IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 167 OF 2014
|Coram: H.H. Judge C.K. Chan in Chambers (not open to the public)
|Dates of Hearing: 12, 15-16 June 2015
|Date of Judgment: 29 July 2015
(JOINT CUSTODY, CARE & CONTROL)
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.
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.
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...