly he had asked if the children's life in school was affected.  He was told by the staff at the kindergarten that the children adjusted well in school.

45.Before the compilation of the further social investigation report and knowing of the father’s complaint in regard to his investigation of the torn record incident Mr. Kwan did make enquiries from the headmistress Madam. C about this incident.  Although he did not describe the whole incident as related to him by the headmistress in the report, he wrote at paragraph 22 that the mother did not relate well with the school staff and was observed not to be co-operative.  He had however investigated whether any similar incidents had happened and they had not.  The staff of the school further related to him that the mother’s relationship with them had improved.

46.Another matter was the non-investigation of the relationship of the mother and her own family.  The father’s case was that the mother’s relationship with her family members was very poor.  Mr. Kwan did not agree with the father’s allegation.  He explained that in all relationships they can be times which are not always harmonious.  He considered that this was not a factor which would affect the children as for the majority of the time they would be in the care of their mother and it would only be on the rare occasion that the mother's family would assist in looking after children.

47.Under cross-examination by the father Mr. Kwan agreed with his suggestion that the mother was at times emotional and temperamental.  As a result the father also questioned why the social welfare officer would think it suitable to give custody to the mother when she was emotional or temperamental whilst clearly he (the father) did not have an emotional or temperamental character.  Mr. Kwan was of the view that the mother did not have any emotional trials now.  Mr. Kwan went on to day that since December 2005 the mother was assisted by a caseworker at the Chai Wan Integrated Family Services Centre of the Social Welfare Department who was capable of giving her proper advice on matters in respect of her temperament and emotion.  Further the social worker was there to render emotional support, provide child-care assistance and sharing of effective child discipline methods.  Mr. Kwan made clear that the mother was receiving assistance and not treatment from the social worker who was a professional.

48.Another accusation against the social welfare officer was of him being biased towards the mother.  The father refers to references in the report of the mother being concerned with the schooling of the child and arranging extra curricular activities and never mentioned that the father did the same.  Under cross-examination however Mr. Kwan agreed with the father that the father was concerned about the children’s schooling and had contact with the school and had arranged activities but explained the reason for his emphasis in the report of the mother was because she was the carer of the children.

49.The father also submitted that the basis of the social welfare officer’s recommendation of granting custody of the children to the mother was flawed because he concluded that the mother had more time to look after children as she was a housewife whilst he was a working father.  He challenged the social welfare officer’s recommendation in that, on the whole, he was a more competent parent to look after the children.  Although he was working, he would look to the assistance of his mother, sister and a domestic helper to look after the children.  He found the conclusion unfair and incorrect as just because the mother was a housewife and had more time with the children, he should be excluded from the consideration of being granted custody of the children.

The Social Welfare Officers Observations

50.It was the social welfare officer’s observation and conclusion that the mother be granted custody of the children of the family.  He considered the children’s young age and the need for close parental love and concern.  The mother had demonstrated her capabilities in caring and supervising the children and recommended the status quo remain to enable the continuity of care and support for the children.  He stated further in his oral evidence that he considered that the mother was a more competent person to care for the children than the father and as a full-time housewife looking after children she had a lot of time to care for and arrange activities for the children.

Views of the children

51.The views of the children are that as are expressed in the social welfare report.  The daughter felt sad at the parents marital breakdown.  Despite her young age she showed quite good understanding about the parents marital breakdown.  She has an attachment to both parents thus wanted to live with them as both of them were good to her.  Her desire however was to live together with the mother during the school days and to have access including staying access with the father during the weekends and school holidays.  She enjoys the existing arrangement and prefers the status quo to remain unchanged so as to continue to live in the mother’s home.

52.The son is too young to understand the family situation and to express his view towards the custody issue.  He enjoyed the time with both parents and seemed to have an equal attachment to both of them.

The Law

53.Section 3 of the Guardianship of Minors Ordinance cap.13 states that the Court is required to regard the welfare of the minor as the first and paramount consideration.  The matters to be taken into account when considering the welfare of the minor are not specified and are many and varied depending on the circumstances.  A useful checklist is set out in section 1(3) Children Act 1989 (UK).  They are:

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

b)    his physical, emotional and educational needs;

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

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

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

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

54.This checklist is not exhaustive but is useful in assessing a custody issue.

Conclusion

55.As can be seen from the case of the father and mother there are numerous allegations and complaints made against each other.  The trial took nine days and the affirmations particularly the mother’s were lengthy.  They criticized each other’s parenting ability and character in substantial detail. 

56.I shall deal with the more salient criticisms and complaints.  The mother’s relationship with her family members particularly her mother may have been strained but they have since improved and are better.  She goes to her parents house regularly for Sunday dinner.  She is on good terms with her two sisters who gave evidence in court.

57.Although she may be temperamental, she appears to be able to control her temperament with the children.  The tearing of the school records was odd but I accept that it was an out of character one-off emotional out-burst. 

58.I found the mother to be verbose.  She was anxious to tell all details of incidents or events.  She is pedantic.  She left no stone unturned in reply to all the allegations and complaints made by the father.  She was detailed and well prepared in the presentation of her case.  I find there to be no evidence of the mother’s character to be lazy, bad-tempered or offensive. 

59.The mother’s characteristics in themselves are not sufficient for me to deprive the children of their mothers care.  I do not find her character to have adversely affected the children.

60.The complaints about keeping the children clean have improved tremendously this was noted by the paternal aunt in that since the mother separated from the father there has been a great improvement in this area.  The teachers and the social welfare officer all noted that the children and their clothes were clean.

61.The mother has admitted to using some corporal punishment on the children when necessary I am satisfied that the children are not likely to suffer any harm or have suffered any harm. 

62.The mother has and continues to make great efforts in doing her best and to learn about the upbringing of children.  She joins many courses and reads books to help improve herself.  She is conscious on her part in developing the children’s needs and strives to do this well.  If assistance is needed she has the support from her social worker. 

63.The father is more concise.  He too prepared his case well.  He was not emotional.  He attempted to paint a very unpleasant picture of the mother and her care of the children.  His criticisms on the whole were unwarranted.  Although it was his opinion that the mother’s character was offensive or that she was lacking social communication skills, there was no evidence that this was adversely affecting the children. 

64.The father is lenient towards the children.  This may be out of pure soft-heartedness but where this affects the children’s attendance at school, homework, sleep, or relations with the mother it should cease. 

65.The parents are both educated.  I found that the parents both love and care for the well being of the children.  Clearly each of the parents have their own parenting style.  They are at opposites to each other.  The mother appears to be more firm and regimented with the children whilst the father appears to be more lenient and relaxed.

66.The mother has essentially been the primary carer of the children since their birth.  Since February 2006 she has been living with the children alone.  The children are observed to be healthy.  They are doing well in school.  She has been rendering adequate care to the children.  She is very much concerned about their developmental needs.  She arranged the children to attend various extra-curricular activities which involves all aspects of their emotional, educational and physical needs.  She too participates with them together in their activities where possible.  She has enrolled them in some weekend outings together with her.  The father has also participated in caring for the children and does so now at weekends.  He also takes them for extra curricular activities.  Both parents do their outmost in developing their children’s educational, emotional and physical needs.

67.The social welfare report is useful guide to the court in assessing custody.  The court is not bound by its recommendations.  In the circumstances of the present case the social welfare officer Mr. Kwan has observed the parties and the children and arrived at his conclusion.  I reject all the allegations made against him by the father.  I give full weight to the evidence of Mr. Kwan and contents of the social welfare report and the further social welfare report.

68.The mother has demonstrated that she is a capable and devoted parent.  She has provided proper guidance to the children.  I see nothing on the evidence before me that she is an unsuitable or undesirable carer.  The children are young and have her full time care.  They have lived alone with her for the past year. 

69.The father is asking for custody of the children.  He is working.  His job takes him on business trips to China.  If the children were to live with him, as his is working, the paternal grandmother, aunt and or a domestic helper will need to fulfill the role as primary carer. 

70.The Court of Appeal has considered the contest between the mother and father over the custody of young children.  The Court of Appeal settled firmly of the view that the position of a mother in the life of young children cannot be underestimated.  In L v C CACV No.333 of 2003 the Court of Appeal held that its natural mother as opposed to a relative should bring up the child.  Rogers JA stated therein when comparing the role of a mother and a paternal aunt :-

“…..the importance of a natural parent being the primary carer must not be lost sight of.  Coupled with that if the parent proposed to be the primary carer is the mother, this too, is highly significant because of the natural role of the mother in the rearing of very young children.”

71.If the children were to live with the father they would lose their mother as their primary carer and would be replaced by the paternal grandmother.  It is not in the interests of the children that that be so. 

72.The mother being the primary carer and housewife, coupled with the preservation of the status quo favours the children to remain in her care and control.

Sole or Joint Custody

73.The question now is if the mother should be granted sole custody or joint custody. 

74.The father complained that the mother does not consult him or tell him about the son’s future education plans to primary school. He is about to commence primary school in September 2007 and applications should have been made.  He does not know if the mother has made any application to secondary schools and if so what schools she has done so.  He would like the son to attend the same school as his daughter as there is a higher chance of acceptance as the daughter is already attending at the school.  The mother said that she has not consulted him about the son’s secondary schooling and she was not intending to apply to the same school as the daughter.  It is clear that the father was therefore not involved in the choice of school and nor had he been consulted. 

75.In the case of Caffell v Cafell [1984] FLR 169 the parents relations were acrimonious and there were difficulties over access.  The Court of Appeal held that the appropriate order in the circumstances of that case was that joint custody should be granted to the parties with care and control to the mother.  This type of order was appropriate to recognise the responsibility and concern of the parent who did not have the day-to-day control of the child, and might ease the bitterness.

76.The parties relationship in this case cannot be described as acrimonious.  There are no specific difficulties over access save some minor matters as mentioned below.  Access since the separation of the parties has been smooth.  The father has demonstrated his concern and care for the children.  Both parents should take part in important decisions of the children such as their health and education.  The father is anxious to take part in their upbringing.  There was much complaint that the father often traveled to China on business and he did not reply to the mother’s messages until many days later or not at all.  There was complaint by the father that the mother would not answer his phone calls or would pass his calls straight on to his children when he called.  It is for the parties to recognise as regards their children that there should be communication and co-operation between themselves.  No discussion should be made through the children.  They should communicate with each other and reply to each other as soon as is practicable.

77.Happily the mother recognises that the father should take a part in the children’s upbringing.  As the mother recognizes this and as it is imperative that the father be involved in the matters relating to the children I see no reason why a joint custody order should not be made to enable both parents participation. 

78.In considering all the factors and circumstances of the case before me the welfare of the children being the first and paramount consideration, I grant joint custody to the mother and father with care and control to the mother.

Access

79.I now turn to the question of access.  The parties are principally in agreement in respect of access.  Where they have not agreed the court has made the decision.

80.It is agreed between the parties that staying access shall be on alternate Saturdays.  The commencement time of such access is in dispute.  The mother states that on Saturday afternoon the children are involved in extra curricular activities and asks for access to commence after activities.  They commence at 1 p.m. and finish at 6 p.m.  The father says that the activities should not interfere with access.  He asks for early commencement of access on Saturday.  Children’s activities should not be an obstacle to access but it is clear that the children have quite a number of activities which they enjoy.  Both parents agree that if they had the children they would take them to their activities.  Thus as agreed between the parents on Saturday afternoons the children will in any event be attending their activities.  Both parents should as far as possible be involved and share in the children’s day-to-day care.  One of those will be to take the children to their activities.  In those circumstances when it is the father’s week to have staying access with the children I consider that the father should take the children to their activities on Saturday’s.  Hence the father’s access should commence on Saturdays at 12 noon when he has staying access on Saturday’s.

81.It is the intention of the parties that the parent not having care and control will at least be able to see the children every weekend for at least a day or for the night. 

82.The present arrangements for the children are that the father has access every Sunday.  The mother asks for one Sunday access.  It is agreed that the parent granted care and control of the children shall have one Sunday access per month whilst the other parent shall have all the remaining Sundays.  Thus the mother shall have one Sunday access and that access shall commence at 10.00 am on the Sunday following the father’s Saturday staying access. 

83.It is agreed that on every Wednesday the non-custodian parent shall have access after school.  The mother says that the duration should be for one and a half hours whilst the father says the duration shall be for two hours.  The parent having care and control shall be responsible for the children’s homework.  What is in dispute is as to the duration and time this access shall commence.  The mother requests for the access to commence earlier at about 6.30pm so that children can eat early and be home early to do their homework.  The father says that it is difficult for him to have access earlier as he is required to work.  He suggests 7 p.m. as the father will be engaged in work and there is only half an hour difference in time.  I agree that access is to commence at 7 p.m. however the children are to be returned home by 8.30pm. so that they can be bathed, do their homework and be ready for school the following day.

84.The parties have agreed that the father has the first half of the Chinese New Year holidays and the mother be second half.  They have also agreed to alternate Christmas and Easter holidays. 

85.The father requests for every Dragon Boat and mid Autumn Festival.  The mother asks for alternate festivals. 

86.The father asks for the summer holidays to be shared equally by the parties, the mother agrees subject to the father being on holiday leave when the children are staying with him.  The father says he cannot give such a guarantee. 

87.In respect of or other holidays of the children the father asks for those holidays to be mutually agreed whilst the mother asks for them to be shared equally. 

88.Holidays to be shared equally are reasonable.  They are to share the mid Autumn Festival and the Dragon Boat Festival in alternative years.  An example is for the year that the father has Dragon Boat Festival the mother will have Mid Autumn Festival.  For the year the father has mid Autumn Festival the mother shall have Dragon Boat Festival and so on. 

89.It is reasonable that the parties share the summer holidays equally.  I consider it beneficial to the children when they have access with the father that the father will also be on holiday together with them at the same time.  The father as stated will probably only be able to take some holiday which coincides with the children but he cannot guarantee that it will be for half of the children's summer holiday.  The father’s access to the children should be for the duration of time that he is on holiday together with the children.  However in circumstances where the father cannot take the same amount of holiday which coincides with the duration of the children’s holiday, the children should stay with the father for the maximum period of seven days when the father is not on holiday.  An example is if half the school holidays amount to three weeks and the father can only take seven days holiday which coincide with the children’s holiday then the children will spend the seven days with him when he and the children are on holiday together but will only spend one further week with him when he is not on holiday.  That makes a maximum of 2 weeks. 

90.The remaining other holidays are to be shared equally between the parties.

91.I shall hear the parties on costs.

I make the following orders:-

(1) Joint custody of the children of the family be granted to the Petitioner and the Respondent with care and control to the Petitioner.

(2) The Respondent do have access including staying access to the two children of the family as follows:-

(a) Weekday access every Wednesday from 7 p.m. to 8:30 p.m.

(b) Sunday access to the two children from 10.00am to 9.00pm or 9.30pm* when the children stay overnight with the Petitioner mother on Saturday’s.

(c) Staying access to the two children of the family on alternate Saturdays from 12 noon on Saturday to Sunday 9.00 p.m or 9.30pm* or Sunday 10.00am when the Petitioner’s has Sunday access to the children once per month. 

*If the return of the children to the Petitioner is at 9:30 p.m. the children shall have been bathed, otherwise they are to be returned by 9 p.m.

(d) The Respondent do return the children to the Petitioner after he has Saturday staying access to the children on Sunday at 10.00 am once per month when the Petitioner do have Sunday access to the children. 

(e) The Respondent be granted holiday staying access for the first half of the Chinese New Year Holidays and the Petitioner be granted the second half of the Chinese New Year Holiday. 

(f) Christmas and Easter holiday staying access to be shared in alternate years by the parties.  The Respondent do have access to the children for Christmas 2006 and the Petitioner do have access for Easter 2007 and so on. 

(g) Summer holiday staying access be shared equally between the Petitioner and the Respondent subject to the Respondent himself being on holiday for all the children’s access.  If the Respondent is not on holiday together with the children for the duration of the children’s holiday then access be limited to one week after the time that his holiday coincides with the children’s. 

(h) The Petitioner and the Respondent to have alternate Dragon Boat and Mid-Autumn Festival Holidays access annually.  For the year of 2007 the Petitioner do have Dragon Boat Festival and the Respondent do have Mid-Autumn Festival and for 2008 the Respondent do have Dragon Boat Festival and the Petitioner do have Mid-Autumn Festival and so on.

(i) All other school and public holidays be shared equally between the Petitioner and the Respondent.  Such holidays to be mutually agreed if not then the parties shall have alternate holidays. 

(3) The children’s school assignments to be completed during the summer holidays to be the responsibility of the Petitioner and the Respondent in alternate years.  For the year of 2007 it be to the Petitioner and for the year of 2008 to the Respondent and so on.

The Petitioner and the Respondent acting in person