Trr v. Rar
Read the full judgment text of FCMC 8382/2008 on BabelCite. This Family Court judgment was delivered on 16 March 2010 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Custody – Joint Custody vs Sole Custody – Best Interests of the Child – Guardianship of Minors Ordinance – Matrimonial Proceedings and Property Ordinance – Social Welfare Report – Different Jurisdictions – Costs – Joint custody ordered with care and control to mother and reasonable access to father – No order as to costs
Legal issues: Joint Custody v Sole Custody · Costs
Outcome: Joint custody ordered with care and control to the Respondent and reasonable access to the Petitioner. No order as to costs.
Cites 2 cases
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FCMC 8382 / 2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 8382 OF 2008 ----------------------
---------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Date of Hearing: 3 March 2010 Date of written closing submissions: 12 March 2010 Date of Judgment: 16 March 2010 ---------------------- J U D G M E N T ---------------------- Introduction 1.This is an application by a Petitioner father for joint custody of the two children of the family, a girl, S, who is 14 years of age and a boy, J, who is 12. The Mother seeks sole custody. 2.Although custody is in dispute, the day-to-day arrangements for the children are agreed. It is agreed that the children will continue to reside with their mother, who is presently based in Beijing. The father will continue to have generous access to them. This is then, primarily, a dispute over principle. Background 3.The parties married on the XX October 1995, in London, UK. The father worked in the travel industry. Consequently the parties lived overseas and had a number of diverse overseas postings. Their last port of call was Beijing. The father is British and the mother is a Dutch passport holder. She was born in Suriname in South America and is of Caribbean descent. The children were both born in Holland. 4.Unfortunately the father is presently unemployed, having lost his job in February of last year. He is actively seeking employment at present. The mother is also not working, although she has worked in the more recent past in the interior design field. Consequently the parties are presently living on their savings. This is of some concern to the father. The mother says that she intends to remain in Beijing for the time being as the children are settled there. The father has based himself in Hong Kong for the time being as it is easier to obtain a visa in Hong Kong. The mother has obtained her own visa from Beijing and is no longer dependent on the father in this respect. 5.On the 17 July 2008 the father issued a divorce petition based on two years separation. He states that the parties had lived separately and apart since XX July 2006. The decree nisi was pronounced on the 11 February 2009. 6.The matter first came before me in January 2009. There is an interim order in place in relation to the finances dated the 25 February 2009. The mother was initially unrepresented. She has since been granted legal aid. In contrast the father was originally represented. He now represents himself. Presumably given his employment status he can no longer afford legal representation. The matter was initially set down for an FDR hearing. The mother refused to participate in this, notwithstanding the fact that she was legally represented at the time, making any meaningful negotiation virtually impossible. Consequently I was not able to give any indication to the parties concerning their ancillary relief. It is fair to say that the mother seemed emotionally overwrought at that hearing and effectively walked out. It then became clear that there was a dispute over custody. It is that matter that now falls to be determined. The issue of finances still needs to be resolved. The issue 7.Should custody of the two children of the family vest in the sole name of the mother or should the parties have joint custody of them? Each parties case The husband’s case 8.The father maintains that the parties have effectively been joint custodians of the children in any event and that to change the status quo and what he terms the “default position” would be damaging to them. He refers to joint custody as being the “normal” order. He says in his opening that:
The wife’s case 9.The wife seeks sole custody of the children. Her affidavit in support of her application is very short. She puts her position thus:
The Law in Hong Kong 10.As I explained to the parties, the law on children continues to be a developing part of the law in Hong Kong. The umbrella provision governing applications concerning children, 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. 11.The general principles governing such applications are set out in s. 3 of the Guardianship of Minors Ordinance, Cap. 13, which states that the welfare of the child is the first and paramount consideration of the court. 12.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 issue, but I will refer to those sections which seem to me to be of particular relevance when considering the matter overall. Checklist 13.(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
Joint Custody v Sole Custody The Law in Hong Kong 14.Given that the father is acting in person, I have reproduced an excerpt below from the case SEB v ZX (Custody) HKFLR, which both parties have referred me to, where I set out the law in Hong Kong on joint and sole custody. The mother’s solicitor has referred me to this case. The father also seemed to have a full grasp of the relevant principles. 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
15.In that case sole custody was awarded to the Father with shared care to both parents. I referred to the issue of so-called aspirational orders 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. The Hon Mr Justice Rogers did so in part because of the lack of co-operation between the parties. That is not the case here. 16.It has also been argued that joint custody is not appropriate where the parties are living or intend to live in different jurisdictions. I referred to this in MJP v JWP FCMC 9154/2008 (presently unreported). In that instance, mother wished to live in the UK and the father intended to continue to reside in HK.
17.The father has said that joint custody is the normal or usual order in our courts. I do not agree. Rightly or wrongly it is one option open to both parents. It is fair to say though that the Law Reform Commission report on Child Custody and Access dated March 2005 challenges this. The report made the following observations:
Unfortunately the Law Reform Commissions recommendations have still to be acted upon. Discussion 18.I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing. In addition I heard from the social welfare officer who prepared the international social investigation report, a Mr L. Should custody of the two children of the family vest in the sole name of the mother or should the parties have joint custody of them? (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); 19.Both of the children are old enough for their own views to carry considerable weight. The only medium available to the court for this is the International Social Investigation Report. From this is seems that both children are comfortable with the current arrangements. The younger child, the son, would like to see more of his father. The children’s physical, emotional and educational needs 20.It seems that these are being met at present by both of the parties. The mother caters for more of their day-to-day needs, as she is the caretaking parent. They attend the British school in Beijing. The mother would like them to continue to do so as she says that the boy, J, has been adversely affected in the past by the parties’ nomadic lifestyle. She seemed a little confused but said that she would like both children to stay until they had finished their GCSE’s, which she thought would be in two years time. In fact that is probably when the daughter, S would finish her GCSE’s. (b) the nature of the relationship of the child with each of the child’s parents and with other persons; 21.The father says that he has a good relationship with the children. I accept that to be the case. I also accept that is unlikely to be the same as that of the children’s relationship with their mother. (c) The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant; 22.Much was made of the fact that the children are of mixed race parentage and that they hold dual nationality. (d) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents 23.Both parents expressed appropriate concern about the children’s education going forward. The father was worried about the financial feasibility of the mother continuing to reside in Beijing with the children. He described it as “financially a catastrophe”. He said that it was not sustainable. He had clearly though thought about the alternatives in a sensible and logical way, one of which was the possibility of the children being educated in the UK. He said that given that the children were of dual nationality that he would like them to finish off their education in the UK in any event as he thought that would be a good preparation for tertiary education. Likewise the mother’s reasons for wishing to stay in Beijing were understandable – she wished to provide the children with some stability, at least in the short term. She seemed to be relying on the father being able to find alternative employment in the not too distant future. In the final analysis she was willing to relocate back to Holland. (e) Any family violence involving the child or a member of the child’s family; 24.This was not an aspect that was dealt with in the parties’ affidavits. However it became clear, once the parties were in the witness box, that their break up had been a difficult one. The father had had an affair. The mother said that the father initially disappeared for three months. She admitted to throwing a brick through his car window on one occasion and of scratching his face on others, to the extent that he was unable to go to work. It was clear that the mother felt that she was justified in taking this course of action. She also admitted to administering what she described as mild corporal punishment on the children and said that this was normal in Suriname. On one occasion she said that she had “smacked” the son and that he had fallen on the ground. She said that the son had been “play acting” and was clearly angry with the father for “giving her hell” about it. The mother’s attitude is of very real concern. She was clearly angry that the father had not revealed his address to her and queried the feasibility of joint custody in such a scenario. The husband’s explanation was reasonable however. I accept that he took this course of action for all the right reasons. He did not wish there to be any further incidences. He had been concerned. I accept that the concern was genuine. Going forward he is willing to undertake to provide his residential address to the wife. This seems to be a sensible compromise and is a solution to the impasse that has developed. (f) 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; 25.I accept that the mother is capable of meeting the children’s day-to-day needs. I also accept, having seen the father in the witness box, that he is likewise capable of meeting the children’s needs. The wife complains that the father is not as involved in the children’s day-to-day experience as she would like. For example, that the son needs help with his English studies, help that she is not able to provide. I would encourage the father to become more involved in the day to day, especially in so far as homework is concerned. (g) Any other fact or circumstance that the court thinks is relevant.” Urgent matters 26.The mother argues that given that neither side knows with any certainty precisely where they will be based going forward that it is not feasible to have joint custody. She is particularly concerned that she may not be able to locate the father quickly enough in the event of an emergency. The father countered this by saying that he would be willing to sign a general waiver so that in the unfortunate event that either child was involved in an accident that it would be possible for the mother to ensure that she was able to take whatever action was appropriate in the circumstances including any emergency medical procedures. I agree that this should be sufficient to allay the mother’s concerns in this respect. Schooling 27.It seems that there was some confusion about the level of communication between the father and the school. He had been involved in some of the major decisions concerning the children’s schooling – in particular both sides described a situation where it was ultimately decided that J, should be kept down a year. Both parents were involved in that decision making process. The mother still believes that the decision to keep him down a year was wrong; notwithstanding the fact that by all accounts he is now thriving academically the father would like to be directly in contact with the school. The mother was not opposed to that. In the past she had asked the school to contact her as opposed to the father. This followed an occasion when the school had called the father to seek his advice, when she felt that given that the children were living with her that it would be more appropriate for the school to contact her in the first instance. Going forward I would expect both parents to receive all appropriate notices from the school, together with school reports etc. Communication 28.The mother says that it is difficult to communicate with the father at times. She says that his phone is not always on. However she acknowledged that she always involved the father in any decision making process about the children and that that would continue. The father acknowledges that aspects of the parties’ relationship continue to be problematic but that the two of them are able to put the children first and to communicate about them. It is only right and proper that this should be encouraged and that it should continue. I must say though that I was concerned when the wife admitted to recently inviting the father to her home in Beijing to discuss matters and to then “locking him in” when an argument ensued. The social welfare officer recommended that the parties consider ways of improving their communication. I agree. I would suggest that the parties consider taking a parenting course – possibly an on line parenting course, with a view to improving the way in which they communicate with each other about the children going forward. Hong Kong Jurisdiction 29.The mother is concerned that the parties will need to come back to Hong Kong in the event that there is any disagreement between them about the children, which needs to be resolved by the courts. She advances this as an argument against joint custody. I do not agree. The divorce proceedings have taken place in Hong Kong. No issue has been taken with respect to jurisdiction. Although the parties may need to come back to Hong Kong if there is a further issue concerning the children, that will be the case whether there is an order for joint or sole custody. Infact the mother seems to acknowledge this in paragraph 11 of her affidavit set out above. 30.In many other countries there is already a concept of joint parental responsibility in place. The wife says that that is not the case in Holland. No expert evidence was produced in respect of the wife’s assertions about that. Consequently I cannot take that matter any further. Convenience 31.The mother also argued that as the parent with care and control that it would be more convenient for her to have sole custody of the children. Although that might be so, I do not accept that convenience of itself is a valid reason for sole custody to be awarded to the mother over joint custody to both parents. The Recommendations made in the Social Welfare Report 32.Recommendations made to the court in social welfare reports, although not binding are persuasive. If the court decides not to follow the recommendations made then reasons must be given. In this case the International Social Welfare officer, Mr L recommends joint custody as follows:
I accept his recommendation. Conclusion 33.In the circumstances it seems to me that this is an appropriate case for me to exercise my discretion in favour of a joint custody order, subject to the father’s undertakings as set out above. Costs 34.Given the nature of this dispute I think it is accepted by both sides that there should be no order as to costs (see London Borough of Suttons v Davis (Costs) No. 2 [1994] 2 FLR 569). 35.Consequently I will make an order as follows:
The Petitioner appeared in person Ms. E. Ho of Messrs Chaine Chow & Barbara Hung for the Respondent |
Cases cited in this judgment