Nkm Nee Skm v. Ngr
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FCMC 14562 / 2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 14562 OF 2007 ---------------------------- BETWEEN
---------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Date of Hearing: 17 September 2008 Date of written final submission: 24 September 2008 Date of Judgment: 26 September 2008 ------------------------ JUDGMENT ------------------------ Introduction 1.This is an application by a respondent father for increased access to his two young sons, E who was born on the 29 December 2004 and is now 3 years and 9 months and F who was born on the 15 February 2007 and is now therefore a little over 18 months old. Background 2.The parties met in England in 1999 and married on the 25 October 2002 in Hong Kong, having relocated here in 2000. It appears that the relationship finally broke down in November/December 2007, and the parties have lived separate and apart from each other since that time. 3.In October 2007 the father issued wardship proceedings, in order, it seems, to contain the situation relating to the children. He believed at the time that the wife intended to take the children permanently out of the jurisdiction without his consent. Infact this was not the case and the wardship proceedings were eventually compromised. 4.Shortly thereafter, the mother issued proceedings for divorce based on the father’s unreasonable behaviour. In the accompanying Statement of Arrangement for Children, she said
5.Access appears to have then taken place frequently and by agreement between the parties, until a series of unfortunate incidences occurred, which I will not go into in this judgment, which led to the mother restricting access and the father making an application to the court. 6.An order for interim interim access was subsequently made on the 26 April 2008 at a directions hearing, pending the present application. The issues 7.There is only really one issue to be determined by the court and that is what interim access should the father have and how should that be exercised? Discussion 8.The mother makes a number of allegations against the husband, the most serious of which, in so far as the children are concerned, is that she believes that the father drinks to excess and that this effects his ability to care for them. The father denies this. Further the father is now living in his girlfriend’s property. There is an issue concerning its suitability for the boys. The mother also queries the father’s ability to look after the boys for extended periods of time and does not wish the boys to be introduced to the husband’s new girlfriend until it is clear that this is a long-term and stable relationship. 9.Ultimately the mother seeks an order for sole custody and care and control of the boys, whereas the father seeks an order for joint custody and shared care or in the alternative reasonable/generous access. In the meantime I am asked to determine the issue of interim access. 10.Originally the father sought an order for weekly overnight staying access from Friday after school until Saturday afternoon. He also asked that the children stay with him when the mother is out of town. She travels regularly for business. In the normal course of events these would not be considered unreasonable requests. The wife wishes the present arrangement to continue, although she concedes that the father can see the children on Tuesday and Thursday afternoons from 3:00 – 6:00pm. Alternate Saturday access from 10:00 am – 2:00 pm was discussed but not agreed. She opposes any form of staying access at present, for the reasons set out above. Present arrangements 11.By virtue of a court order dated the 22 April 2008, the father presently has supervised access twice a week from 9:30 – 11:30 am at the offices of the Social Welfare Department. The children are dropped off and picked up by the mother’s domestic helper. This was on an interim interim basis and was simply designed to ensure that some access took place prior to the present hearing when the outstanding issues could be looked at in more depth. The law in Hong Kong 12.It is necessary before turning to the evidence to look at the law governing applications concerning children in Hong Kong. 13.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which states that:
14.For the avoidance of doubt s.48C Matrimonial Causes Ordinance, Cap. 179 adds that
15.In so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words the boys have the right to see and to have a relationship with both of their parents. What interim access should the father now have and how should that be exercised? The Recommendations made in the Social Investigation Report 16.Recommendations made to the court in social welfare reports, although not binding are persuasive. If the court decides not to follow the recommendations made reasons must generally be given. The Social Welfare Officer is considered to be the eyes and ears of the court. 17.The Social Welfare Officer recommended custody to the mother, with a condition that access be arranged through herself. During the hearing Ms F confirmed that she thought that the present access schedule was suitable (i.e. Tuesday and Thursday mornings), because it fitted in with the E’s school schedule. She did not consider that her physical presence during supervised access was any longer necessary, although she did recommend that a supervision order be put in place so that access could be arranged through her. She offered to be present at pick up and drop off’s – as this was of particular importance to the mother. She accepted that if access was supposed to facilitate a normal relationship between father and sons, that the present 2 hours, per access visit was too short, especially as it was sometimes shortened even further to enable the boys to eat lunch or because one party was delayed because of bad weather etc. She also had some concerns about the father’s ability to look after the children for extended periods and thought that access should be extended gradually over time. She agreed that there should be reasonable access but within a framework. She also had some concerns about the suitability of the father’s present abode for the children and did not recommend staying access because of that. In particular she said that the furniture was too big. Miss F visited the property on one occasion. 18.Having heard the parties give evidence I accept that the mother has some concerns, which need to be further satisfied before staying access, can be established. In particular I accept that the father needs to prove to the court that he does not have a drinking problem and that his accommodation is suitable for the boys to stay at overnight. 19.In line with the recommendations made by the Social Welfare Officer and the agreements subsequently reached between the parties direct, I am going to make an order to facilitate more regular and extended periods of access. I will not order staying access at present, but accept entirely that the father should have staying access to the boys in the event that there is no risk to the boys caused by any excessive drinking on his part. I also accept that the father’s access should be extended over time, so that in due course he has the boys for whole days. This is something that the parties should be working towards. Likewise I accept that the Social welfare Officer needs to visit the husband’s accommodation again to check to see if it is now sufficiently child proof for over night staying access to take place. Access going forward 20.Consequently I will make an order in the following terms:
Ms Ho of Messrs Chaine Chow and Barbara Hung for the Petitioner The Respondent in person |
Further hearings and rulings under FCMC 14562/2007