Wtv v. Wmc

FCMP 54 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 54 OF 2014

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RULING
(Access)
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Introduction

1.This is an application by the Applicant mother for joint custody, with care and control to her and reasonable access to the father. She also seeks financial provision for the children – which will be dealt with on a subsequent occasion.

2.In reality though, it seems to me that this is more of a battle about control and other related and unresolved emotional issues. The mother wishes to have a court order that will enable her to continue to determine the practical arrangements for the children on a month on month basis. This is because both parents are X pilots who are subject to the vagaries of their employer’s roster system. The father for his part wishes to have an arrangement whereby the children alternate their weeks and spend time with each parent on a week on/week off basis.

Background

3.I don’t intend to go into the background of this case in any great detail save that it should be noted that the levels of conflict are very high and that as things stand at present the three adults concerned namely the mother, the father and the father’s new wife Ms H, are not communicating at anything other than at a very basic level – if at all. The children and other care givers such as the mother’s two domestic helpers seem to be caught in the cross fire.

4.The children who are the subject of this application are two boys, namely E who was born in June 2004 and who is now aged 10 and R who was born in March 2006 and is now aged 7.

5.The parties married in August 2001 in New Zealand but have spent the majority of their married life in Hong Kong. They separated in September 2011 and divorce proceedings were subsequently issued in New Zealand. The marriage was dissolved in July 2012. At the time of the divorce the mother based in New Zealand with X and the father was similarly based in Hong Kong. The father would generally commute down to New Zealand to see the children, but the children lived with the mother and she was the primary care taking parent. In January 2013 the mother returned to live in Hong Kong with the children – but continued to be based in New Zealand as that afforded her a more favourable roster. The father meanwhile formed a new relationship and in April 2013 he remarried Ms H, who also has two children. All parties are now living in Discovery Bay – the father with Ms H and her two children on a houseboat and the mother with two domestic helpers in a nearby apartment block. The children currently split their time between the two households on an ad hoc basis according to the availability of each parent. It would be fair to say that there is a high level of animosity between the mother and Ms H in particular and that communication has deteriorated between the two sides to the extent that it is now virtually nonexistent. It would be foolish to imagine that the children are not affected by this.

6.The main bone of contention seems to be that under the father’s proposal the children would be cared for by Ms H, possibly at times when the mother is also in Hong Kong and is available to look after them. The other difficulty from the mother’s perspective is that the father’s proposal could mean that neither parent spends an optimal amount of time with the children. The father for his part says that the present system is unworkable, that the mother dictates to him when he can and cannot see the children and that this arrangement involves many changes of residence over a month which in turn can lead to instability and confusion. The mother disputes this and says that the children have grown up in an environment where they are used to both parents flying and that they have no difficulty splitting their time between two households.

The mother’s proposals

7.The mother argues that she is the care taking parent and that as such she should have care and control of the boys. In so far as the practicalities of the roster system are concerned she says that:-

38. Since the Children and I moved to Hong Kong in January 2013 up until July 2013, the Respondent and I were able to basically agree on the access schedule based on the days when we are respectively in Hong Kong.  Such schedule maximizes the number of days that both the Respondent and I have with the Children to cater for the days when we are in Hong Kong.  We are lucky to have coverage from N, [the domestic helper] who has known the Children since they were very young, to cover us when we are both away from Hong Kong.  It is unfortunate that after Ms H moved to Hong Kong in around July 2013, this arrangement has broken down.

39. With both the Respondent and I being pilots working for same employer, it is relatively easy to schedule access.  Our rosters are available on the 16^th of each month and I would schedule the Respondent’s access for following month.  Usually I would come up with the schedule, send it off to the Respondent and ask for input or comments.  In the recent past I have had neither.  It does require some working out as our rosters are only available on the 16^th day of each month for the following month but it does allow maximum days with the Children for both the Respondent and I in this way.  The schedule would provide as follows:-

a) The Respondent has access to the Children when he is in Hong Kong;

b) The Children will remain with me when I am in Hong Kong;

c) When the Respondent and I are both in Hong Kong, we will split the number of days as best we can so that we will get an equal amount of time with the Children;

d) When neither the Respondent nor I are in Hong Kong, the Children are taken care of by N at my home, which is also the Children’s preference.

8.In her counsel’s supplemental Closing note she proposed as follows:-

1. Joint custody.

2. Care and control to M.

3. Reasonable access to F.

4. Defined access to included alternate week staying access between Wed to Sun, handover to occur on Wednesday after school and Monday after school.  F to request days off to fit in with such access.

5.   In the event F is absent from HK during any night of such access, children to return to be with M.

6. Upon handovers, party with whom the children have been do provide to the other a written update on E and R relating to health, homework, new appointments (birthday parties etc) and any other matter of importance.

7. Parent with the children will enable telephone and/or Skype contact with the other parent during hours of [  ] during weekdays, and [  ] during weekends.

8. Extracurricular classes to be discussed before being arranged.  Parent with the children to ensure attendance as arranged.

9. Holidays to be divided equally.

10. Christmas/CNY/Easter.

11. December 2014.

12. Birthdays and special occasions.

13. Notification of proposed overseas travel.

14. Non-removal without written consent/Order.

The father’s proposals

9.The father for his part makes the following suggestion:-

Therefore, I am requesting of the court orders made defining access as week on/week off.  I am also requesting shared custody and as I live in Hong Kong, the children live in Hong Kong, the children’s extended family live in Hong Kong but the applicant chooses to live in New Zealand, I think it a reasonable order that the respondent be granted care and control of the children.

10.As indicated to the father during the last hearing – it is not possible to have “shared care” and “care and control”/“access”. Either there is an order for shared care – in which case the practical arrangements for the children are then defined in the order – or there is an order for care and control and access. In either event it is possible to have an order for sole or joint custody.   

The law in Hong Kong

11.The general principles governing applications relating to children’s issues are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which states that the court:-

GENERAL PRINCIPLES

(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 best interests 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;

12.Contact with both parents is generally said to be the right of the child, as opposed to the right of 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 best interests of the child and not the relative rights of each of the adults with respect to him. In other words this is not about the adults – but rather about what appears in these circumstances to be in the best interests of the children. 

Social Investigation report

13.Recommendations made to the court in social welfare reports, although not binding are considered persuasive. In the event that the recommendations are not followed reasons should be given for that in the judgment.

14.In this instance the Social Welfare Officer came down in favour of the father in that she recommended the week on/week of arrangement subject to the caveat that if the father was out of town during his week and the mother was in Hong Kong, then the children should be returned to the mother. At paragraph 38 she says as follows:-

38. Taking into consideration that both Madam W and Mr W’s suggestion of child care arrangement had its own merits and demerits, an integrated approach to maximize the advantage of two proposals with the motive to serve the best interest of the children was inclined for.  It was understandable that Madam W insisted her roster system as it could ensure the optimal days for the children with either parent but it definitely created confusing and scattered living pattern to the children.  On the contrary, Mr W’s suggestion of week on week off arrangement offering the certainty to the children was recognized.  It was considered beneficial to nurture the sense of security to the children and was also essential to meet the special need to E who required an organized way of living.  Yet, it could not avoid the odd scenario that the children stayed with his step family when Mr W was out of town but their natural mother remained at home.  To strike the balance, whilst the stability of the week on week off arrangement was adopted, it should also ensure that the children were under their natural mother’s care when the father was absent from Hong Kong.  In light of this, on top of the week on week off approach, in case in the week of Mr W who needed to work on the particular day, the children returned to their mother’s care if she was in Hong Kong; otherwise, the children remaining in the step family was preferable than being under the helper’s care, considering the lively and interactive family environment in the father’s place.

15.And at paragraph 41 she summarizes her recommendations as follows:

41. In view of the foregoing, the Investigating Officer would like to recommend as follows:-

(a) the custody of the children, E and R be jointly granted to the Petitioner mother, Madam W, and the Respondent father, Mr W;

(b) the care and control of the children, E and R be jointly granted to the Petitioner mother, Madam W, and the Respondent father, Mr W in the week on week off arrangement with handover on Monday after school.  In case on the days that the father was at work in his week while the mother stayed in Hong Kong, the children returned to the mother’s care;

(c) reasonable telephone, Skype or webcam access to the children for the other parent for the week not living with them were preferable; or otherwise, defined access time from 7:00 pm to 8:00 pm was accepted subject to both parties’ agreement.

16.The difficulty with this recommendation it seems to me is that it does not give sufficient weight to the fact that the mother has been the primary caretaking parent up until now. She is the parent who is chiefly responsible for organising the children’s daily lives. When she is not available because of her work schedule, her domestic helpers assist in this respect – at her direction. Indeed one of the issues before me is whether or not in the absence of both of the parents it would be better for the children to stay with their mother’s domestic helpers, or with Ms H.

17.The social welfare officer’s recommendation is that in that event the children should stay with Ms H. My difficulty with that is although Ms H presented as being perfectly nice woman in the witness box, I am concerned that this is asking a lot of her. She is relatively new to Hong Kong; she has two children of her own; she does not have any domestic help and although it appears that she has a good relationship with the children, she has not been a feature of their lives for very long. To ask her to be responsible for four children on her own for extended periods of time in a high conflict situation such as this is to expect a great deal. However I also accept that there may be occasions when it is inevitable that she will be looking after all of the children. I would however hope to limit the occasions when this takes place, whilst at the same time provide some sort of structure that everyone can perhaps more reasonably work within.

Decision

18.Given these dynamics then – what would be the best option for the children going forward? In an ideal world I would come down entirely in favour of the wife. The difficulty with that is, I accept, that given the present level of animosity between the parties, to expect them as things stand at present to negotiate on the care arrangements for the children each month is impractical and likely to lead to more animosity. This cannot be in the best interests of the children. As indicated above I also have some reservations about the week on/week off proposal espoused by the father.

19.Consequently as indicated during the hearing I will order that the children have access to their father for 5 days every two weeks to coincide with his anticipated leave. This is notwithstanding the father’s objections to the same. In his closing he said as follows:-

I would like to make clear that, despite what is claimed in point 34, I am not asking for orders from the court form Wednesday to Sunday.  This was simply pointed out that those were the days that I would request off to spend on a week on/week off arrangement with my children, not a request on my behalf to have orders granted as such.  It would mean 2 weeks away from my boys, and that is not fair on them, coming to the age they are of needing their Father more and more.

20.For the avoidance of doubt I do not accept the father’s criticism. This arrangement will mean that he has the care of the children every 9 days. Thus the parties will rotate on a 9 day/5day basis. I will also hold the father to his assurances that he will apply for days off during those periods when the children are in his care. This shall be expressed as an undertaking in the order. Likewise the mother will also need to apply for days off if she wishes to maximize her time with the children. For the avoidance of doubt however I will not order that the children return to the mother in the event that during that 5 day period the father is unexpectedly called away to fly – unless by agreement between the parties. Likewise if the father is in Hong Kong and the mother is away working, the children shall remain with the mother’s domestic helper – unless otherwise agreed by the parties.

21.I shall also order that each party shall have contact with the children by telephone or skype when they are in the care of the other parent at a designated time. In the event that the parties cannot agree when that designated time shall be then I shall give leave for each side to write to the court within the next 14 days with their proposals.

22.As agreed the children’s school holidays shall be split 50:50. Both parties shall put forward their proposals in this respect, which shall be exchanged by the 1 January of each year commencing on the 1 January 2015.

23.It is directed that a parenting coordinator shall be appointed by the parties to assist them in coming to agreements with respect to the ongoing arrangements for the children – when they are unable to do so – with particular reference to arrangements for the holiday periods, extracurricular activities etc.

24.Neither party may remove the children from the jurisdiction of Hong Kong without either the consent of the other party or court order. The standard direction shall be endorsed on the court order in that respect.   

Conclusion

25.Consequently I shall make an order that upon the father’s undertaking to apply for time off during the 5 days that the children are in his care every two weeks, there shall be joint custody of E and R with care and control to the mother and staying access to the father on a two weekly basis for five nights from Wednesday after school until Monday morning when the father shall be responsible for the children being taken to school. Given that requests for taking leave have to be made by no later than the 21^st of each month, this arrangement shall take effect from 1^st February 2015. In the absence of any other agreement to the contrary the father’s first period of staying access shall commence on the 4 February 2015.

26.Each parent shall have daily telephone/skype/face time access to the children when they are in the care of the other parent at a time to be agreed.

27.The children’s school holidays shall be divided between the parties on a 50:50 basis.

28.The parties shall agree to the children’s extracurricular activities and shall each ensure that the children shall attend such classes when they are in their care. In the absence of such agreement the assistance of the parental coordinator shall be sought. 

29.There shall be a call over in relation to the financial provision for the children on the 6 March 2015 at 9:30 am.

30.Both parties do personally attend that hearing.

31.Further it is directed that the parties shall appoint a parental coordinator to assist them with the practical arrangements pertaining to the implementation of this order going forward.   

32.There shall be no order as to costs. 

Mr Peter Barnes instructed by Withers for the Applicant

The Respondent appeared in person