Ctk v. Cpk

FCMP 167/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 167 OF 2014

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JUDGMENT
(JOINT CUSTODY, CARE & CONTROL)

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1.This is a trial on the custody of M, a girl now aged 8, who was born outside wedlock of the Applicant father (“the father”) and the Respondent mother (“the mother”).

The Parties’ Respective Position

2.In the parties’ final submissions, I was informed that the father now wants to have joint custody and joint care and control with M under his care during the following periods of time:

(1) Every Tuesday and Wednesday between 6:30pm and 9:00pm;

(2) Every Thursday 6:30pm to Friday morning and the father will take M to school;

(3) Every alternate weekend starting from 6:30pm on Saturday to 9:00pm on Sunday;

(4) During M’s long school holidays:

(i) 5 consecutive nights during Christmas to be used on vacation trips;

(ii) 2 full days contact during Chinese New Year;

(iii) 2 full days contact during Easter;

(iv) 5 consecutive nights during Summer Vacation to be used on vacation trips; and

(5) Unfettered telephone contact with M.

3.On the other hand, the mother asks for sole custody, care and control of M with the following access arrangement to be granted to the father:

(1) Day access on every Tuesday and Thursday from 6:30pm to 8:30pm;

(2) Staying access on alternate weekends from 6:30pm on Saturday to 8:30pm on Sunday;

(3) Staying access of several consecutive nights to be used on vacation trips during Christmas and Summer Vacation to be agreed between the parties; and

(4) Such further access to be agreed as from time to time.

In addition, the mother will also give her undertakings to consult the father on every major decision concerning M’s education and health.

Brief History

4.The father is now aged 45, a Senior Advertising Director by occupation.

5.The mother is now aged 38, presently a homemaker.

6.In about 1993, the mother gave birth to a boy, CL (“the step brother”), out of a previous relationship.   

7.The parties came to know each other as colleagues in about 1995 but their courtship ended after a short period of time.   They resumed contact in 2002 and started cohabitation in 2003.  Both of them and the step brother lived together in a rented flat in Sai Ying Pun until the birth of M in 2006. In 2007, the family of 4 moved to Sai Kung with the father being the sole breadwinner after the mother stopped working due to her pregnancy of M.

8.It was rather unfortunate that the parties’ relationship began to deteriorate in late 2008 with them quarrelling over trivial matters frequently. In about 2010, the mother finally moved out with the step brother and M and the 3 of them lived in a flat at Hill Road, Sai Ying Pun (“the Hill Road Flat”) with a tenancy signed and paid for by the father.

9.After separation, the father continued supporting the living of the mother, the step brother and M financially. He paid for the rent of the mother’s abode and also a monthly sum of $15,000 as their maintenance.   The parties were able to maintain a relatively amicable relationship with the father having frequent access to M.  

10.However, in about 2013, the parties were engaged in another dispute over M’s insurance policy leading to the father discontinuing his financial contribution and the mother stopping the father’s access to M.   This incident concerned with the mother’s cancellation of M’s insurance policy which was taken out by the father some years ago. The father initially asked for the transfer of the policy into his name so that he could manage the same for M. The mother said she had encountered difficulties in the transfer and so she cancelled it thinking that the father could take out a new policy instead. She received about $11,000 upon the said cancellation. Unfortunately, this unilateral action of the mother was viewed with mistrust on the part of the father. The parties had spent quite some time on the argument of this incident at trial, but I do not think it will affect the outcome of this case in any significant way.  

11.Another unhappy incident was that at or about the same time, the mother was required to move out of the Hill Road Flat. According to the father, this was due to the termination of the tenancy by the Landlord.   The mother, on the other hand, viewed this as another tactic to put pressure on her because of the insurance policy incident. The mother finally moved to her present abode also located in the Western District in June 2014. There was at one time an invitation from the father for the mother and M to resume living at the Hill Road Flat saying that he was now able to negotiate the continuation of the tenancy with the Landlord.   Due to the tenuous nature of the tenancy at Hill Road, the mother requested an undertaking from the father to secure the Hill Road Flat or provide similar accommodation in the future before she would move back to the flat. The father did not provide such undertaking and so the mother stayed on at her present abode until now.

12.In July 2014, the father issued the present proceedings first requesting for joint custody, care and control of M. He later changed his mind and asked for sole custody. However, he changed his mind again and is now content with joint custody, care and control of M.

13.After the issuance of the proceedings and through their respective lawyers, the parties were able to come up with some sorts of interim arrangement in which the father resumes his financial support and the mother agreeing to the father’s continuous access to M. The latest arrangement on access is that the father will have evening access to M on every Tuesday and Thursday between 6:30pm and 9:00pm so that he can assist M in her homework and studies. He will also have alternate weekend staying access from 6:30pm Saturday to 9:00pm Sunday. The experience in the past few months also shows that both parties are willing to accept some degree of flexibility in the access arrangement.

14.As far as the court procedures are concerned, the parties attended the Child Dispute Resolution (CDR) hearing but failed to reach an agreement and therefore, the case has to be adjourned to today for trial.

The Law

15.The Court’s jurisdiction to make a custody order can be found in s. 10(1) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”), which states:

“(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding –

(a) the custody of the minor;

(b) the right of access to the minor of either of his or her parents,

as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.  ”

16.The general principles as set in s.3 of GMO also provide that:

“(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 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; and

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17.In short, in resolving the parties’ dispute on the issue of custody of a minor, the guiding principle is always to seek such an arrangement that would serve the best interests of that minor.

18.In PD v KWW (Child: Joint Custody)[1], Hartmann JA (as he then was) has given a detailed and very useful discussion on the dual concepts of joint custody, care and control which should be borne in mind by all parents and their representatives when they come to consider such issues:

“28. As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’. Neither concept, however, is defined in our statute books.

29. Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons. 

30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare.  They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport.  A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child.  They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care.  They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.

33. We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing. The present case is a prime example.

…..

36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent.  Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

37. In the same case, Cumming-Bruce LJ, another experienced family judge, said:

“…. it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

38. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing.  While the right to be consulted does not include a power of veto, it is nevertheless a substantial right.  It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered. 

39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter. 

40. Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown o f the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason it is often said that there is a thin line between sole custody and joint custody.

…

43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasized that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control.  This is because, when a parent exercises tights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child”

19.The following principles can be enunciated from the above passage:

(1) A parent having custodial rights has the authority to make decisions which will have real consequence in safeguarding and promoting a child’s health, development and general welfare.

(2) On the other hand, the rights to care and control concern with decisions which are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child.

(3) A custodial parent is not given an absolute and independent authority to act without further reference to the non-custodial parent. 

(4) A non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing.  Although the non-custodial parent does not have a right of veto, his right is not merely a right to be informed, but to confer on the matter in issue, to give advice and to have that advice considered.

(5) In the event of disagreement, the custodial parent will have the authority to make the final decision, but subject to the non-custodial parent’s right to apply to the court for further directions if he deems it necessary for the protection of the child’s best interests.

(6) When a parent is given access to the child, he/she is effectively given shared care and control of that child.

20.Although the above discussion was centred on a child’s arrangement after divorce, the concepts are of course equally applicable to children who were born outside wedlock, as in the case of M in our present context.

21.In the latter part of the judgment[2], His Lordship has also given some guidance on the proper approach on the issue of joint custody:

“52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”

22.In other words, a joint custody order will almost invariably be in the best interests of a child save and except under the most exceptional circumstances when the parties’ ability to co-operate is so undermined that to compel them to co-operate will only act to the detriments of the child.

23.In Y v P[3] , a case heavily relied upon by the mother, Roger VP of the Court of Appeal has given its approval to the approach adopted by Recorder Rimsky Yuen SC in ML v YJ in refusing to grant a joint custody order:

“21. On this appeal the first matter which must be considered is the question of custody. In this respect, attention has been drawn to the decision in ML v YJ, HCMC 13 of 2006, a decision of Rimsky Yuen SC, sitting as a Recorder, given on 23 May 2007. The Recorder’s judgment usefully sets out the law relating to custody. As the Recorder pointed out in paragraph 24, the first consideration as to whether to grant joint custody to both parents or sole custody must be the welfare of the child. The Recorder went on to state that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. The Recorder continued:

“(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 child’s upbringing. However, if it is clear that a joint custody 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 interests of the children as the adverse consequences will far outweigh the benefits that it may bring.” ”

24.Therefore, it is accepted that when there are genuine and irreconcilable difficulties in the communication and co-operation of the parents, pointing to the fact that a joint custody order is unlikely to be workable, the court will not grant such an order simply for the encouragement of the parents’ co-operation or to recognise their continued roles in the child’s future development because such an attempt will not be in the best interests of the child.

The Social Investigation Reports

25.Social Work Officer, Mr Lau has prepared 2 Social Investigation Reports for the court’s consideration. It is Mr Lau’s evidence that both parties are caring parents and have close and intimate relationship with M. Despite the fact that M has been under the main and stable care of the mother with the help of a domestic helper and the step brother, the father has also actively participated in M’s upbringing, especially in assisting M in her homeworks and studies. It is true that for a short period of time after the insurance policy incident, the parties had encountered tremendous difficulties in communication causing the father ceasing access to M, but that was something in the past. The parties are now able to resume contact by way of e-communication and a structured regime of access is also in place working fairly smoothly, except may be for a small complaint by the mother of M’s late return after access.

26.26. In his recommendations, Mr Lau was of the view that a joint custody order would be in the best interests of M. For the sake of continuity and in view of M’s preference of living with the mother, the mother’s on-going care and control of M with assistance from the domestic helper and the step brother is supported. Mr Lau also supported a defined generous access schedule, say day access on Tuesday and Thursday and staying access from Saturday to Sunday.

The case of the father

27.It is the case of the father that both parents’ continued involvement in the welfare of the child will be in the best interests of that child. Counsel referred me to the case of H v N[4]in which Jeremy Poon J said at para 18 of the judgment:

“…This equality principle reflects the shift in social values concerning parental responsibilities and the universal recognition that the long-term interests of a child are best protected if both parents are, despite the breakdown of their relationship, involved equally.”

28.Furthermore, as it is the recommendation of the Social Investigation Officer that there should be a joint custody order in view of the close relationship between M and the father and the father’s ability to assist M in her home works, there is no reason why a joint custody order should not be granted in this case.

29.Despite the fact that it was Mr Lau’s recommendation that M’s care and control should be given to the mother, counsel argued that this court should not create a situation in which one of the parties is regarded as the “winner” whilst the other party as the “loser”. Counsel referred this court to HH Judge Melloy’s judgment in SKP v Y, ITT[5]at para 21:

“21. Consequently joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parties. Consequently one would normally expect an order for joint custody and joint care and control to be made by consent. However court intervention to that effect is not precluded. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.”

30.Finally, it is the case of the father that a very generous access arrangement should be put in place, which is a position supported by the recommendations of the social investigation officer.

The case of the mother

31.It is the case of the mother that she does not object to the father having generous access to M, although not to the extent as requested by him. 

32.As to the issue of joint custody, the mother does not agree to such an arrangement by saying that she would be haunted by the idea of the father interfering with her life. She said the father was being bossy and always wanted to be in control. She was afraid that the father would “veto” the daily matters that she has arranged for M.  

My Views

33.It is quite clear from the authorities that generally speaking, a joint custody order would be in the best interests of a child as this would recognise the joint involvement of both parents in the major decisions concerning the child after divorce or separation. The only exception is that if there should be insurmountable difficulties in the parents’ communication or cooperation, any order forcing them to come together to agree on the major decisions concerning the child would only result in adverse consequences which would far outweigh the benefits of a joint custody order.

34.In the circumstances of this case, I do not see such adverse consequences.

35.I fully appreciate that the parties have had their unhappy differences in the past once resulting in the stoppage of the maintenance payment and the access to M.  But the more recent experience shows that the parties are now able to maintain a relatively more amicable relationship and the access arrangement for M is also working reasonably well. I understand that the mother may have the fear of being bossed around by the father as she feels being in a more inferior position.   However, for the benefit of M, I think the mother has to give this a try and in the event that there should be any major disagreement that cannot be resolved among the parties themselves, they can always come to this court for a determination. Under these circumstances, I am inclined to accept the social investigation officer’s recommendation for a joint custody order.

36.I also agree with the social investigation officer’s recommendation that the care and control of M should be given to the mother. In this regard, I have to remind myself that care and control concerns with decisions of a more mundane or day-to-day nature. Obvious examples would include what breakfast to eat before school, what clothes to be worn in the day, what television to watch at night, etc.  As to this kind of day-to-day decisions, I really cannot see how a joint care and control order can work in practice, at least under the circumstances of this case.  If such an order is to be granted, does it mean that the mother has to consult the father and to seek his agreement to those daily decisions every day? I do not think such arrangement is desirable or workable, especially when the mother is in fear of being bossed around by the father.

37.I think the real solution is for the father to have a generous and more structured access arrangement with M. After all, a structured and workable access arrangement is already a form of shared care and control as all those more mundane and day-to-day decisions will be made by the parent who is having the care of the child at the time.

38.Under these circumstances, I am not minded to grant a joint care and control order in this case.

Access to M

39.It seems that in principle, both parties do not dispute that the father should have generous access to M, although the extent of which is still subject to argument.

40.As I see it, the following access arrangements will serve the best interests of M:

(1) Day access on every Tuesday and Thursday from 6:30pm to 9:00pm;

(2) Staying access on alternate weekends from 6:30pm on Saturday to 9:00pm on Sunday;

(3) During M’s long school holidays:

(i) 5 consecutive nights during Christmas to be used on vacation trips;

(ii) 2 full days contact during Chinese New Year;

(iii) 2 full days contact during Easter; and

(iv) 5 consecutive nights during Summer Vacation to be used on vacation trips;

(4) The father shall have unfettered telephone contact with M; and

(5) Such further access to be agreed as from time to time.

41.By allowing the father to have week day evening access, it will allow his continuous involvement in M’s studies and home works.   I understand that the father would like to have further staying access from Thursday to Friday but I think that would be too much of a disruption to M’s daily routine.

42.I also understand that the mother would like to have the weekday access to end at 8:30pm, instead of the present time of 9:00pm, as the father was always late in returning M. I think the purpose of the weekday evening access is to allow M to have dinner with the father and at the same time, the father could also give guidance in M’s studies.  I think 2 hours’ access would be a bit too short for those 2 purposes.   Two and a half hours would be more reasonable.   In this regard, I have to remind the parties that some kind of flexibility is important for the smooth running of the access arrangement and I do hope that the parties will exercise this flexibility for the sake of M.

43.As to M’s long school holidays, I think it is fair to allow further access, especially for the father to have overseas trips with M, which I believe must be in the best interests of M.

44.In addition, I will also record the mother’s undertakings to consult the father on every major decision concerning M’s education and health.

Orders

45.Based on the above reasons and subject to the mother’s undertaking that she will consult the father on every major decision concerning M’s education and health, I will grant the following orders:

(1) Both parties shall have joint custody of M.

(2) The mother shall have daily care and control of M.

(3) The father shall have reasonable access to M, including:

(i) Day access on every Tuesday and Thursday from 6:30pm to 9:00pm;

(ii) Staying access on alternate weekends from 6:30pm on Saturday to 9:00pm on Sunday;

(iii) During M’s long school holidays:

(a) 5 consecutive nights during Christmas to be used on vacation trips;

(b) 2 full days contact during Chinese New Year;

(c) 2 full days contact during Easter;

(d) 5 consecutive nights during Summer Vacation to be used on vacation trips;

(iv) Unfettered telephone access to M; and

(v) Such further access to be agreed as from time to time.

Costs

46.The usual costs order for children matters is for no order as to costs. I do not see any special reason for departure from the usual order and therefore, I will order that there shall be no order as to costs, including all costs reserved. As the mother is legally aided, I will also grant an order for legal aid taxation. This will be in the form of an order nisi to be made absolute after the expiry of 14 days from the handing down of this judgment.

Representation:

Mr Raymond Chu, Barrister-at-law, instructed by Messrs Fongs, solicitors for the Applicant

Ms Candi Anna Chan of Messrs LCP, solicitors for the Respondent

[1] [2010] 4 HKLRD 191-201, at paras 28-41

[2] Paras 52-57

[3] [2009] HKFLR 308

[4] [2012] 5 HKLRD 498

[5] FCMC 177/2011, unreported, 12 November 2012