C v S

Court:Family Court (Hong Kong)
Judgement Number:FCMP216/2001
Judgment Date:30 Jan 2003
FCMP000216/2001 C v. S

FCMP 216/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS No. 216 OF 2001

_________________

  IN THE MATTER of E (an infant)
  and
  IN THE MATTER of the GUARDIANSHIP OF MINORS
  ORDINANCE CAP 13

_________________

BETWEEN

  C Applicant
  and
  S Respondent

_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 11 12 November 2002 & 16 January 2003

Date of Judgment : 30 January 2003

_________________

J U D G M E N T

_________________

1. This is the Respondent Father’s application for defined staying access to his 1 year 10 months old daughter whose custody care and control has already been granted to the Applicant Mother. It is not in dispute that the Father should have reasonable access to the daughter, but the Mother objects to her staying overnight at the Father’s place at her present young age.

2. The parties were married on 6th April 1999 in Ontario, Canada, but are actually domiciled in Hong Kong where they live and work, with the Mother as a sales executive of T Ltd., whilst the Father runs his consultancy business for printing companies. Both are in their 30s. The marriage however has not been a happy one, with numerous quarrels and conflicts over matters which are not necessary for me to go into, that the parties had actually lived together for short periods only.

3. On 12th April 2001 the Mother gave birth to the daughter E while the parties were living apart. Despite this the parties did not move back together and the Mother continued to live with her infant daughter in a rented flat where the Father would visit the daughter from time to time. One day in December 2001 the Father took the daughter away during access and failed to return her to the Mother, accusing her of not providing proper care for the child which caused her to suffer poor health.

4. On 3rd January 2002 the Mother came before me on an originating summons under the Guardianship of Minors Ordinance, Cap 13 for an order that she be granted the custody care and control of the child and for the Father to forthwith return the child to her. Both parties were then represented by Counsel and after hearing their arguments, I granted the Mother interim custody care and control of the child and ordered the Father to forthwith return her to the Mother. It was then agreed between the parties that the Father should have interim access from 5 pm to 9 pm on every Wednesday and from 10 am on Saturday to 9 pm on Sunday on every alternate week which was incorporated into my said order. As is normal in contested custody cases, I also called for a social investigation report.

5. In March 2002 the report was submitted to Court recommending that custody of the child should remain with the Mother but that the Father should have the following access : -

1. visiting access for 4 hours on every Monday and Wednesday;

2. on alternate week, visiting access on Saturday from 10 am to 9 pm;

3. on alternate week, staying access from Saturday 10 am to Sunday 9 pm;

4. staying access for half of Christmas, Lunar New year, Easter and summer holidays;

5. visiting access from 10 am to 9 pm on the child’s birthday as well as a number of public holidays such as the Ching Ming Festival, the Mid-Autumn Festival, etc.

6. The report concluded that this access schedule should be looked at again when the child starts her primary education.

7. On 19th September 2002 the parties re-appeared before me when it was agreed that custody care and control of the child be granted to the Mother with defined access to the Father as recommended in the report except staying access which the Mother objects on the grounds that the child is too small to sleep away from her and that the interim staying access which the Father has had under the January order is having a negative or adverse effect on the well-being of the child. This issue of staying access was therefore adjourned for oral evidence and argument. In the meantime the parties agreed that the interim access arrangement should be slightly varied as follows : -

1. for the Wednesday visiting access, the time was to be pushed back by half-an-hour from 4.30 pm to 8.30 pm;

2. the alternate Saturday visiting access was reduced to 10 am to 2 pm;

3. the staying access is also cut back from Saturday 10 am to Sunday at 12 noon.

8. This varied interim access arrangement has since been implemented for another 4 months up to the presence.

9. The general principles in relation to the question of access are the same as those governing custody or upbringing of a child as set out in section 3 of the Guardianship of Minors Ordinance, ie. the Court shall regard the welfare of the child as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the child if, having regard to the age...

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