Ckm Formerly Known As Chy v. Skl

FCMP 67 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 67 of 2011

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

Dates of Hearing: 27 – 29 March 2012

Written closing arguments submitted: 12 April 2012

Written closing replies: 19 April 2012

Date of Ruling: 27 April 2012

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RULING
(Access)

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Introduction

1.I have today also handed down a judgment in relation to the financial provision for A. This Ruling is concerned with a number of outstanding issues with respect to access. The background to the relationship and the ensuing litigation is set out in the accompanying judgement. I do not intend to repeat the same here. Suffice it to say that this Ruling is concerned with the access arrangements for the child of the relationship, A, who is 28 months old. The parties have agreed that there should be joint custody of A, with care and control to the Applicant mother and reasonable access to the father. There now appears to be disagreement over a number of broad areas which seem to me to be as follows:

a) How often should A to go to Shenzhen to see his paternal Grandmother, if at all?

b) Should the mother’s maid accompany A on all access visits including those to Shenzhen?

c) Should the mother in the alternative accompany A on access visits to Shenzhen?

d) Who should be responsible for A’s travel documents and

e) How should issue of staying access be approached?

2.The parties have each submitted written proposals with respect to these outstanding issues.

The law in Hong Kong

3.As stated in the judgment accompanying this Ruling the general principles governing applications relating to children’s issues are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13. I will not repeat that section here. Reference can be made to it in the accompanying judgment if deemed necessary.

4.In so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words the child has the right to see and to have a relationship with both of his parents. The court is primarily concerned with the welfare of A and not the relative rights of each of the adults with respect to him. This provision does not extend to grandparents although it is generally accepted that children do likewise have the right to see and to have a relationship with their extended family, including grandparents.        

The Recommendations made in the Social Welfare Report

5.The social welfare report recommends joint custody with care and control to the mother and day access once or twice per week to the father. Commenting on the relationship between A and each of his parents the social welfare officer observed as follows:

Relationship between the Child-in-question and his parents

The investigator observed the relationship between Ms. C and A at home. As seen by the investigator, there were many toys in the living room. When A played the toys or moved around in the living room to play, he would, after all, return to Ms. C from time to time. It showed that he is extremely dependence on his mother. Although he is active and energetic, he is able to listen and follow his mother’s instruction, for instance, packing up the toys on the floor. When he got tired after playing, he would return to his mother’s arms and let her embrace him. There, he was seen to be quiet and satisfied.

The investigator also met Mr. S and A in Mr. S’s home and observed the relationship between the father and son. Although A did not take the initiative to approach his father, he was beaming when his father carried him and kissed him. Later, when Mr. S and the domestic helper took A to the playroom and gymnastic room of the residence clubhouse to play, A appeared to be excited when Mr. S carried him and put him on different types of equipment.

Discussion

How often should A to go to Shenzhen to see his paternal Grandmother, if at all?

6.I had been under the impression originally that there was no dispute over the principle of such visits – but simply the frequency. The father was asking to take A to Shenzhen twice a month and the mother was suggesting that once a month might be more appropriate. It seems that the concern is that such a long trip would be too tiring for such a young child and that instead it would be preferable for the Grandmother to travel to Hong Kong to see A. In the written submissions however the mother suggests that there should be no such trips.

7.In this case the father has a substantial home in Shenzhen which he returns to often. The paternal Grandmother spends a lot of time there. A has been to this home before, as has the mother. In the circumstances I cannot see that there could be any objection in principle that A should go to Shenzhen to see his Grandmother and to spend time with his father and other family members there. He will travel in a chauffeur driven car with the father and other domestic staff. In the event that the father is unable to go to Shenzhen I agree that A should be accompanied by the mother’s domestic helper. In the circumstances I will order that A visit Shenzhen once per month for the next 12 months given that he is still quite small. Thereafter the visits shall be increased to twice per month.       

Should the mother’s maid accompany A on all access visits including those to Shenzhen?

8.The mother is nervous about A going to see his father without the presence of her maid. She cites a number of incidences which she says support her in this. I do not intend to go through these. The father says that there is no need for the maid to attend on all access visits. He says that this is in effect a form of supervised access – which is totally unnecessary. I tend to agree. The father will however agree to the maid accompanying A to Shenzhen in the event that for whatever reason he is unable to accompany A himself. Thus access visits will generally not be in the presence of the mother’s maid save for odd occasion when the father is unable to accompany A to Shenzhen.       

Should the mother in the alternative accompany A on access visits to Shenzhen?

9.I agree that there will be no need for this – especially given the fact that the father has compromised and agreed that the maid can accompany A to Shenzhen if for whatever reason he cannot.

Who should be responsible for A’s travel documents

10.A parent should generally speaking be responsible for A’s travel documents. Normally this will be the mother. When A is travelling to Shenzhen or elsewhere with the father then the travel documents should be passed to him. In the event that neither parent is with A when travelling then the travel documents should be given to the mother’s maid.

How should issue of staying access be approached?

11.There is no doubt at all that in time the father should have regular weekend and holiday staying access to A. I agree that this is something that should be developed and added to incrementally. In the event that the parties are unable to agree this I will give liberty to apply.

Access generally

12.For the avoidance of doubt it is agreed that that the father will have access to A every Saturday from 11 am – 4 pm. The father will pick up and drop off A from the mother’s residence. In addition he is entitled to two further access visits per week of up to 5 hours each upon giving 12 hours notice to the mother. I would urge the parties to be flexible with each other in this respect.

Costs

13.In so far as this aspect of the case is concerned given that this is a child related matter there shall be an order nisi to be made absolute in 28 days time that there shall be no order as to costs.

Mr Jonathan Kwan instructed by Messrs Boughton Peterson Yang Anderson for the Applicant

Ms Mairead Rattigan instructed by Messrs Hampton Winter & Glynn for the Respondent