Y v. S

FCMC No. 9498/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9498 OF 2005

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BETWEEN

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DECISION

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1.The is a trial relating to the custody of the only child of the family, a girl named E born on 23^rd March 1998 in Hong Kong and is thus now twelve years old.

2.The Petitioner mother (“Wife”) seeks an order for the sole custody, care and control of E with defined access to the Respondent father (“Husband”). The Husband seeks an order for joint custody, and for shared care and control of E which effectively splits of E’s time on a 50-50 basis between the parents. He further requests that holidays relating to the western culture, such as Christmas and Easter be allocated to him while those relating to Chinese culture, such as the Lunar New Year holidays, Mid-Autumn Festival be to the Wife. He wants to be involved in E’s upbringing and does not want to be a superficial “weekend/holiday dad”. He objects to the current arrangement of access. He says that it has not been made with his prior agreement and is imposed on him unilaterally by the Wife. He complains that the Wife is deliberately trying to exclude him as much as possible from E’s life with the result that she assumes the dominant role in E’s upbringing.

3.The Wife denies such allegations. She complains that the Husband is trying to be difficult and interferes with E’s routines which have been well taken care of by her. Many of these routines have been in place before the marital breakdown. It is the Wife’s case that despite her efforts, they disagree on almost everything concerning E and therefore an order for joint custody simply will not work out.

The Trial

4.It is most unfortunate that the trial has spread over several months and has been adjourned part-heard several times, partly because of the under-estimation of time for cross-examination of witnesses and partly because of the condition of counsel’s and Court’s diaries. Bundles of e-mails exchanged between the parties sufficient to fill up five lever arch files together with four box files of court documents, reports, solicitors’ correspondence, affidavits and exhibits are lodged and relied on at trial. A total of five witnesses have testified at trial. They are:

i) Mr. Kwan, the Social Welfare Officer who prepared three social investigation reports;

ii) Miss Mok, the Clinical Psychologist who has done psychological assessment of the parties and E and produced two reports;

iii) Miss P, the present partner of the Husband with whom he is now cohabitating;

iv) the Wife; and

v) the Husband.

5.In the 1^st Social Investigation Report made by Mr. Kwan dated 28^th December 2005, it appears that he has reservation to recommend joint custody on the ground that effective communication and co-parenting between the parties are absent. With the benefit of the 1^st psychology report by Miss Mok, Mr. Kwan wrote his 2^nd report dated 2^nd June 2006 and recommended sole custody of E to the Wife with defined access then in place to the Husband as well as equal split of long school holidays. He also mentioned that E had expressed dislike of frequent transfer between the 2 parental households and wished to maintain the status quo, i.e. lives and taken care by her mother. In his updated report dated 27^th August 2007, Mr. Kwan maintained his recommendations set out in his 2^nd report, and on the similar grounds. By then Miss Mok had also submitted her 2^nd report of 24^th August 2007. Miss Mok was of the view that a clear and defined order from the Court regarding the arrangement over access and share of long holidays likely be the most probable resort to minimize their argument

6.A lot of facts were ventilated at trial. The parties differ on their perspectives with regards to what should be or ought not have been done. There is also factual disagreement on many issues. For the purpose of determining the question of custody, I do not consider it necessary for this Court to resolve each and every dispute of facts. I have observed the parties giving evidence in the witness box for many days and no doubt conclude that they are both loving, caring and admirable parents. Although very often when they were in conflict they made irrational allegations against each other and questioned whether the other had put E’s best interest into consideration, I have no hesitation to believe that they both love and care about E and have demonstrated the ability to do so. It is not in dispute that according to the social investigating reports both are impressed to be caring and have shown equal ability to attending to the social, emotional and intellectual development need of E. It is also common ground that despite the mistrusts and conflicts between the parents, E continues to enjoy a good relationship with and affection from both parents without being “overly entrapped into the snare of the parental discord”, to use the description of Miss Mok, the clinical psychologist in her 2^nd report. It is also fair to say that in these reports, there is totally no criticism by these Court experts of either of them in their care of E and their respective ability to do so.

7.One of the most crucial questions to be decided in the present case is whether the communication of the parents is so bad and grounds of future cooperation totally lacking that joint custody with equal sharing of care and control, as advocated by the Husband, is unworkable. Ms Irving, counsel for the Husband, submitted that the Wife had a history of cooperation until she discovered that the Husband had an affairs with another woman. She had the capacity to cooperate but not the will. She should not be rewarded for something which she ought to have shown but she refused to do so. Mr. Clough, counsel for the Wife, submitted however, that the parties did not cooperate they would not cooperate in future. He urged the Court not to impose an order for joint custody unless satisfied that such order benefits E. 

The Legal Principles

8.Custody orders are made under the provisions of section 10 of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”). The general principles governing custody of a child of the family are set out in section 3 of the GMO, which stipulates:

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

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

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

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

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

9.Accordingly, it is E’s welfare which determines the course this Court will follow. The Court should decide whether a joint custody order in favour of both parents or a sole custody order in favour of either one best promotes E’s interest.

10.It will perhaps be useful to first of all understand the terminologies of “sole custody” and “joint custody” orders which the parties are now asking this Court to make. The learned H.H. Judge Melloy was in S v Z  (unreported), FCMC14535 of 2005, 10^th September 2007 dealing with similar terminologies. She relied on the report entitled Child Custody And Access published by The Law Reform Commission of Hong Kong in March 2005 for what is meant by custody, joint custody care and control. I share the learned judge’s views and consider S v Z and the Report provide very useful working definitions of the following terminologies. They are:

i) “Custody” comprises the bundle of rights that parents have over their children. This includes the right to “care and control” and the right to make all important decisions affecting the child, such as decisions regarding his education, religion and medical treatment: per paragraph 2.16 of the Report and paragraph 11 of S v Z;

ii)   “Joint custody” means that the court grants custody to both parents although physical care and control is usually granted to one of them. The parents should be able to make the major decisions concerning their children’s life together.  Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively: see paragraph 14 of S v Z. The learned author A. Liu has in Family Law for the Hong Kong SAR, HKU Press 1999 at p.279-80 explained the rationale behind the joint custody order: that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parents are given that right. For such order symbolizes divorced or separated parents playing a joint role in the upbringing of the chills, and neither is excluded: per paragraph 2.32 of the Report and paragraph 14 of S v Z;

iii) “Care and Control” mean the day-to-day looking after of the child i.e. getting the child up for school, making sure that he is fed and watered, that he does his homework and that he has an appropriate structure to his day: paragraph 16 of S v Z.

11.As regards the difference in rights between a custodian and a non-custodian parent when a sole custody order is made, the learned Judge has this to say in paragraphs 12 and 13 of S v Z whichI consider correct statements concerning such difference: 

“12.     In other words the term “custody” means making the important decisions about a child’s life.  If a parent has sole custody the implication is that ultimately the decision-making power vests in that parent.  The difficulty is that the other non-custodial parent may feel excluded.  This point was dealt with in the case of Dipper v Dipper [1980] 2 ALL ER 722, which was referred to by Mr. Egerton, in his opening address :

“It is wrong to suggest that the parent with custody has the right to control the children’s education, religion or other major matter in their lives.  Neither parent has any pre-emptive right over the other, each being entitled to be consulted and disagreements between them must be resolved by the court”.

13.       In other words the non-custodial parent still has the right to be consulted on all matters affecting the children.  If the non-custodial parent feels strongly about a particular issue then the appropriate application may be made to the court in order to clarify matters.  Ultimately it is for the court to decide.  But it would be true to say, … that “whoever has custody has ‘the go’.  Ms Irving pointed out in her closing, and I would agree with her however, that returning to court on a frequent basis is never the answer.”

12.The learned Mr. Recorder Rimsky Yuen SC has helpfully analyzed the approach to whether to grant joint custody to both parents or sole custody to one of them in ML v YJ (Joint or Sole Custody), [2008] HKFLR 88, after going through a number of local and English cases. His often-quoted summary is at page 95:

“In light of these authorities, the position can be stated as follows:

(1)  In considering whether to grant joint custody to both parents or sole custody to one of them, the first and paramount consideration is the welfare of the child.

(2)  Whether or not a joint custody is workable depends very much on whether the parents can co-operate.  A court may refuse to grant joint custody if there is no reasonable prospect that the parties will co-operate.  Whether or not there is such reasonable prospect is a question of facts.  If there is no reasonable prospect of co-operation between the parties, an order of joint custody can be a recipe for disaster and contrary to the best interest of the child.

(3)  A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children.  Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the children’s upbringing.  However, if it is clear that a joint custody order is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties.  As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.

(4)  A custody parent does not have the right to make all the decisions about the children in spite of disagreements of the other parent.  Should there be any disagreements over major matters affecting the children, the party who does not have custody can bring the matter to the Court for determination.”

13.In S v Z, H.H. Judge Melloy also states the following regarding joint custody as per paragraph 15:

“Sometimes orders for joint custody are aspirational.  They are made in the hope that the parties’ will be able to work towards co-operating with each other in the future.”

14.The above forms the guiding principles which this Court would follow regarding whether to make a joint or sole custody order regarding E.

Background and History of Proceedings

15.As I have said above, voluminous emails and affidavits have been exhibited making allegations and cross-allegations over E and the parties’ relationship. For the purpose of the present proceedings it will be unnecessary for the Court to resolve each and every of such disputes and repeat the same here. However, a number of incidents that throw light on whether or not the parties can cooperate or there is any prospect of cooperation will be referred to in this decision. If it is necessary for this Court to make finding of facts and the facts stated herein are different from the versions advanced by a party, it is because this Court has chosen to accept the other party’ statement in preference to that party.  

16.The Wife is a local Chinese, born and brought up in Hong Kong and is now aged fifty. She obtained a diploma in Social Work in 1984. She then worked as a social worker for about 4 years before going to England to further her studies in 1988. She obtained her Master degree in 1989 and Ph.D. in 1994. After returning to Hong Kong she was and is doing teaching and research in local universities.

17.The Husband is an English originated from England and was born and brought up there before settling in Hong Kong. He is now aged forty-seven. He obtained a post-graduate diploma in Music and Drama and Certificate in Education. He was a trained music teacher. After coming to Hong Kong he has been teaching music full-time for about 10 years until 2005. He then did part-time teaching and resumes full time now in a local international school.  

18.They met each other on 4^th June 1989 when they were taking part in activities relating to the events in Tiananmen Square outside the Chinese Embassy in London. Their romance started soon afterward. They started cohabitation in 1991. They married on 9^th April 1994 in Y of the United Kingdom before moving to Hong Kong in May the same year. E was born on 23^rd March 1998 in Hong Kong.

19.It is not in dispute that their relationship went on well after the birth of E, which was a planned pregnancy, until in or about early 2004. After the birth of E, the Wife worked as a part-time lecturer in 2 universities in Hong Kong while the Husband worked as a full-time music teacher in a local international school until end of school terms in 2004/2005. It was a shared decision of the parties that the Wife taught part-time for the purpose of taking care of E and the Husband taking up full-time job as the major breadwinner. Despite such division of labours the Husband also played an important part in taking care of E. He did spent long stretches of times looking after E and taking part in the day to day parenting, particularly during her holidays and weekends because his day offs coincided with hers.

20.Miss Mok, the clinical psychologist who had interviewed the parties had written in her report that “… before the breakdown of the marriage, the parents had adopted a relatively egalitarian approach in child rearing”. As reflected in their emails exchanged, it is quite obvious that they have made joint decisions concerning E’s upbringing in the past. For instance, E was to enroll in an international school and the Husband was to take care of her English while the Wife was to teach and communicate with E in Chinese so that E has benefit of both cultures. They decided that E would learn to be independent and therefore started to let E sleep alone in her own bedroom since she was about six months old. They held similar views on “junk foods” and therefore try avoiding taking her to a well-known US fast food chain. They put E to bed early so that she could lead a healthy life. Both of them do not want gender-stereotyping E by restricting her activities to those girls of her age normally do and therefore they put her in ballet class as well as football class.

21.The family engaged a domestic helper to assist in taking care of E and all other household chores. They rented a 2-storey premises in L as their matrimonial home. They were located on the top 2 floors (1^st and 2^nd) of a 3-storey small village house commonly built in Hong Kong rural areas. Both flats were with bedrooms. Originally they rented the 2^nd floor only but later the 1^st floor as well. They occupied one room on the 1^st floor while E occupied another. The 2^nd floor was used as utilities room, guest bedroom and study room. Each floor was with its main entrance. The two floors were connected on the outside by an external staircase.  

22.In or about January 2004, the Wife suspected that the Husband was having extra-marital affairs with other women. In August 2004, the Husband was requested and he did move out of his bedroom. He moved to the 2^nd floor but in November 2004 he refused to stay there anymore. I accepted that he wanted to be close to E. The Wife therefore moved upstairs and the Husband moved back to the 1^st floor in November that year. During that time E continued to stay on the 1^st floor in her own room, while the Husband in the next room.

23.The Husband did not deny the Wife’s allegation of infidelities. However, he insisted that his relationship with Miss P could not be said as a reason for his marital breakup.

24.The Wife complained that despite the fact that the Husband was staying with E after moving back to the 1^st floor, he very often stayed out and did not come home in the evenings, leaving E alone. He stayed in the local bar or with Miss P who was then also living in L. She therefore put E back in her original bedroom on the 2^nd floor next to hers during weekdays since April 2005.

25.At the same time as the marital breakdown, the Husband learned of the non-renewal after school ended in 2005 summer. He lodged an appeal but was unsuccessful. Thereafter he taught part-time at another international school. He only resumed full-time music teacher in September 2008.

26.It is not in dispute that towards the end of 2004 and early 2005, the parties sought marriage counseling. They also sought advice from a solicitor who was the ex-boyfriend of the Wife on the question of divorce and arrangement of E. A sample Deed of Separation was provided. In an email sent by the Wife to the Husband on 28^th January 2005, the Wife enclosed an amended version of the sample deed to the Husband and invited his suggestions. Among other things, paragraph 5(b) of the sample deed has been amended. The said clause in the sample deed originally provides for the Wife having sole right to determine the living place of the child of family. It was amended by the Wife to the following:

“During the period of separation, the custody and control of the said child shall remain jointly with the Wife and the husband”.

27.The word “jointly” was added to the soft copy of the deed. Both parties at the end did not sign this deed.

28.The last woman with whom the Wife accused the Husband to have associated was Miss P. She and the Husband had been colleagues in the same school. Miss P admitted their relationship started since March 2005 until now. However, judging from emails exchanged between the parties, I believe their relationship commenced early than March 2005 and probably since early 2005 when the Wife complained the Husband staying out at Miss P’s place. The Husband did not deny that. I believe that when the relationship between the Husband and Miss P was apparent to the Wife, the parties’ relationship broke down entirely and their cooperation gone. I believe the Wife then considered Miss P the perpetrator causing their marital breakdown.

29.Changes in their cooperation relation took place in or about March 2005. It is telling from an email dated 5^th April 2005 sent by the ex-boyfriend solicitor of the Wife to the Husband. In that email he wrote:

“It seems that there have been some changes on the matter since last time we meet. …”

30.Hostility began to build up. Tones in the emails exchanged revealed that. In another email to the Husband dated 19^th May 2005, the said solicitor said:

“I reiterate that I don’t act for YOUR interests but only A’s [the Wife’s]. If you don’t feel comfortable, please don’t come.

1.   whether you will consent to divorce based on the fact of 1 year’s separation;

2.   if you do consent, the custody, care and control of E;

3.   maintenance for E to be paid by you

A will not participate in any open ended discussion, unless you agree to the above agenda.

Please also note that if the 1^st issue above is not agreed, we shall not continue any further discussion but to proceed with the petition based on unreasonable behavior and/or adultery against you and other parties concerned.”

May 2005 Encounter

31.It is worth-mentioning that on 8^th May 2005, there was an open conflict in the L ferry pier. It was the Mother’s Day. Although the Wife expressed through her solicitors to the Husband saying that E was panicked by finding the Husband and Miss P queuing with her son C behind them and raised queries that Miss P was interfering with the negotiation and upbringing of E, I prefer to accept, after hearing evidence of the Husband, the Wife and Miss P in Court, that it was the Wife who approached the Husband and Miss P, confronting them with shouts, resulting in upset of E by “this display of rage in full public gaze”, as submitted by Ms Irving.

Beijing Offer

32.In or about mid-April 2005, the Husband got an offer from an international college in Beijing. Initially he proposed to accept the offer and take E with him. The Wife opposed. The parties then had very heated argument over this matter. Eventually he decided to decline the offer. I accept one of his reasons of rejection was that he wanted to maintain E’s status quo so as not to cause disruption to her study and pull her out from an environment familiar and supportive to her.

The Petitions

33.On 25^th May 2005, the Wife issued a petition based on one-year separation since about March 2004 with consent of the Husband (“1^st Petition”).  It was later withdrawn on 5^th July 2005. The Husband said the withdrawal of his consent was because they had not separated for 1 year as pleaded. In so far as it relates to the present proceedings, suffice to say that in the 1^st Petition, the Wife filed a “Statement As To Arrangement For Child” dated 25^th May 2005 acknowledging that E was then being taken care of by the Wife or the Husband when either party was at work. The Wife was then asking for sole custody of E. The Husband in the Form 4 requested joint custody, care and control.

34.The present petition was based on the facts of “unreasonable behaviours” on the part of the Husband and was issued on 26^th August 2005. Two further respondents, who were allegedly found to have association with the Husband, were named in the petition. However, their inclusion as parties is without leave of the Court. Miss P was named as the 2^nd Respondent. It is the Husband’s case that the naming of the other respondents in the petition is with an ulterior motive of embarrassing them. By a consent order dated 21^st December 2006, all respondents except the Husband in the Petition were removed from the suit. The Wife was ordered to pay costs of the Husband and Miss P.

35.A Decree Nisi of divorce was granted on 7^th March 2007.

36.As stated above, E stayed on the 2^nd floor with her mother and the Husband had weekend access to her. By a mail dated 12^th June 2005, the Husband stated that his holidays had started and E would be sleeping downstairs. He stated that he would be looking after E until the end of his holidays and then handed her back to the Wife. He mentioned that care and control would be his responsibility as it had always been during these holidays in the past. He asked the Wife, and I quote, “… to keep her distance as he believed it would not be good to E to have the two of them competing for her affections either privately or publicly”. He said that this was their agreement in early 2005 before their relationship turns acrimonious. The Wife perceived this message as a threat. It was the Wife’s case that leaving E to the Husband worried her as she had no idea then about his plan for job, places he would be staying with E (she said the Husband seemed not staying in L anymore), his proposed arrangement for that summer, whether he was going to leave Hong Kong, etc.

37.The Husband was furious about the questions, though he did provide his answers. He claimed these questions were insulting, intended to prevaricate and holding E hostage to negotiations. The Husband responded that the Wife had held E’s passport, it would be impossible for him to take E out of Hong Kong for a trip. His phone number, email address and living place remained unchanged. He saw no reason why the Wife needed to worry and to ask before agreeing to sort out E’s access for that summer with him, except to alienate him from E.

38.It has all along been the Husband’s case that in early 2005 when they agreed to divorce, there has been an agreement that E would be staying with the Wife during weekdays and he would have weekends as well as holidays access to E. The Wife denied that. Although the court is not bound by that agreement as the ultimate yardstick remains E’s welfare, I would accept that there has been some sort of agreement reached although each party may have their own understanding of the said agreement. The Wife’s email dated 10^th June 2005 tends to support this finding. In response to the Husband’s intention to take E to school on 13^th June 2005, which was a Monday, the Wife has this to say in her email:

“…I don’t understand why you intend to break our agreement and intervene in my time with E without seeking my consent. As we agreed at the moment, I look after her during weekdays while you are looking after her during weekends. In addition, we have not come to any agreements on the arrangement of E’s summer holiday which will start on 8^th July 2005.”  (my emphasis)

39.In any event I believe the Husband only had access to E during the weekends during E’s 2005 summer holidays. The Husband had raised repeated complaints that his access was restricted to weekends despite the fact that he was available during weekdays when the mother was working during E’s summer holidays. The Husband said that E was even removed from L to her own office during weekdays for the purpose of preventing the Husband from accessing to E. The parties had numerous disputes over access to E, including an incident of alleged assault that happened on 18^th June 2005, confrontation in the public when the Husband tried to sit near E on board a ferry to Central on 1^st September 2005. Both parties claimed that they wanted to deal with E’s interest in a sensible ways and for the welfare of E.

40.Their conflicts cumulated to an the incident in October 2005 in which the Husband took away E from the Wife without her consent. The Wife immediately made an urgent application to Court on 12^th October 2005 for return of E and for her interim custody with supervised access to the Husband.

October 2005 Incident

41.It is not in dispute that since April 2005 when the Wife put E back to 2^nd floor of the L house, E would be staying with the Wife during weekdays and would go to the Husband from 6:30 pm every Saturday and came back to the Wife at 8:00 pm Sunday. E was in her primary 3 in K School in September 2005. Like many other school children in Hong Kong, E had also joined many privately arranged extra-curricular activities. These activities, including ballet classes on Monday and Thursday, piano lesson on Friday, would continue during the term break. Apart from these classes E was also required to do her piano practice and Chinese writing almost everyday. The Wife described E having a busy schedule.

42.E had her mid-term break from 10^th October 2005 and got 5 days off. The Wife had planned to go to Disneyland and to the Ocean Park during E’s term break. The Wife said that the unreasonably taking away of E described below messed up her plan.

43.On Sunday, 9^th October 2005 at around 7:30 pm the Husband gave the Wife a phone call saying that he would not be returning E to her that evening. E would only be returned the next Sunday (16^th October). He refused to disclose his whereabouts. The Wife immediately reported the matter to the Police.

44.The Police later managed to reach the Husband and E over the phone. The Husband initially refused to tell the address where E would be staying but he later agreed to do so but it should only be restricted to the Police. The Police later also managed to obtain a promise from the Husband to let E call her mother once every day. E did ring on 10^th October but not on 11^th October 2005. It was later known that the Husband had taken E for barbecue that evening to Bridal Pool where the cell phone network coverage was poor. Furthermore, he had not brought with him the charger that week so that he had to switch off his cell phone in order to save battery when E needed to make the call.

45.Since the Wife could not reach E, she therefore took out an urgent application for interim access and return of E.

46.On 13^th October 2005, the Court ordered, inter alia, that the Husband do return E to the Wife by noon on Friday, 14^th October 2005. Interim custody was granted to the Wife with defined access to the Husband on every alternate Saturday and Sunday from 8:00 am to 8:00pm. By a further order dated 10^th January 2006, the Husband’s access to E was increased to staying access every two weeks from 8:00 am Saturday to 8:00 pm Sunday and visiting access from 8:00am to 8: pm on Saturdays when the Husband has no staying access.

47.The Husband’s explanation in Court is this. He took E to barbecue, Disneyland and resort hotel during that week. He admitted such move was without the Wife’s prior consent. However, he was not satisfied with the then arrangement regarding E because it was unilaterally imposed on him by the Wife when they separated. He had never agreed nor consented to her arrangement. He did not want to take drastic action during E’s 2005 holidays because he still had hope to settle amicably through calm and sensible discussion with the Wife. However the discussion was in vain. Every parenting problem was turned into quarrel and protracted emails argument. He was frustrated. He could only have access to E during weekends during E’s 2005 summer holidays. Access to E during the week was prevented. He therefore took the matter into his own hands with a view to reverse the situation. It is his view that for the E’s benefit, she should be given unrestricted access to both parents. In the witness box he admitted that with the benefit of hindsight it might not be the wisest moves but E did enjoy her stay with him.

48.Thereafter, as the matter of custody and access remained unresolved, a number of applications followed. These included the Husband’s two urgent application in respectively April and May 2006 for interim staying access during the Easter holiday and a public holiday in May 2006. Upon certain undertakings by the Husband, including his undertakings not to leave E alone and not to allow E to see Miss P during these further access periods, his applications were successful.

49.In the run-up to this trial and also during this trial, the parties continue to have conflicts over aspects of parenting. The Husband moved out of the L village house in November 2006. He now lives with Miss P and her son C in Braemer Hill.

50.The following are some of the conflicts between the parties during the separation.

E’s Eye Test

51.According to the evidence this issue first cropped up in late 2006. The Husband said that E’s glasses were not passed to him during access. In June 2007 it became necessary for the Husband to buy an extra pair of glasses for E’s use during the access. He requested from the Wife a prescription so that both pairs of glasses were identical. He requested both of them to be coordinated on this matter. From the emails exchanged he did not get a response from the Wife. He therefore took E to an optician for test. A stronger prescription was advised.  The Wife responded that the eyesight issue came up last November and the parties had already left the issue for several months. She saw no reason for the Husband suddenly taking up the matter on an urgent basis.

52.It is not in dispute that the parties took E to Polyvision, an eye-sight clinic run by the Hong Kong Polytechnic University to do regular eyesight test every year since E was in kindergarten. The Wife said that the Husband’s taking E to another optician messed up the matter and acted destructively to E’s eye-care. She agreed to let the Husband have the prescription after the test scheduled for 6^th June 2007.

53.The eyesight prescription was later given to the Husband, and at the end of the day the Wife got two pairs of identical glasses. In her email of 12^th June 2007, she said she had asked Polyvision not to release E’s file to the Husband without her consent. She held similar view during cross-examination. She agreed the Husband might get such information but only by asking in writing with letters copies to her.

54.The matter dragged on and re-surfaced again in January 2008. The Wife considered her arrangement with Polyvision restricting E’s eye information a reasonable one.

E’s Homework

55.The Husband complained that when E was with him during access time, she was not allowed to bring along her homework. One example was E’s project about India. It was some time May 2007. The Husband’s view was that if E and he worked together, she could have the benefit of his guidance, support and access to the books, music and other resources he had about India at his home.

56.However, the Wife claimed that E wanted to do her homework by her own. E was working hard on the project and she wanted to do the project independently which she fully supported.

57.This issue re-surfaced again some time October 2007.  The Wife denied that she had the intention to stop E bringing her homework to her father. Her case was that E was self-motivated and always submitted her homework early before Friday. Finishing homework with the Husband’s help during the Husband’s access was not for the benefit of E. In her email dated 10^th October 2007, the Wife had this to say:

“I am not convinced that you are better than me to supervise her study. I have been giving her excellent supervision and guidance regarding her studying in formal education. There is also strong evidence to prove that under my sole supervision, she gives excellent performance at school.

58.The Husband in his reply dated 11^th October 2007 stated that it would be best that E had support from both of them. This homework issue continued to be one of the many disputes between the parties. The Husband queried why E could not do some of her homework with him. The consequence was that E would have 2 days less to do homework than her classmates because E’s homework was submitted before going to him. The answer of the Wife was that she had been supporting E’s homework since E started her schooling in kindergarten at the age of three.

Transfer of Piano Books

59. Towards the end of 2007 they also engaged in argument over transfer of E’s piano books. There was one set of piano books kept in L for E’s practice. E had the piano lesson every Saturday and therefore had to bring over her piano books to school Friday morning because she would go to her father that afternoon for staying access on alternate week basis. The question of E having to carry a heavy school bag Friday morning had arisen. The Husband suggested a number of options including the Wife or her helper taking the books Friday morning or the Wife’s helper taking the books to the Husband’s home on Thursday. The Wife proposed to leave the books on Thursday at the ballet teacher for the Husband to pick up or to buy extra sets for L. The emails revealed that E somehow missed to bring her piano books on some occasions. In the Wife’s email dated 7^th December 2007, the Wife had this to say:

“Demanding E to pack your required piano books on alternate Thursday is a bit unrealistic. However, if you still want to go on with your complicated suggestion, you are welcome to send me a reminder every alternate Wednesday afternoon so I will remind her about your request.”  

60. The Wife later suggested the Husband to call E direct. The Husband accused the Wife of not supporting E. The Wife alleged that the Husband was taking advantage of others to help solve his own problem.

Handover of Passport

61. When the trial was first adjourned in September 2007, the Husband had indicated that he would be taking E to UK that Christmas and had got leave of the Court. By two emails from the Husband to the Wife respectively dated 26^th September and 17^th October 2007, the itinerary was sent to the Wife. By another email dated 13^th October 2007, the Husband requested the travel documents. The Wife responded the next day by asking the Husband to contact her solicitors. The Husband protested because his solicitors needed be involved and thus extra costs incurred. They would be leaving for UK in the early morning on Sunday, 23^rd December 2007 and returning on 3^rd January 2008. Despite such protest, on 2^nd November 2007 the Husband’s solicitors repeated the same request. In the same letter, their address and the telephone number while in UK were provided. They also requested E’s travel documents be delivered on the Saturday 15^th December 2007, i.e. about one week before the departure. It was not in dispute that the documents did not come with E on 15^th nor was there any response from the Wife or her solicitors prior to the 15^th. This matter caused another series of exchange between the parties as well as lawyers. The travel documents were finally delivered to the Husband’s solicitors via the Wife’s solicitors on the 19^th December 2007. In the Wife’s email dated 19^th December 2007, it was the Wife’s position that providing traveling documents three working days before the journey did not cause a problem. In the cross-examination, she admitted she might have overlooked the itinerary sent to her earlier.

62. They also argued on bringing E’s clarinet to England. The Husband requested E to bring her clarinet, accessories and books to England so that she could practice during the holidays. The Wife refused because she did not want to risk losing it for which she had paid deposit to E’s school. She said E’s frequent practice before and after her Christmas trip would compensate her loss in the 2 weeks.

Small Matters

63. Small matters were also subject matters of disputes. One example is this. It was apparent from the Wife’s email to the Husband on Saturday 22^nd December 2007 that he was late to pick up E. He requested to delay the pick-up time to 9:25 am instead of 9:00 am because he missed a ferry. In that email, the Wife complained that the Husband had made this last minute unilateral change which amounted to a failure to comply with Court order. She also expressed that they were not prepared “… to fit your [the Husband’s] messy and disorganized life”.

64. It was also revealed in this email that the Husband did call and requested to talk to E. It was interesting to note that when he first called at about 8:35 am, E was initially not allowed to answer because she was eating and very busily sorting herself out for the access. Eventually upon the Husband’s insistence, E answered the call. The Husband later called the 2^nd time but was told that E was eating and would be calling back. Erica did not answer the 2nd call.

65. It is not in dispute that the Mother would not release to the Husband E’s travel documents including her Home Re-entry permit without an itinerary.  The Husband complained that he even could not make short impromptu trips to Shenzhen with E as these trips were without itinerary. He complained that the Wife chose to be inflexible on this. 

The Vaccination at School for MMR

66. E got Measles, Mumps & Rubella (“MMR”) vaccination at school on Friday, 8^th October 2008. It was not in dispute that the Wife did not inform the Husband of this before injection. The first email was in the morning of 10^th October 2008, a Friday when E was to go to his father after school. It was 2 days after the vaccination. In that email, the Wife alerted the Husband to watch out of any reactions that E might have, such as fever and rash during the access.

67. The Wife considered it a routine because it was part of the vaccination programme for all students in Hong Kong put in place by the health department of the Government. It matters not whether the Husband consents or not. The Husband considered it a health issue and he should be consulted prior to allowing E to receiving such vaccination. At trial, the Husband admitted that he did not know the injection part of the Government vaccination programme for students.

68.   However, he accused the Wife of deliberately excluding E’s health information from him. It was because she took the trouble of going to E’s school to retrieve the immunization record on Friday, 10^th October 2008 in order to ensure the record book not going to him when E went to him that evening. The Wife had an explanation. She did not want the book to get lost. She got it back from the school nurse. She explained that usually after access, many items, such as school homework books, had not been returned. She simply did not want to lose E’s vaccination book.

E

69. E has just turned twelve. She is in her year six in K School. She will begin her secondary school coming September in W School. She is a wonderful child and is presently enjoying good and affection relationship with both parties. She has done excellently in school and has been commented to be gifted and talented. She is now doing the International Baccalaureate curriculum where children are expected to involve in a research-oriented and independent learning. Teachers and parental guidance will be necessary although such guidance will diminish as she progresses to higher forms.

70. During the access she would be staying with his father, Miss P and her son C in Breamar Hill. She has her own room. I accept Miss P’s evidence that E gets on well with her and her son C. I can see from the pictures exhibited by the Husband and SMS messages which E sent to Miss P that the four of them, namely, E, her father, Miss P and C enjoy a very good relationship.

71. Although E feels sad, it is most fortunate of her that she has developed a way of dealing with the marital breakdown of her parents whom she loves. As reported by the psychologist Miss Mok, E told her that switching herself off is one of the strategies to disengage her from the parental disputes. The other ways to stay away from the parental discord reported by Miss Mok are concentrating into her homework and peers relationship.

72. E will be entering into her teenage soon. She will be spending more times with her peers than with any other groups during her adolescence. No doubt peers influence will become increasingly significant. When a child is in her/his teen, rebellious teen behaviours are not uncommon and peers pressure is very often a powerful negative influence. These negative impacts can be neutralized if the child talks to his/her parents and seeks their advice so that any problems can be discovered and tackled at an early stage.

73. E is at present not a troubled child and has displayed no symptoms of being adversely affected by the parental conflicts. However, if the present parental fight continues, given E’s way of avoiding parental conflicts, it is likely that the positive impact of the parties as her parents will soon diminish in the face of increasing peer influence in adolescence. She will be more ready to get emotional supports and advice on important issues from her peers and cliques and be less willing to rely on her parents’ advice for the simple reason that small matters on her are bound to give rise to big issues between her parents. She simply wants to avoid them. That in turn may make her more susceptible to negative peers pressure. This is obviously a risk that these parents should try to avoid.

74. In addition, another potential problem is that as E grows older, she may also learn how to get around parental conflicts by not telling the truth. Miss Mok, the clinical psychologists who had interviewed the parties and E, sounded this alarm. In paragraph 4 of her 2^nd report, she reported that E coped with the parental conflict by “ … obey whichever parent she was with at the moment in order to placate both of them.” This can only be avoided if the parents tried to avoid conflict and cooperate.

The Appropriate Order in This Case 

75. In my judgment, the parties had a long history of cooperation in parenting. As stated above, they agree that the Wife is to take on part-time jobs while the Husband is doing full-time. They have certain values in common and implement them in joint parenting. These include putting E in her own room to train her becoming more independent, avoiding gender stereotype so that she also joined the football class, getting her to bed early and avoiding junk food so that she has a healthy life-style, encouraging reading and therefore E is presently a good reader well ahead of her peers, jointly implementing a bilingual language policy so that E can have benefit of both the East and West and can now speak fluently in Chinese and English, just to name a few. These are good parenting and sensible decisions jointly made by the parties for the benefit of E. I accept that before the breakdown and during E’s holidays, the Husband spent a lot of time with E when the Wife has a heavy teaching schedule on a particular day of the week. Even though when they have difficulties in the marriage and are making allegations and cross-allegations against each other, each of them still sticks to the rules and values they have formerly set for E e.g. in the provisions of junk foods and going to bed early.

76. According to the evidence, the parties could still cooperate in early 2005 and even jointly went to see the Wife’s ex-boyfriend with a view the divorce and the custody could be proceeded with on an undefended manner. At that time, they have already living on separate floors of the matrimonial home. The amendments made by the Wife providing for E remaining “jointly” with the parties reflects the Wife’s willingness to share the care of E. That is what they were contemplating in 2004/early 2005.

77. I accept that some time around March 2005 when the infidelity of the Husband with Miss P was discovered and somehow confirmed, the situation has changed. I agreed with Miss Mok’s hypothesis in paragraph 13 of her 2^nd report dated 24^th August 2007 about the cause of the parental dispute:

“I hypothesize that the betrayal of trust caused by the extra-marital affair has gravely destroyed [ the wife’s] faith in[ the husband].”

78. According to the Wife, she and E were even invited to Miss P’s “freedom party” organized by the Husband to celebrate her becoming single again in early February 2005. Miss P was a former colleague of the Husband and lived also in L, and therefore they knew each other before the Husband had an affair with her. It can be inferred that at this time the Wife still maintained a social relationship with Miss P, and the latter’s relationship with the Husband had, at least, not yet surfaced. However, her husband soon had an affair with Miss P. He even left E alone and stayed with Miss P when he was supposed to take care of E. The sense of repeated betrayal, sense of loss, disappointment, resentment and anxiety about E’s safety triggered off by the Husband’s infidelity are understandable. It appears that the Wife thereafter had a landslide of unpleasant emotions, anger, and even hatred. These emotions were manifested in her encounter with Miss P on 8^th May 2005 at the L pier. Her sentiments against the Husband and Miss P can also be felt in paragraphs 25, 27, 28, 29 of her 1^st Affidavits sworn on 12^th October 2005 in which she raised attacks on Miss P’s personal life, her values and her parenting of her son C.  Strictly speaking, those matters have nothing to do with the Husband’s ability to take care of E.

79. The above perhaps explains why the Wife would like to restrict the Husband’s access to E be carried out in the absence of Miss P. That may also explain why she refused to allow the Husband to have more access to E during the summer in 2005 because the Husband might be taking E and staying with Miss P, whose personal life is regarded “complicated”. However, that does not excuse any parent from cooperating with the other parent for the benefit of their child.

80. In the present case, I do not see why E’s travel documents cannot be handed over to the Husband earlier. I also fail to see why the Husband, who has a history of involvement in E’s upbringing and is as competent as the Wife in ability cannot be allowed to be involved in E’s homework. I believe he is genuinely keen to be involved and not with a view to disturb E’s routines. He is a teacher in a local international school and should be able to give proper and competent guidance to E in her study. E is still in her primary. No matter how independent she may be, I do consider some sort of parental guidance is essential and necessary. Even the Wife admits that she is giving guidance to and supervising E on her homework, as evidence by her emails. There is no evidence showing that the Husband intends to do homework for E. I consider the accusation that the Husband wants to do homework for E unjustified and emotional.

81. The Wife’s intention to be the dominant caregiver of E to the exclusion of the Husband is apparent. If she can assist E to finish her homework, why cannot the Husband do so like her? I fail to see why there is a need to release health information by the health care personnel, such as eyesight prescription, to the Husband subject to her consent. That is not in the interest of E. The fact that a child’s eyesight test having been perfectly arranged with the best opticians in town does not mean that a parent has monopoly to that arrangement and the examination result. The explanation of the Wife retrieving the vaccination record in order to avoid loss, to be frank, is viewed with skepticism by this Court. I also fail to see any good or any ground at all why a father cannot talk to his child simply because that child is eating. It appears to be unreasonable particularly when the call was made so close to the time of picking up and one might expect something unseen happening.

82. I do not doubt the Wife’s ability to solely take care of E. E is regarded as outstanding, gifted and achieved excellent results in all respects among students of her age. Undoubtedly the Wife has done a great job. However, I must say that from the emails exhibited she has downplayed the contributions which the Husband has made towards E’s achievement. The fact that the Husband is unfaithful to her does not means that his parenting ability has disappeared and achievement totally wiped out. It would be in E’s interest to have benefits of both parents. The Wife has made a great contribution and was heavily involved in E’s upbringing but undoubtedly she was not by any means the only caregiver. If these parents were capable of working in harmony in the past and apparently willing to do so, even for a while after the separation, I do not believe that they cannot cooperate now. As far as the Court can see, one major reason for the Wife’s failure to do so is that her feeling of hurt, the grief of being betrayed and anger may lead to actions, perhaps rash, in revenge that might offer some sort of respite from her pain. Further, she may now dislike her ex-husband, who she now considers to be dis-organized in his life and corrupt in value, to be involved with E to the extent that it affects her plan for E. She now does not trust what the Husband has suggested is good for E. However, in my judgment, I do not consider that her switching off from cooperation is because there is a conflict of values so fundamental to a level of incompatibility that is not bridgeable.  I accept Miss Irving’s submission that the Wife is unwilling to cooperate.

83. There is a choice for not having children in a relationship. There is also a choice not to forgive infidelity in that relationship. However, once the parties have elected to have children, there is no choice for them not to cooperate on matters respecting their children. This option is simply not available to them.

84. I have observed each of parties being examined in the witness box for about 4 days. I have read the parties’ affidavits and the bundles of emails exchanged on E. My impression is that the parties are all devoted and loving parents. The Wife is very concerned with the bad effects that the Husband’s relationship with other women and his disorganized lifestyle will have on E. I accept that all these are what a responsible parent should be concerned of. However, I find that the Wife too focused on these matters that she has lost sight of the fact that, though his infidelity has destroyed the parties’ mutual trust, the Husband has also played a positive and very important part in E’s upbringing in the past and is as keen as before to continue co-parenting E with her. Most important of all, he has the ability to do so.

85. In my view, it is not up to the Husband to take E’s matters in his own hand without consulting the Wife. His unilaterally taking E on holidays in October 2005 was obviously wrong. Likewise, it is also not up to the Wife to dictate that her ideas are the best for E. It can be seen that many of her rejections to the Husband’s proposal are coloured with emotion. The fact that she was the main caregiver of E does not mean that she should be the sole custodian parent upon divorce. It is only one of the many considerations.

86. I do not consider that the Husband has any malign intention of interfering with, or disrupting the Wife’s role of managing E’s routines. In the circumstances of this case the Wife must be encouraged to cooperate. An order for joint custody for the purpose of recognizing the Husband’s role in E’s upbringing is required. I do consider that a joint custody order would better reflect the respective roles of the parties in E’s upbringing. It is hoped that with this order in place the parties can be encouraged to overcome their differences and co-operate for the benefit of E in future.

Equal split of Care and Control

87. The latest interim access was put into place on 12^th September 2007 when the trial of E’s custody was adjourned part heard. It provides that for normal school days the Husband is to have staying access to E on alternate weeks basis as follows:

i) Week 1: from Friday after school to Saturday at 8:00 pm; and

ii)  Week 2: from Saturday at 8:00 am to Sunday at 8:00 pm.

88. Now that the Husband requests an equal split of E’s care and control in the following manner:

i) Week 1: from Saturday 4:50 pm to Wednesday morning the following week. E goes to school that morning from the father’s home and then goes back to her mother after school; and

ii)   Week 2: from Sunday 9:20 am to Wednesday morning the following week. Again E goes to school from his father’s home in Breamar Hill and then goes back to her mother in L after school.

89. The Wife proposes the following:

i) week 1: Friday after school to Saturday 8:00 pm;

ii)   week 2: Saturday 8:00 am to Sunday 8:00 pm; and

iii) mid-week visiting access.

90. It is not in dispute that E attends her ballet class every Monday in Central and the class does not finish until 7:30 pm. If E needs to go back to L she has to leave earlier to catch the 7:30 pm ferry so that she can arrive home at around 8:20 pm every Monday. The Husband therefore proposes the aforesaid access arrangement so that E can attend the entire ballet class. Furthermore, the said proposal can achieve an equal split of E’s care and control.

91. I agree that in the circumstances of this particular case the Husband should have generous access to E. However, I do not consider that when a joint custody order is granted, necessarily it follows that care and control should also be shared equally. The guiding principle remains E’s welfare. Although I consider that it is in E’s interest that she should spend more time than she does now with her father, that does not mean E’s time should be split equally between the parties.

92. E has been with her mother for 5 to 6 days a week since the parties separated. I consider it too drastic a change to her if she now only spends half of her time with her mother. As a matter of prudence, it would be better if the increase in access time be done gradually. I think at this age E needs to have a place that she regards as her home and she is no nomad in order to give her a sense of security.

93. Furthermore, the Husband’s proposed access arrangement will deprive the Wife of her activities time with E on Saturday and Sunday, when E takes her break after a busy week in school. By the Husband’s proposal, E can only have half of a Saturday and no Sunday at all with her mum. It is not desirable.

94. In the circumstances of the present case, I consider the Husband’s access to E during E’s term time should be set as follows:

i) Week 1: from Friday after school to Tuesday morning the following week. E goes to her father after school and stays with him during the weekend and Monday in the following week. On Tuesday she goes to school from her father’s home and returns to her mother after school. She will then be staying with her mother for the rest the week; and

ii)   Week 3: from Monday after school to Tuesday morning. E stayed over-night with her dad that Monday after her ballet class. She goes to school from her dad’s home the following morning and returning to her mum after school. The cycle repeats Friday that week.

95. The aforesaid arrangement minimizes extra journeys every week between L and Breamer Hill which E will otherwise takes if the Husband’s proposal is accepted. On the other hand, E can complete her ballet class every Monday without there being a need to rush. Furthermore, E has the opportunity to spend the entire weekend on alternate week basis with each parent who then can make the best use of the weekends with E.

96. I would like to make it clear that this Court only considers it inappropriate for E’s time to be split equally for the time being and is not suggesting that such order is impossible even when E grows older. It all depends on circumstances. I hope the parties can review the access arrangement after all parties have a chance to accustom to the aforesaid timetable and after E has entered secondary this September when she will have an entirely new school schedule. 

Split of Holidays According to Western and Chinese Cultures

97. I do not consider the Husband’s proposal of splitting E’s holidays according to the western and Chinese cultures attractive. While some of the public holidays e.g. Mid-Autumn, Dragon Boat festival etc, are Chinese festivals with rich cultural colours, many of the holidays are in fact either religious in nature (such as the birth of the Buddha, Christmas, Easter) or has nothing to do with culture (e.g. Labour Day, SAR establishment day). One will celebrate Christmas and Easter every year if one is a Christian otherwise these are meant simply holidays. In fact people see these holidays a break from their busy work. They are used as breathing spaces and provide very good opportunities for family and friends getting together.

98. The parties have already agreed on equal split of holidays. The only question is how to split them. The Husband took E to UK during Christmas in 2007 and E was with her mother in Christmas 2008. This alternating arrangement should be maintained. In order not to keep the other parent waiting for too long, I agree E should be with her dad for the two shorter holidays, namely the Chinese Lunar New Year and the Easter following the Christmas. I consider the following arrangement, repeating on a 2-year basis, reasonable:

 

	Holidays	Year 2008/2009	Year 2009/2010
i)	Christmas	With her Mum	With her Dad
ii)	Chinese New Years	With her Dad	With her Mum
iii)	Easter	With her Dad	With her Mum
iv)	Summer Holidays	50-50 split	50-50 split
v)	Autumn Half Term	With her Mum	With her Dad

99. For other public holidays or 1-day school holidays they are to be divided equally between the parties in a manner to be agreed by them, failing agreement each party is to have access to E on these holidays alternately.

The Social Welfare Reports

100. It is fair to say that the Social Welfare Officer Mr. Kwan was of the view that both parents had displayed similar parenting abilities to take care of E.On the other hand her attachment with either parent is close, secure and trustful as both parents are loving and concerning. The reasons why he recommended sole custody to the Wife can be summarized as follows:

i) there has been long-term and deep-rooted communication problem between the parties after the marital breakdown;

ii)   E disliked the frequent transfer between the 2 households;

iii) E expressed a preference to continue living with the Wife and had more activities with her mother; and

iv) to maintain the status quo of E.

101. Concerning the 1^st ground, for the reasons I have elaborated above I do not consider it necessary for me to deal with it again here. The parties should be encouraged to cooperate and they do have the ability to do co-parenting.

102. For the 2^nd ground, it is true that if the Court grants an order with generous access to the Husband E may require taking a larger and heavier bag with her when she attends school on the date of transfer, or making extra journeys between the homes of the two parents. However, the reality of transfer is imposed by the parties on E when they separated. E has no choice. E is presently doing that every week, though with a smaller bag. I understand that each of the parties has hired a domestic helper. Perhaps they may assist if necessary. Further, the parties have already agreed to share E’s long school holidays. I believe that for many items, they have to buy 2 sets anyway for E’s use at the 2 households. As for homework, I believe E will be doing her homework or projects with increasingly use of computer. The softcopy can easily be carried with her in mobile saving device such as a thumb drive or posted to servers to which E can access anywhere through the internet. I do not consider it poses a big problem for E.

103. For the last two grounds, I think my decision on access to the Husband has dealt with the issues raised. There is no perfect solution and at the end of the day it is a balancing exercise. In my judgment, the extra movement and time that E is going to spend with her father will out-weigh the slight disruption to E’s status quo in the long run.     

Conclusion

104. For the above reasons, I now make the following orders:

i) there be joint custody of E to the Husband and Wife with care and control to the Wife and generous access to the Husband;

ii)   the Husband do have access to E during her term time as follows:

a)     Week 1: from Friday after school to Tuesday morning the following week (week 2); and

b)    Week 3: from Monday after school to Tuesday morning the same week. The cycle repeats Friday that week.

iii) the parties are to share E’s school holidays on a 50-50 basis;

iv) for long school holidays, E is to stay with her parents in the following manner and on alternate year basis:

	Holidays	Year 2008/2009	Year 2009/2010
a)	Christmas	With her Mum	With her Dad
b)	Chinese New Years	With her Dad	With her Mum
c)	Easter	With her Dad	With her Mum
d)	Summer Holidays	50-50 split	50-50 split
e)	Autumn Half Term	With her Mum	With her Dad

v)   for other public holidays or 1-day school holidays they are to be divided equally between the parties in a manner to be agreed by the parties, failing agreement each party is to have access to E alternately on these holidays; and

vi) there be no order as to costs and it is an order nisi which will be made absolute if no application is made to vary the same within 14 days.

105. I hope that this order for joint custody with generous access to the Husband will not be seen by the Wife as a defeat and by the Husband as victory. I very much hope that in future, the parties will be able to cooperate with each other for the best interest of E.

106. Finally, I would like to express my gratitude to both counsel for their able submissions and the assistance that they have rendered to this Court.