FCMC 3529 of 2018
 HKFC 249
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 3259 OF 2018
||AH also known as
||Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)
|Dates of Hearing:
||14 – 17 May 2019
|Written closing submissions:
||8 July 2019
|Written closing replies:
||18 July 2019
|Date of Judgment:
||19 September 2019
J U D G M E N T
(Access/joint care and control/shared care)
1. This judgment follows a four-day trial to determine the term time arrangements for the only child of the family, a 7-year-old boy who I will refer to as L. L was born on the XX January 2012 and he has just started Primary 3 at X College, in Discovery Bay.
2. Although this was initially a very high conflict situation, with each party accusing the other inter alia of assault (which had led to the regular involvement of the Police and the Social Welfare Department), by the time that the matter came on for trial the parties had, to their credit, been able to resolve a number of issues. The suit, which had initially been defended had eventually proceeded on the basis of one-year separation with consent and the decree nisi was pronounced on the 21 September 2018. In so far as L is concerned the parties had also been able to agree both joint custody and the arrangements for the school holidays.
3. Unfortunately they had not been able to resolve the issue of the term time arrangements for L, with the father generally seeking a shared care arrangement on a more or less 50:50 basis and the mother for her part, seeking sole custody and care and control of L. This is encapsulated in the mother’s summons dated the 3 March 2017 in which she seeks sole custody and care and control of L and the father’s summons dated the 11 January 2018 in which he asked that the parties share the care of L on a week on/week off basis and that the school holidays similarly be split on a more or less 50:50 basis.
4. It was the father’s case originally that it would make more sense for the parties to continue to share the care of L, as they both worked for different airlines and to a certain extent each party was governed by their respective flight rosters. In his original Statement of Arrangements dated the 9 January 2017 the father stated as follows:
As both parents are airline crew, access has been arranged based upon work schedules. The mother has access from time to time, as deemed possible based upon her work schedule. The father also has access from time to time as deemed possible based upon his work schedule. In the event of both parties working at the same time, a domestic helper, employed on a full-time basis by the father, shall mind the child and ensure he receives proper care while the parents are away.
5. This approach would have been eminently sensible had it not been for the high level of conflict that had continued to pervade the proceedings initially, making ongoing discussions about the arrangements for L on a month by month basis a very difficult prospect indeed.
6. In any event it became necessary for the court to intervene and on the 6 February 2017 the court made an order as set out below. L was in kindergarten at the time and he was attending afternoon school.
5. The Petitioner [father] shall have interim shared care of the Child in that the Child shall be in his care every Monday, Wednesday and Friday from 9:00am to 12:00noon and every Saturday from 9:00am to 6:00pm, with effect from 8th February 2017 and Skype access every Tuesday and Thursday at 6:00pm, until further Order. With regard to the pick-up and drop-off arrangements: -
5.1. The Respondent [mother] will deliver the Child to A MTR Station Exit D on Mondays, Wednesdays and Fridays at 9:00am for pick-up by the Petitioner’s helper
5.2. The Petitioner will send the Child to school for class at 12:30pm on Mondays, Wednesdays and Fridays
5.3. The Respondent will pick the Child up directly from school at 3:30pm
7. Thus L spent regular tranches of time with each of his parents and his weekends were split. He did not, however, spend overnights with the father. Once L began full time school it was clear that this arrangement could not continue. Consequently, on the 12 January 2018 the parties agreed that the father should have access to L on each Monday and Wednesday from 4:00 pm – 8:00 pm and on alternate weekends from 5:00 pm on Friday until Sunday at 6:00 pm. Pickups were at the Y Kindergarten in Discovery Bay and were facilitated between the parties’ domestic helpers. It is this arrangement that is currently under review.
8. As indicated above, it was further agreed at the Children’s Dispute Resolution hearing on the 22 October 2018, that the parties shall have joint custody of L and that the school holidays shall be divided on a more or less 50:50 basis, with special arrangements being put in place for Christmas/New Year school holiday and the Chinese New Year School holiday. Further it was agreed that if a single public holiday fell on a Friday during term time that in the event that it was the father’s weekend, that he should also have that public holiday and if L was with the mother, that she should likewise have that public holiday. I am told that the parties have also agreed the same arrangement if the public holiday is a Monday. Otherwise public holidays, not in the school holidays, were to be alternated between the parties. I am told that since then the level of conflict between the parties has lessened considerably and the mother at least, puts this down to the arrangements being “set in stone”.
9. Thus, the current issue before the court is a very narrow one. Should the current arrangements during term time be continued with an opportunity for review in say 6 months’ time, as proposed by the mother, or should a more structured framework be put in place now with additional overnight access, as proposed by the father.
10. Both parties made different suggestions for the term time arrangements both before, during and after the trial. The difficulty in part is that there seems to be a potential for further conflict if a more flexible arrangement is put in place and thus the possibility of monthly negotiations based on each parties’ respective rosters, still appears to be somewhat out of reach. Mr Clough for the mother touched upon this several times and put forward a number of suggestions designed to put in place a structure which would allow for more flexibility going forward. Unfortunately, I am not inclined to fully adopt this approach. In part this is because the Single Joint Expert, Ms E was concerned that L was beginning to show signs of stress and trauma brought about by his parent’s conflict as set out below. Thus it seems to me that a more structured approach is necessary.
11. The father’s original proposal prior to trial was that the parties should care for L on a more or less 50:50 basis on a week on/week off basis. At trial he modified this proposal and suggested that he should simply extend his current access, so that he should have overnight staying access to L on Mondays and Wednesdays, plus on alternate weekends. The difficulty with this proposal is that L would then be shuttling between two households on a day on/day off basis, which is likely to be difficult for a small child who has been used to one home base.
12. It is also of note that both parties put forward a number of other different alternatives for consideration. For example, the mother also suggested that the father’s staying access on alternate weekends be extended, but from Thursday overnight once a fortnight. The father for his part also suggested as follows in his closing:
104. If the Honourable Court takes the view that Thursdays in general would be preferable to Mondays, it is submitted that the Thursday overnight access should be every week (as a comparable alternative to Ms Lee’s recommendation), rather than on alternate weeks. On the Father’s alternate weekends, in order to narrow the gap between the Thursday option as compared to the Monday recommendation from Ms E, the access with the Father may start from Thursday after school and include Sunday overnight (ie. Thursday, Friday, Saturday, Sunday nights overnight with the Father). This would minimize the disruption to L and decrease the number of exchanges required.
As will be seen I do not intend to fully adopt either sides proposal.
Background to the marriage
13. In so far as the background to the marriage is concerned reference can be made to the judgment on maintenance pending suit/interim maintenance dated the 25 April 2018, where I said inter alia as follows:
6. In so far as the parties themselves are concerned, the husband is a 39-year-old airline pilot [now...