IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS No. 216 OF 2001
||IN THE MATTER of E (an infant)
||IN THE MATTER of the GUARDIANSHIP OF MINORS
||ORDINANCE CAP 13
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 and understanding of the child and to the circumstances of the case, it is practicable to do so, and any material information including any report of the Director of Social Welfare available to the Court at the hearing, and shall not take into consideration whether the claim of the Father is superior to that of the Mother, or vice versa.
10. The child in this case, with still 2 months to go before she is 2, is of course too small to express her wishes on the issue of staying access. Her behaviour towards her parents, however, indicates a good and close relationship with both of them, although quite naturally, she is more intimate with the Mother, according to Paragraph 23 of the Social Investigation Report as follows : -
“23. Throughout the evaluation, the child’s behaviour indicates that she feels happy and secure in the presence of each parent. Both parents are able to establish emotional connections with the child. As observed during home visits, the child appears to have close and good relationship with each parent in general. She interacts and relates with each parent in a joyful and relaxed mood ……”
11. There is no dispute that the Father, with the assistance of his parents, has been able to render proper care for the child during her stay at his home either for visiting access or overnight access, which has been going on for a year by now as a result of the agreement reached between the parties at the hearing of the Mother’s application for interim custody.
12. The Mother however started to question the suitability of staying access at the child’s tender age in May 2002, and in her 2nd affirmation of 4th September 2002 she set out her observations of the child after staying access as follows : -
“46. Every time after E is returned from the staying access, she has displayed the following signs of emotional distress : -
(a) She appears to be exhausted, thirsty and much more attached to me than usual;
(b) She needs more time to sleep than usual;
(c) Sometimes she even cries and screams at night; and
(d) She needs to take about 2 to 3 days to adjust to our living environment and gets irritated easily”.
13. The Mother then gave her reasons in details as to why she now objects to staying access as follows : -
“47. I verily believe that given the tender age of E, a sense of...