Bl v. Sjy

FCMC 7831 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 7831 OF 2008

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

BETWEEN

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

Coram: Her Honour Judge Sharon D Melloy in Chambers (Not Open to Public)

Dates of Hearing: 17 and 18 November 2009

Date of written closing submissions: 27 November 2009

Date of oral closings: 16 December 2009

Date of Judgment: 19 January 2010

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

J U D G M E N T

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

Introduction

1.There are a number of applications before me concerning the arrangements for the only child of the family – a little girl who I will call S, who was born on the XX August 2007. She is now almost 2½ years old. The father appears to be seeking either joint custody and shared care; or sole custody and care and control or in the alternative sole custody to the mother and joint care and control. To put it at its simplest he wishes to be fully involved in all areas of his daughter’s growth and development. The Petitioner mother seeks sole custody and care and control with defined access to the father. She also seeks general leave to remove S out of the jurisdiction twice a year in order to visit Beijing for one month on each occasion.

Background

2.On the 4 July 2008 the mother issued a divorce petition based on the father’s unreasonable behaviour. The parties have been in and out of court on a regular basis since, seemingly finding it impossible to agree on almost anything. The mother is originally from Beijing and the father is an American national. On the 17 November 2008 the father issued a summons for interim custody/care and control and/or reasonable access. On the 22 November 2008 I handed down my first ruling in relation to maintenance pending suit/interim maintenance for the mother and S. The father was ordered to pay the mother HK$3,000 per month for S. The mother had recently resumed working at that stage. On the same day I made an order for interim defined access as follows:

2.  The Respondent do have interim defined access to the child of the family S, (i) on each and every Saturday from 9:00 a.m. to 1:p.m. commencing on 22^nd November 2008 and (ii) on each and every Tuesday and Thursday from 8:00 a.m. to 12:p.m.;

3.Pick up and drop off of the child to be at Kowloon Bay MTR Station. Other access to be by agreement between the parties;

4.There shall be a Supervision Order in relations to these arrangements until final determination of the matter.

3.  This order has largely governed arrangements for S since. Unfortunately however, that has not lessened the level of conflict between the parties – which has, at times, been intense. The mother accuses the father of being violent, of being a sex addict and of being controlling. The father accuses the mother, amongst other things of being manipulative and of being unsupportive of him in his role as a father. The police were called to the matrimonial home on a number of occasions prior to the mother seeking refuge in a centre for abused women. She now lives in rented accommodation. She is not working. She previously assisted the father in his pottery business. It seems that he is now concentrating on working as a paragliding instructor. He also imports paragliding material into Hong Kong.

4.  On the 20 February 2009 the matter came before me again. On that occasion the wife sought an increase of maintenance on the basis that she had recently been made unemployed. I made an order that the husband pay the wife maintenance pending suit for herself in the sum of HK$15,000 per month and that he continue to pay HK$3,000 per month for S. Further applications have been made to vary maintenance and the wife has also issued a judgment summons.

5.On the 12 March 2009 the wife sought leave to remove S temporarily out of Hong Kong in order to visit her parents and other relatives in Beijing. She wished to leave for a month. The husband vigorously opposed the wife’s application. On the 27 March 2009 the husband issued an affirmation in which he complained inter alia of “abuse of parental visitation rights”, “rejection of petitioner request to remove daughter from HK” and “Request of extension of parent access time”. Another affirmation was filed on the 31 March 2009 seeking to be heard on “education” and asking to change the start time of the access. On the 15 April I gave leave for the wife to take S to Beijing from the 9 May to the 6 June 2009. I also varied the original order on access as follows:

2.  Paragraph 3 of the Court order dated the 22^nd November 2008 be varied to the extent that the Respondent do have interim defined access on each and every Saturday from 9:00 a.m. to 5:00 p.m. commencing on the 18^th April 2009 and on each and every Tuesday and Thursday from 8:30 a.m. – 1:00 p.m., other than during the holiday in Beijing.

3.  The Respondent shall have telephone access / skype access to S whilst she is in Beijing everyday between 8:00 a.m. and 9:00 a.m.

6.On the 8 May 2009 the husband seemingly in support of an injunction in relation to that order filed a further affirmation. That application was adjourned to be heard with the parties respective applications for custody.

7.On the 16 December 2009 the wife issued a further application to remove S out of the jurisdiction in order to visit her relatives in Beijing over Chinese New Year. I will deal with this application also in this judgment.

8.In addition to the ongoing dispute over S and money, the parties were also unable to agree on the divorce itself. Although some attempt was made to settle the issue of the divorce in a constructive and sensible way, ultimately these attempts fell apart and the matter came before me again for adjudication in July. On the 31 July 2009 I handed down a judgment in which I granted the wife a decree nisi of divorce based on the husband’s unreasonable behaviour. The husband’s cross petition was dismissed. This is then where the matter stood at the time of the trial.

The issues

9.It seems to me that the following issues now fall to be determined by this court:

Should custody and care and control of S vest in the sole name of the mother or in the sole name of the father? Or should the parties have joint custody of S?

Once the above has been determined, what orders should be made for access? How should those arrangements be defined if at all?

Each parties case

The wife’s case

10.The wife seeks sole custody and care and control of S. She complains that she cannot communicate with the husband in any shape or form. She relies on her affirmations as evidence of what has happened in the past. She complains of violent behaviour – especially once she discovered that the husband was being unfaithful. At present she is assisted by her parents, who take it in turns to come to Hong Kong to help her look after S. She is not working at present. She intends to send S to Kindergarten probably after CNY. She will then be 2 ½ years old. She wishes her to go to all day school. When asked for her practical proposals going forward she said in her closing as follows:

1.  As S will be in school shortly, she will need to have her home work done, go thru different tests, sign up some classes besides the school hours to build up her own hobby / interest therefore we will need to work our schedule around based on hers.

2.  Considering the Respondent doesn’t have a proved record of raising our child alone, his careless has caused our dear Pilot died in vain [the family dog]; his careless has made S suffering on her body; emotionally he could let S crying for almost an hour just because she wanted to get to her mother, I would like to propose the access as follows:

-  No staying access.

-  One full day access either Saturday or Sunday can be flexible.

-  S is a human being, it’s hard to divide a little girl into 2 parts especially she will have her own schedule of doing things.  Therefore I suggest to leave the public holiday open depending on S’s schedule.  Will try to make room for her father during western holidays, such as Easter & X’mas.

-  School holiday: Will make full day access available to her father during the weekday, depends on her activity schedule & travel plans.  I prefer leave it flexible.

In view of the above, I pray to Your Honor that,

-  I shall be granted the sole custody of the family child S.

-  I shall be allowed take S out of Hong Kong twice a year, about 30 days each trip without asking for permission again & again.

-  The Respondent shall be ordered return back S’s American Birth Certificate as well as her American Social Security Card to the mother / Petitioner.

The husband’s case

11.The husband maintains that he is equally capable of caring for S on a fulltime basis. He has made a number of allegations about the wife’s ability to look after S and her approach to childcare. When asked for his practical proposals going forward he said as follows:

Custody proposal

Custody: Joint physical with shared legal custody & equal shared time.

Sole – father, respondent, as above without shared legal custody.

Sole – mother, petitioner, as above with shared legal custody to father.

Objective – to be involved in all areas of growth, development of daughter provide a good, suitable, clean home w/care, understanding & love.

to provide & maintain good education.

Phase 1 of education, daughter should only be enrolled in to kindergarten, morning session

to establish and maintain good health care program.

to foster & insure child maintains a good relationship with mother.

to insure daughter is never left alone or unattended to.

to be flexible w/mother in all areas related to the best interest of child.

Conditions: each and every aspect related to child must be shared unless one parent shows to be unwilling to resolve issues.

The Law in Hong Kong

12.The law governing applications concerning children in Hong Kong can be found at s. 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 where it is stated that the court has the power to make such order as it thinks fit for the education and custody of children under the age of 18 years.

13.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which refers to the welfare of the child as being the first and paramount consideration of the court.

14.In addition there is a checklist recommended by the Law Reform Commission, which many Judges, myself included, have found useful when determining issues relating to children. For ease of reference I have reproduced that checklist below. I will not refer to this checklist in its entirety when considering the issues, but I will refer to those sections which seem to me to be of particular relevance when considering the matter overall.

Checklist

15.

(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 sex, 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.”

Joint Custody v Sole Custody

The Law in Hong Kong

16.Given that the parties are litigants in person, I have reproduced an excerpt below from the recent case SEB v ZX (Custody) [2007] HKFLR 165 where I referred to the current law in Hong Kong at that time on joint versus sole custody:

Joint custody means that 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. The report [Law Reform Commission report] describes it thus

“2.32  Joint custody is where the court grants custody to both parents, although physical care and control is usually granted to only one of them.  L explains 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 parties are given that right.  ‘Such order symbolizes divorced or separated parents playing a joint role in the upbringing of the child and neither is excluded’”.

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.

17.In that case sole custody was awarded to the Father with shared care to both parents. I picked up this theme again in MJP v JWP FCMC 9154 of 2008 dated 16 December 2009. In that case I referred to a recent Court of Appeal decision in Hong Kong where an order for joint custody was replaced with an order for sole custody.

18.Rogers VP made the following points:

24.  The important point, nevertheless, is whether given the existence of the lack of co-operation between the parties it would be right to order there be joint custody.  The basis upon which the judge so ordered appears to have been what has been referred to as aspirational.  In other words it was an order made so as to encourage the parties to co-operate.  In my view that is more a matter of wishful thinking than a matter of practical reality.  …

26.  Given the current relationship between the parties it appears to me that the only order which could be made as to custody is that one or other of the parents should have sole custody.  In this case, clearly it is the petitioner who should have custody of E.  As Mr Recorder Yuen pointed out, that does not mean that all major decisions would be made by the petitioner.  If no agreement could be reached about a major decision in respect of E then, no doubt, resort can be had to the court.  In respect of other matters, which would not be regarded as major matters, those decisions would no doubt be made by the parent having custody.  In so far as the respondent would not have control in respect of such lesser, day-to-day, matters, that is an inevitable consequence of a sole custody order with care and control.

19.I should also add that in MJP v JWP FCMC 9154 of 2008 reference was also made to recent research on joint parenting which for ease of reference I also reproduce again here, given the father’s request for shared time.

Research evidence now provides some very clear indicators of what parents can do that will best support positive outcomes for children after separation or divorce. The overwhelming message from studies around the world is that relationships with both parents do matter but it is the quality of relationships that parent maintain with children and with each other that are important, not the quantity or frequency of contact (P Amato and J Gilbreth, ‘Non resident fathers and children’s well being: a mela analysis’ [1999] Journal of Marriage and the Family 557). Put simply, it is what parents do with children, and their ability to focus on the child’s needs that counts, not how much time parents have with children. Expressed in psychological terms, Whiteside and Becker underscore the importance of relationship quality not the clock, noting that:

‘Neither the shape of the care-giving network nor the time-sharing schedule has the most potent effects on children’s development.  Rather, the quality of the parental alliance and the parents’ warmth, sensitively, good adjustment, and discipline style make the difference between a well-adjusted child and one who is angry, scared, or limited in cognitive and social skills.’  (M Whiteside and B Becker, ‘Parental factors and the young child’s post divorce adjustment: a meta-analysis’ [2000] Journal of Family Psychology 23.

There is now a small but growing body of research specifically on the outcomes of shared care or 50/50 arrangements.  Perhaps not surprisingly, if appears again to be the quality of relationships – between parents and between parents and children – that influences whether the arrangements work for children or not.  Two studies have reported that substantially shared or 50/50 arrangements can work well for children but where relationships are already good.  In Australia one major study found that the key ingredients of successful shared care were flexible and child-centred parents who were able to co-operate and, critically, where both parents had opted for shared care rather than having it imposed by a court (B Smyth: http://www.aifs.gov.au/institute/pubs/resreport9/main.html, 2004 last accessed 3 August, 2009).  A similar message emerges from a study based on interviews with British children (C Smart, B Neale and A Wade, The Changing Experience of Childhood (Polity Press, 2001).  This research found that children were positive about shared care again where arrangements were flexible and child-centred and where children’s views were heard.

Shared care, therefore, is one form of arrangement which can work for children.  The great challenge, however, is that parental cooperation – are typically absent in litigated or high conflict cases.  Indeed, studies of 50/50 shared care report poorer outcomes for children in such cases (J McIntosh and R Chisholm ‘Shared care and children’s best interests in conflicted separation’ [2008] Australian Family Lawyer 1).  In two recent Australian studies, McIntosh found a link between high levels of emotional distress in children, substantially shared care and ongoing parental conflict and acrimony.  In a follow up study McIntosh found that sharing care in this population did not help to reduce parental conflict (J McIntosh, Legislating for Shared Parenting’ [2009] Family Court Review 389).  Instead continuously shared care parents remained locked in conflict 4 years after the initial intervention when conflict had reduced in other arrangements.  McIntosh also found that while fathers were satisfied with arrangements nearly half of children wanted to change from shared care.  This is similar to the British children in Smart’s study cited above who were unhappy in inflexible arrangements where parents were hostile to each and where children had no influence about how their time was ‘parcelled out’.

The evidence base on shared care is small but the findings of these studies are consistent both with one other and with the wider literature on the importance of relationship quality not quantity.  The message is that good relationships with both parents can help children thrive where arrangements are child-centred, flexible and co-operative.  However, the story is different where parents are locked in conflict.  There are no robust research studies that find that children benefit or litigating precisely the opposite, with research finding poorer outcomes for these children.  There is also some evidence that shared care arrangements are much less durable than other arrangements in high conflict families (J McIntosh, ‘Legislating for Shared Parenting’ [2009] Family Court Review 389).

[September 2009 issue of Family Law, vol. 39 p. 831 entitled Shared Parenting: The Law, The Evidence and Guidance From Families Need fathers by Joan Hunt, Judith Masson and Liz Trinder]

Discussion

20.I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing. In addition I heard from the mother’s parents. Two social workers also attended court to give evidence, Mr L and Mrs M.

Should custody and care and control of S vest in the sole name of the mother or in the sole name of the father? Or should the parties have joint custody of S?

The child’s physical, emotional and educational needs

21.Both parties made complaints against the other in relation each side’s ability to take care of S. On occasion the conflicts between the parties have led to Police intervention. Although S is young, she has been present during some of these conflicts and has been witness to them. Clearly this cannot be in S’s best interests.

22.Having seen the parties in the witness box I am satisfied that in the words of the Mrs M’s Social Investigation report of the 9 November 2009:

In this case, the parents are unable to relate rationally during the divorcing period though both of them are caring parents. Despite complaints between the couple over their respective behaviour over child care issues and access arrangement, I do not think this separated couple will deliberately do anything harmful to the nourishing development of their dearest daughter. While it is difficult to comment on their views on child care approach which is one of the conflicts between the couple, it is also evident that the core of the present access problem lies in their lack of faith and trust towards each other for their respective unresolved painful feelings arising from their past unhappy experiences.

23.I accept that the child’s physical, emotional and educational needs are generally provided by each of the parents, when she is with each of them. I am also of the view that she may have been affected by the intense level of conflict between the parents and that this may be more of a risk going forward unless the parents are able to manage their conflict in a more appropriate way.

Childcare plan/Status Quo

24.The Father proposes that S spend 50% of her time with him. Although there is some confusion over the terminology used, he seems to be seeking either joint or sole custody. He is presently working from home and says that he would be able to care for S, notwithstanding the fact that he is required to work. He presently has a part time domestic helper. He says that he has proved that he is a capable parent and that he wishes to continue to parent her. He has on occasion said that he would hire a domestic helper to assist. He wishes S to attend an International Kindergarten such as G Preschool and Playgroup in Clear Water Bay and to attend half day school.

25.The Mother proposes that the present situation continue – i.e. that S continue to live with her. Her parents presently assist her to care for S. She says that S is happy and settled and that there is no reason to alter the status quo. She wishes S to attend a local kindergarten and to start whole day school. In that event the present access arrangements with the Father would need to be altered.

26.Although both childcare plans have been well thought out I tend to agree with the social welfare officer, Ms M when she recommends that

The present enquiry revealed that both the Petitioner and Respondent are keen on having the child’s custody. For the child of this age, S is in need of security, routine and structure in her everyday life. Having undergone considerable changes and readjustment following the parents’ separation, she needs a secured and stable living environment for a healthy development. Madam B has been providing proper care to the child since the spousal conflict on 1.11.2008. She has also demonstrated her ability in taking up the childcare responsibilities with strong social support and constant assistance from her parents. On the other hand, Mr Y is sincere in keeping an intimate relationship with his daughter and shouldering parental responsibilities through the pursuit of custody. During the past year, Mr Y is trying his best to build up the relationship with the child by paying regular visitations, which can maintain bondage and is considered to be beneficial to the child’s development. There is no doubt about his love toward the child as a father. However, it appears that any change of the caring hand at this stage will require the child’s immediate adjustment which will likely tilt the balance, not to mention that the father’s caring ability has yet to be tested. There being the situation, the chance that Madam B and her daughter maintaining a normal and stable life should be high if the custody of the child is granted to the mother who will receive full support from her parents as well.

I agree with that analysis of the situation. I should add that although the social welfare reports are not binding on the court, reasons do have to be given in the event that the court decides to depart from the recommendations made. In this instance I have in the main accepted the recommendations proposed. In the first report the SWO recommended that a further report be compiled as the mother had just moved out of the matrimonial home. He recommended reasonable access to the father. He later recommended custody to the mother and reasonable access to the father. He suggested that a supervision order be put in place. In the witness box he said that he was of the view that a supervision order was no longer necessary. The second social welfare officer recommended custody to the mother and all day access to the father on either Saturday or Sunday.

The nature of the relationship of the child with each of the child’s parents and other persons

27.I accept that S has a close relationship with her mother and her maternal grandparents who are helping to raise her. She also has a close relationship with her father and it is important that that continue to be nurtured.

Any family violence involving the child or a member of the child’s family

28.This is a high conflict case. It is imperative going forward that S is shielded, as far as possible from any conflict between her parents. Much of the conflict appears to occur during handover times. Thus it seems to me that the parties should consider ways of minimizing their conflict by arranging, for example, for a third party to hand the child over to the other parent.

Conclusion

29.Given the findings made above it seems to me appropriate in all the circumstances of this case for sole custody of S to vest in the mother. In making this order I am mindful of the final recommendation made by Ms M

In view of the above, I would like to recommend for the Court’s consideration, that the custody of the child, namely S be granted to the Petitioner, Madam B, with the present defined visiting access to be granted to the Respondent, Mr Y and the visiting access to be changed to a whole day session from 9:00 a.m. to 5:00 p.m. on either Saturday or Sunday if and when Sabrina receives education.

Once the above has been determined, what order should be made for access? How should those arrangements be defined?

30.Although I accept Ms M’s recommendation on custody I have some concerns about her recommendation on access. S has had regular and frequent access with the Father, with whom she appears to have bonded. At present she sees him three times per week. It seems to me that it is imperative that she continues to see her father regularly. I can see no reason why she should not continue to see him at least twice per week, notwithstanding kindergarten and for the father to begin to have staying access with her. In time I would expect S to spend half of all of the school holidays with her father. I will not make that order now. Staying access will be introduced. S will continue to see her father frequently. Given the high level of animosity between the parties it seems to me to be imperative that access is clearly defined, so that each party is aware of their obligations and their need to clearly abide by them. I will not, for the time being, give either party general leave to remove S from the jurisdiction of Hong Kong.

Costs

31.Given the nature of this dispute there shall be no order as to costs.

32.Consequently I will make an order as follows:

1) Sole custody and care and control of the child of the family namely YSJ, a girl born on the XX August 2007 be to the mother with defined access to the father as follows:

a. Staying access on the first weekend of every month from 9:00 am on Saturday until 5:00 pm on Sunday.

b. Otherwise access every weekend all day on Saturday from 9:00 am – 5:00 pm.

c. Access shall continue from 8:30 am – 1:00 pm on Tuesday and Thursday’s until S starts kindergarten. Thereafter access shall be on Wednesday afternoons after school until 7:00 pm.

d. Access on single public holidays to be alternated commencing on the 21 May 2010 when the Father shall have access from 9:00 am – 5:00 pm.

2) Leave is given to the Mother to remove S from the jurisdiction of Hong Kong for the Chinese Lunar New Year holiday from the 24 January – 22 February 2010 inclusive subject to her undertaking dated the 16 December 2009 to return S to the jurisdiction of Hong Kong when called upon to do so. Access set out above shall be suspended whilst the mother and S are in Beijing.

3) The Father shall have telephone access/skype access to S every day whilst she is in Beijing between 8:00 am – 9:00 am.

4) The Father shall have staying access to S over the Easter holidays from 9:00 am on the 2 April to 5:00 pm on the 6 April 2010.

5) Other access by agreement between the parties.

6) A progress report to be called for in 9 months time.

7) There shall be no order as to costs.

The Petitioner and the Respondent both appeared in person