FCMC 2080 / 2018
 HKFC 65
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 2080 OF 2018
||Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
|Date of Hearing:
||3- 5 and 10 – 11 September 2019
|Date of written closing submissions:
||9 and 14 October 2019
|Date of written reply from the Respondent:
||28 October 2019
|Date of Judgment:
||17 March 2020
J U D G M E N T
(Sole or joint custody, sole or joint care and control/shared care,
the appropriate split of time during term time and other directions)
1. This trial arose out of a partially successful Children’s Dispute Resolution hearing. However, although the parties were initially able to reach some consensus, difficulties have continued, particularly with respect to the father’s overnights with the children, two girls now aged 9 and 5 ½ years old respectively. The elder child A, who was born on the XX February 2011, has started to resist overnight staying access with her father and it seems that the younger child, M, who was born on the XX June 2014, will sometimes follow suit. The father says that the mother is unable to control her emotions and that the difficulty is not with access per se but with the handovers. He says that it is not possible for the children to be handed over to him successfully in the mother’s presence. The mother says that the children genuinely do not wish to stay over with the father for extended periods of time and she denies that she is in any way responsible for this.
2. The father wishes ultimately to have a shared care arrangement on a 2:2:5:5 basis and he proposes putting in place now a structure that will eventually lead to this. Thus he suggests alternate weekend staying access from after school on Fridays until Monday mornings and for day time access after school on Monday and Tuesday’s until 8:00 pm. He wishes the arrangement to be reviewed in 12 month’s time and at that stage for further overnights to be introduced on Mondays and Tuesdays. He is also seeking sole custody of the children although ultimately he is agreeable to joint custody. He also wishes to continue to split the school holidays on a 50:50 basis.
3. The mother for her part asks for a more traditional order with sole care and control vesting in her and defined access to the father. She is currently proposing that the father have staying access for either one or two nights each weekend and that all other day time access be discharged save for the morning access when the father is supposed to take M to school on Monday mornings and A to school on Thursday mornings. She wishes the order for joint custody to continue and is happy to share the school holidays on a 50:50 basis.
4. I have set out the background to the parties’ relationship in brief, in the judgment on Maintenance Pending suit/interim maintenance dated the 10 June 2019, as follows:
4. The parties married on the XX September 2010 and separated in or about June 2015. The husband, who is Australian, is now 45 years of age and he works as senior actuary. The wife, for her part, has worked both as an administrator in a hospital and as a piano teacher, but she is not working at present. She is 41 years of age and is of Chinese descent. The wife issued a divorce petition on the 15 February 2018 on the basis of two years separation and the decree nisi was pronounced on the 19 September 2018.
5. The issues then are these:
What arrangements should be put in place for the children’s care during term time and when and how should those arrangements be reviewed?
Should the court order dated the 26 November 2018, in relation to the children’s school holidays, also remain in place or should it be varied?
Should the order for joint custody also remain in place, or should sole custody vest in the Respondent father?
Custody, Care and control, joint care and control/shared care and access
6. The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that
(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18- (Amended 69 of 1997 s. 28)
(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;
7. The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says 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 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 views 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;
8. For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that
…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).
9. Case law has developed over time and the most authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Reference should be made to that judgment as necessary. In particular Hartmann J said this of custody/joint custody/care and control:
The concepts of ‘custody’ and ‘care and control’
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.
10. This case could also be said, to be another example of the misunderstanding that can sometimes ensue when discussing the issue of sole versus joint custody. It is of note that the father acknowledges that he wishes to have sole custody “until such time as the petitioner can demonstrate her commitment to both, ensuring the children can enjoy a reasonable access with their father free from mental or physical barriers imposed by the petitioner or her mother, and the responsibilities co-parenting in general”.
11. The Hon Mr Justice Hartmann, JA also added as follows when discussing the notion of joint custody:
47. It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.
Joint Custody: the proper...