L v. M

FCMC 4317/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4317 OF 2008

----------------------

----------------------

Coram:  Deputy Judge C.K. Chan in Chambers (not open to the public) 

Dates of Hearing:  1-5 June 2009

Date of Handing Down Judgment:  30 June 2009

----------------------

J U D G M E N T

----------------------

1.The parties agree to have joint custody of the 2 children of the family but they cannot agree on their care and control.  Therefore, a trial on this issue has become necessary.

2.For the sake of convenience, I shall call the Petitioner “the father” and the Respondent “the mother” in this Judgment.

Brief History

3.The father is now aged 36, working as an Associate Director of the Human Resources Department.

4.The mother is now aged 33.  She is the head of an international mortgage broker.

5.The parties married in 1999. They have 2 children and they are:

(1)   a daughter, M. who is now aged 7, a primary school student (hereinafter called “the daughter” or simply “M”); and

(2)    a son, K. who is now aged 4, a kindergarten student (hereinafter called “the son” or simply “K”).

6.According to the father, despite the fact that they already had 2 lovely children, the mother requested to have a third child in 2006.  At the same time, she also requested to buy a property in the UK.  They had a heated argument as they each held different views on the matters.  As a result, the mother left for the UK alone for a month during the end of 2006 leaving the care of both children to him. 

7.The mother returned in January 2007 but there was no improvement in their relationship. The mother even initiated to move out of the former matrimonial home in February 2007 and they have remained separated ever since.

8.After it had become clear that there was no hope for any reconciliation, the father finally issued a petition for divorce on 18 April 2008 based on the mother’s desertion.

9.The mother has a different story.  She said she did not have a happy married life because of the unreasonable behaviour of the father.  She denied deserting the family but instead, she was forced to move out of the former matrimonial home because the father refused to vacate the same upon the breakdown of their marriage.  She rented a flat in the same housing estate so that she could be in very close proximity to the children.  She even continued to go back to the former matrimonial home every day to have dinner with and to take care of the children.

10.In response to the petition issued by the father, the mother filed and served an Answer and Cross Petition based on the behaviour of the father.

11.For present purposes, there is no need for this court to go into the merits of the parties’ respective petition and cross petition as they are not directly relevant to the present issues.  In any event, the parties did come to an agreement on the main suit and proceeded with the divorce based on one year separation with consent.

12.A decree nisi was granted on 13 October 2008.

13.As to the issue of custody, the parties now agree to have joint custody of the 2 children but they could not agree on who should have their daily care and control. 

14.As to the present arrangement, the children are now residing with each parent on an alternate week basis.  Both parents feel that this arrangement is undesirable as the children have to change home every week.  They agree that the present arrangement has to be changed to grant either parent the sole care and control and for the parent who does not have the daily care and control, he or she should be given generous access to the children in the future.

The Law

15.The Court’s jurisdiction to make a custody order (which would necessarily include the issue of care and control) can be found in s. 19 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”), which states:

“(1)  The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 –

(a)    in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

(b)   -----  ”

16.Section 48C of the Matrimonial Causes Ordinance, Cap. 179 (“MCO”) provides that s. 3 of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) shall apply in relation to any order for the custody, care or supervision of a child which may be made under MCO or MPPO.

17.The general principles as set in s.3 of GMO are as follows:

“(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of such property-

(a)   in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i)  shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to –

(A)   the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)   any material information including any report of the Director of Social Welfare available to the court at the hearing; and

   -------”

18.Apart from the above statutory provisions, the court had in previous cases taken into account other matters when determining custody.  In the case of YLS v. TL (unreported, FCMC 8396/2007, 30 May 2008), HH Judge Melloy had this to say at paragraph 14 of her judgment:

“14.  As I have stated previously (see ZZ v. KYL, unreported, 5 March 2008 and CHFS v. WPLM, unreported, 28 April 2008) there is no statutory checklist in Hong Kong, as exists in other common law jurisdictions, to help both Judges and practitioners, when determining issues relating to children, However, the Law Reform Commission in Hong Kong has recommended a draft checklist of factors based in part on the Children Act 1989 in England and s. 68F (2) of the Family Law Act 1975 in Australia, in its report on Child Custody and Access (March 2005). As in previous cases I intend to refer to the checklist in so far as it relates to the circumstances of this particular case. The factors then are as follows:

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

(b)   the child’s physical, emotional and educational needs;

(c)   the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)   the likely effect on the child of any change in the child’s circumstances;

(e)   the child’s age, maturity, social and cultural background and any other characteristics which the court considers relevant;

(f) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g)   any harm which the child has suffered or is at risk of suffering;

(h)   any family violence involving the child or a member of the child’s family;

(i) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)   the range of powers available to the court under this Ordinance in the proceedings in question;

(l) any other fact or circumstance that the court thinks is relevant.”

19.But as can be seen in the following discussion, the issue in this case is rather narrow and therefore, I will not go into each and every item of the above checklist in this judgment.

Social Investigation Report

20.Upon the direction of the court, a report was prepared by the social investigation officer, Mr. Chan.

21.In his recommendations, Mr. Chan was of the view that both parents had maintained a very close and intimate relationship with the children.  The following passage was said about the parties’ relationship with the children at paragraph 33 of the report (p.10 of Bundle B):

“33.  From the information gathered in the course of social investigation, it is clear that both M and K establish strong emotional attachment bond to the father, Mr. L and the mother, Ms. M. They have indicated their likings to be with both parents. And the parents, Mr. L and Ms. M in return love and care about the children.  The parent-child relationship for Mr. L and Ms. M was observed to be very intimate and harmonious. Both Mr. L and Ms. M confirmed this observation in the interview. They shared the same understanding that from the children’s perspective, M and K need both parents than either of them.”

22.As to the present arrangement of alternate week care to each parent, Mr. Chan was of the view that the children have, despite some initial inconvenience, adjusted quite well after its implementation.  Therefore, it was his recommendation that both parents should have joint custody and joint care and control of the children and to maintain the status quo (para 37 of the report at p.11 of Bundle B):

“37.  To move onto a more positive co-working relationship for the benefit of the children, both Mr. L and Ms. M are required and agree to attend some follow-up counselling sessions like those provided by clinical psychologist of Social Welfare Department.  To assist them to go through the process smoothly, a period of supervision might consider appropriate.  In view of the above, the Investigating Officer recommends the Petitioner, Mr. L and the Respondent, Ms. M to have joint custody of the two children, namely M and K with the existing living pattern remains unchanged. Regarding the care and control of the children, the Investigating Officer proposes both Mr. L and Ms. M to share the care and control of the children so that they could be on equal base for further co-working. A supervision order of 12 months is required as to ensure the continued cooperation between Mr. L and Ms. M.” (underline added)

23.When it was put to Mr. Chan that now both parents did not want joint care and control, his response was that as he did not know what had happened during the 7 months’ adjournment period, he therefore had no comments on the issue of sole care and control.

Clinical Psychologist Report

24.Ms. Ng, a clinical psychologist of the Social Welfare Department has also prepared a report.  The gist of her recommendations can be seen from the Conclusion section at the end of the report (pp. 20-21 of Bundle B) in which she said:

“Conclusion

K and M, more so for M, have experienced enormous distress as a result of the divorce and custody fight between Ms. M and Mr. L. As M is older and understands the family change better, she suffers more. She loves both parents and is torn between them. At present, the ex-couple’s relationship is tense. Their communication is totally blocked. No matter to whom the custody is granted, the children experienced enormous distress. Everyone lose and the children suffer most. In view of the above, counselling services might be needed for Mr. L and Ms. M to resolve their conflict and facilitate their communication.

The assessment indicates that both parents love their children and have close relationship with the children. To a large extent both of them are good parents, although each of them has strengths and weaknesses. If they are able to resolve their conflict and improve their communication as parents, joint custody would be the best of all alternatives for this family. On the other hand, if they could not re-negotiate their relationship as co-parents, joint custody might further intensify their level of conflict and would be damaging o the children. In case sole custody has to be granted, result of the current assessment indicates that Mr. L might be a preferable parent.”

25.In other words, what Ms. Ng recommended was joint custody but if that did not work, then she would recommend sole custody to the father.  

26.Ms. Ng said although she viewed both the father and the mother were good and loving parents, when the children were interviewed with the individual parent, both of them seemed to be emotionally closer to the father.  She said when the children were with the father, they had a lot of laughter and even invited the father to play with them.  But when they were with the mother, they appeared to be more reserved.  She said this might be an indication that the children were facing more stress when they were with the mother.  That was why she recommended sole custody to the father if joint custody did not work.

27.Just like the Social Investigation Report, it was rather unfortunate that no specific recommendation was made in the Clinical Psychologist Report on sole care and control.  It may due to the fact that both reports were made some 7 months ago when the issue on sole care and control was not so apparent.  But from the contents of Ms. Ng’s report and her evidence in court, she seemed to be in favour of the father having the sole care and control.

Summary on both the Social Investigation Report and the Clinical Psychologist Report

28.After reading both the Social Investigation Report and the Clinical Psychologist Report, and hearing the evidence of Mr. Chan and Ms. Ng in court, I think the following facts can be discerned:

(1) Both parties are good and loving parents;

(2) As far as physical care is concerned, both parents are in a position to provide adequate care for the children;

(3)  Both parents can maintain close and intimate relationship with the children; and

(4)  If a comparison really has to be made, the children seem to be emotionally more attached to the father than the mother.

Wishes and Feelings of the Children

29.Both children are of very young age.  The daughter is now aged 7 and the son aged 4.

30.When the daughter was being interviewed by the social investigation officer, she said she liked staying with both parents but she did not want to talk much about the topic.  She requested the officer not to ask her about her family and her parents.

31.When she was interviewed by the clinical psychologist, she said she preferred to live with her father.

32.As to the son, when he was asked by the social investigation officer about his feelings towards his parents, he said he liked them both.  According to Mr. Chan, the son was simply too young to articulate his inner feelings except to express his likings towards both parents.

33.But when he was interviewed by the clinical psychologist, he said he preferred to stay with the father.

34.I think it is fair to say that over all speaking, both children like their parents but if they have to choose between them, they did show a slight preference to stay with the father over the mother.  This actually coincided with the social investigation officer and clinical psychologist’s findings that both children were emotionally closer to the father than the mother.

The Mother’s Case

35.The mother’s main argument throughout the whole trial is that she is the parent who can provide personal day-to-day care to the children, which is much more preferable than the care to be provided by the domestic helper if the children are to stay with the father.

36.According to the mother, she is now working as an international mortgage broker through a company in which she is a shareholder and director.  At present, she has a very flexible working schedule as she mainly works UK hours.  In the week when the children reside with her, she would personally take care of the children for the daily routine.  After the children get up in the morning, the mother will have breakfast with them before they go to school.  She will take M to the bus stop, sometimes with K.  Having put M on the bus, she then drives K to school on her way to work.  She takes K up to his class to settle him in and she would also talk to the teacher.  She also stays in contact with M’s teacher through e-mails.

37.She said she usually came home from work at about 4:30 pm, sometimes picking up M on her way.  K would have already been at home by about noon as he only attended half-day classes.  As soon as she arrived at home, she would do homework with the children and then play with them for a while, followed by dinner which would be prepared by the 2 domestic helpers employed by the mother.  They would have dinner together, followed by baths, stories and bed.  All these would be done by the mother herself.  After the children finally went to bed at about 8:00pm or 9:00pm, the mother would start working again mainly through e-mails.  According to the mother, as her company would downsize its operation by moving to a much smaller office starting from September 2009, she would then work from home which would render her even her time to spend with the children.

38.The mother went on to say that she was residing at a detached house measuring about 3,000 sq ft which was spacious enough to provide with each child a room of his/her own.  She had 2 domestic helpers but according to her, she would not rely on them on the children’s daily care. Their job was mainly to take care of the household chores and do the cooking.

39.The mother also said she was now in stable and long term relationship with her partner, Mr. K who had maintained a very good relationship with the children. 

40.Mr. K was called to give evidence and being cross-examined by the father’s counsel.  He said he liked the children but he had no intention to replace the father’s role.  After hearing his evidence in court, I am satisfied that Mr. K was getting along well with the children. 

41.Finally, it is the mother’s case that both parents are loving and caring parents.  But if the children’s daily care is to be entrusted to the father, that means the children’s daily routine would be handled by the domestic helper, Ma since the father is working full time and would only be back home at about 7:30pm.  By that time, the children would have already been fed and bathed by Ma and the father’s involvement would be restricted to the children’s homework only.  She is of the view that a mother’s care should always be preferable than a domestic helper’s care and therefore, it will be for the children’s benefits that the daily care and control of the children be granted to her.

The Father’s Case 

42.The father is now working as an Associate Director of the Human Resources Department of a bank.  He works 5 days a week with 30 working days annual leave.  He is now residing at the former matrimonial home with both children on alternate week basis.  He usually leaves home for work at about 7:30am to 7:45am and returns home at about 7:30pm in the evening.  He agrees that a lot of the basic care of the children has to be left to the domestic helper, Ma, who would bathe and feed the children before his return from work   But he said he was the one who would do the home work or revision with the children before they go to bed at about 9:00pm.  He said Ma has been with the family for some years and the children were very close to her.

43.The father’s mother (“the paternal grandmother”) sometimes would stay with him and may provide assistance in the caring of the children.  However, it is common ground that the paternal grandmother is a Canadian citizen who would not stay in Hong Kong for the whole of the year.

44.Despite his regular working hours, the father said he could also be flexible in finding time to care for the children.  He said he had a very understanding superior who would not demand him to work overtime unless it was absolutely necessary.  He also has 30 working days’ annual leave making it possible for him to take leave to attend to the children if necessary.

45.It is his case that the children are maintaining a closer relationship with him which is reflected in both the social investigation and clinical psychologist reports.  As he is able to take care of the children’s emotional needs, he is therefore the more preferable parent than the mother as far as the care and control of the children is concerned.  He asks the court to grant a joint custody order but with the care and control be granted to him.

Father’s Other Witnesses

46.During the interlocutory stage, the father has also filed affidavits from 2 other witnesses.  They include:

(1) The paternal grandmother whose affidavit evidence was mainly on an incident happened on 15 June 2008.

(2)  Ms. P, a former domestic helper of the mother who has made certain allegations against the character of the mother.

47.These witnesses were not called at the trial.  Both parties agreed that their evidence were only of marginal relevance to the present issues and therefore I am not prepared to give any weight to their affidavit evidence.

Discussion

48.The present issue is who should get the care and control of the 2 children of the family.  Before I make my decision on this issue, it may be helpful to remind ourselves what have been agreed between the parties and they are:

(1) There shall be an order on joint custody, meaning that both parents will fully participate in the raising of the children, at least as far as important decisions on the children’s future is concerned; and

(2) There shall be generous access to the parent who does not have care and control, which would include staying access during alternate weekends and half of the long school holidays, one evening access during the week and telephone access.

49.Coming to the issue of care and control, I can see that there is evidence in favour of the father in that the children are emotionally more attached to him.  Both the social investigation and clinical psychologist reports came to this same conclusion.  After considering all the evidence, I am satisfied this is indeed the case.  This is of course an important factor to be considered in deciding on the issue of care and control of the children.

50.However, it is also important to take note of the fact that the mother has also maintained a close and intimate relationship with the children, although less intimate if compared with the father.  This is not a case in which the children are close to one parent while treating the other parent as a total stranger.

51.Furthermore, it is also important to consider the level of care that will be provided by each parent to the children.  As the father has a regular employment requiring him to commute to Central everyday of the working week, his available time to be spent with the children will necessarily be limited.  As far as weekdays are concerned, the father will see the children for about 30 to 45 minutes in the morning (between 7:00am to about 7:30am or 7:45am) and about 1.5 hours in the evening (between 7:30pm and 9:00pm). 

52.On the other hand, the mother is able to spare much more time with the children because of the flexibility of her working schedule.  If the children are to stay with her, she is able to afford the time to take M to the bus stop in the morning and to drive K to school before she goes to work.  Starting from September, she will even be able to work from home saving her the travel to Central every day. She will be able to receive K from the kindergarten at about noon and to meet M after school at about 4:00pm.  The time the wife will be able to spend with the children will at least be triple that of the father.

53.Even more importantly, the mother’s flexible working schedule allows her to render personal care to the children, unlike the father who has to rely on a large extent the assistance of the domestic helper.  Of course, I fully agree with Mr. Clough’s submission that a vast majority of Hong Kong families relies on the assistance of domestic helpers in looking after their children and I am not saying for a moment that Ma, the domestic helper is not in a position to render sufficient care for the children.  But if the mother can render the same level of care, I simply cannot see why the children should be denied the chance of receiving such care from their birth mother.  After all, there is no guarantee that the domestic helper will be there to see the children through to their adulthood.  Therefore, I am of the view that the mother is definitely in a better position to provide for the daily care of the children in comparison with the domestic helper.

54.I fully understand that the children are emotionally closer to the father at the moment but I am of the view that the ability of the mother in providing personal daily care to the children is more than enough to offset this advantage of the father.  After all, the mother’s relationship with the children is also close and intimate.  With the passage of time, I think it is quite likely that the mother can also achieve the same level of close and intimate relationship as the father.

55.As to the issue of care and control, it is a difficult choice as both are loving and caring parents.  Any decision on sole care and control will necessarily mean that the losing parent’s time to be spent with the children has to be reduced.  But still, it is a choice that cannot be avoided as both parents object to the present arrangement of alternate week residence, which I also agree not to be in the best interest of the children. 

56.After taking into account of all the circumstances of this case, in particular, the mother’s ability to provide personal daily care to the children, I have come to the view that the interest of the children will be best served by granting their sole care and control to the mother.  I sincerely hope that the father will not take this decision so much as a defeat in the battle for care and control, as he can still have a significant role to play in the future development of the children.  He can still have generous access and a close and loving relationship can still be fostered and maintained by a constructive use of those times.

57.I understand that both parties also agree to engage a private clinical psychologist, Dr. Levy to provide counselling service to the children so as to reduce the adverse effect of the present proceedings on them.  I agree that this is a proper course to take and I will grant an order to that effect.

Orders

58.Based on the above reasons, I will make the following orders on custody:

(1)  There shall be a joint custody order for both children with sole care and control to the mother.

(2)    The father shall have reasonable access, including staying access as follows:

(i) Alternate weekend staying access between 8:00pm on Friday and 8:00pm on Sunday;

(ii) Evening access on every Wednesday between 6:00pm and 8:30pm;

(iii)   Staying access for half of all long school holidays, including summer vacation, Christmas, Chinese New Year and Easter holidays; and

(iv)   Reasonable telephone access.

(3)  Both parties to arrange counselling service from Dr. Levy for both children. 

Costs

59.Both parties are loving and caring parents and it is my view that there shall be no order as to costs, including all costs previously reserved, for the custody issue.  This will be in the form of an order nisi to be made absolute after the expiry of 14 days from the handing down of this judgment.

Representation:

Mr. Neal Clough, Barrister-at-law, instructed by Messrs. Henry Lam & Associates, for the Petitioner

Ms. M. Rattigan, Barrister-at-law, instructed by Messrs. Hampton, Winter & Glynn, for the Respondent