W v F

CourtFamily Court (Hong Kong)
Judgment Date02 June 2005
Subject MatterMatrimonial Causes
Judgement NumberFCMC809/2004
FCMC809A/2004 W v. F

FCMC 809/2004






  W   Petitioner 
  F  Respondent 


Coram: Deputy Judge C.K. Chan in Chambers

Date of Hearing: 23 May 2005

Date of Judgment: 2 June 2005


1. In this hearing, I have to deal with the parties’ cross applications for variation of the Court’s order made on 15 October 2004 on the interim access to the three children of the family.


2. The Petitioner mother is now aged 42, a housewife and the Respondent father aged 45, a solicitor by occupation. I shall refer to them as mother and father in this judgment.

3. The parties married in 1996 and three children were born out of the wedlock. They are:

(1) S, a boy now aged 7;

(2) Q, a boy now aged 5; and

(3) K, a girl now aged 2

4. On 31 January 2004, the mother filed a petition for divorce based on the ground of unreasonable behaviour. Subsequently and by consent, the ground for divorce was amended to adultery. On 6 October 2004, a decree nisi was granted and the First Appointment for Financial Dispute Resolution (on custody and maintenance) was adjourned sine die with liberty to restore.

5. The parties separated in about March 2004 when the mother moved out of the matrimonial home with the three children and stayed in an apartment in Queensway. I was informed at the hearing that a house has been bought recently and now the mother and the children are living in Clear Water Bay.

6. As far as the arrangement for interim access is concerned, there have been two orders made by this court so far.

7. The first order was made by Deputy Judge D’almada Remedios on 17 March 2004. I think it serves no useful purpose for me to go into the details of that order. The father was not satisfied with that order and an application for variation was made.

8. The application was heard by HH Judge Carlson on 14 October 2004 and on 15 October 2004, he made the following order on interim access to the three children of the family:

(1) On a four weekly cycle:
(i) Week 1, the father do have access from noon on Saturday until Monday morning, when the father is to take the children to their respective schools on Monday morning;
(ii) Week 2, the children to remain with the mother;
(iii) Week 3, the father to have access from noon on Saturday until Monday morning, when the father is to take the children to their respective schools on Monday morning;
(iv) Week 4, the father to have access on Sunday from 9:30 am until 7:00 pm;
(2) In addition to (1) above, the father to have access on every Thursday from 3:00 pm to 8:00 pm.

9. The mother was not satisfied with the above order and she issued a summons asking for a variation on 15 February 2005. The father was equally dissatisfied with the order and he issued his summons for variation on 23 March 2005.

The Mother’s Grounds for Variation

10. The mother has filed an affirmation in support of her application. I think she has three main complaints:

(1) With the present arrangement, the children are spending most of their free time with the father whilst the mother’s role is relegated to more like a caregiver only;
(2) The father has not taken good care of the children in terms of their studies; and
(3) The present arrangement has interrupted with the routine that the children used to have in the past.

11. In her affirmation, the mother testifies that the school hours of the children are from 8:30 am to 3:00 pm. After school, the children are fully occupied by extracurricular activities which include yoga, ballet (for K), digital arts, judo, ice skating and ice hockey classes from Monday to Wednesday. Thursday is the access day by the father. For Friday, it is the play day when the children will meet their friends on a regular basis. For Saturday morning, the children will attend counseling sessions for an hour. With this tight schedule, the only recreational time that was left to the mother is the second weekend. The mother said this is simply not enough and not fair to her.

12. The mother also complains that during the access to the children, the father has failed to supervise the home works of the boys properly. The husband always gives recreation a much higher priority than home works. She says it has made her job much more difficult when the children are returned to her care after access.

13. The last complaint is that with the present access arrangement, the children just do not have a simple routine to follow in their daily lives. Furthermore, by returning the children at 8:00 pm on Thursday evening, it means that the children cannot go to bed by 7:30pm as they use to do everyday in the mother’s care. The arrangement of the father bringing the children to school on Monday mornings from Sai Kung also means that the children have to get up very early because of the longer journey.

14. All these are unsatisfactory and so the mother makes certain proposals in her affirmation. However, I think it is now unnecessary to go into details of those proposals as I was informed at the hearing that the mother is now willing to accept the proposals put forward by the social welfare officer except with some very minor reservations.

Social Welfare Officer’s Recommendations

15. Ms. Lau of the Social Welfare Department has prepared a very useful report. According to her, both parents have demonstrated themselves to be competent and loving parents. It seems that all three children are under their proper care. They are having healthy growth and satisfactory behaviours. Ms. Lau is also of the view that a set of routine, schedule and the same surroundings are very important for the children’s normal development to which I entirely agree. As a result, Ms. Lau made the following recommendations on access:

(1) On Week 1 and Week 3, the father do have access to the children from Friday after school to Saturday morning;
(2) On Week 2 and Week 4, the father do have access to the children from Saturday noon to Monday morning;
(3) Visiting access from 5:00 pm to 8:00 pm on father’s day and the birthday of the father, 2 January of every year. The same applies to mother’s day and the birthday of the mother, 7 September of every year;
(4) In the event that normal access as defined has to be cancelled due to the children’s tuition class, interest class and the father’s business trip, etc. compensation for such loss of access will be arranged through the parents’ telephone contacts, at least three days prior notice. Flexibility should be applied in this case.

16. At one point, counsel for the mother submitted that the recommendation on Week 1 and Week 3 were unclear since it did not specify until what time the access should end. It was later clarified by Ms. Lau in her supplemental report that by “Saturday morning”, she meant the early part of the day between dawn and noon subject to the parties’ agreement.

17. The mother’s latest stance is that she would agree to recommendations (1) and (2) but the special arrangements on father’s day, mother’s day and the parties’ birthdays should be extended to the whole day instead of limiting them to three hours. As to the last recommendation, she views that it is unnecessary and to a certain extent undesirable because that would only give rise to further conflicts between the parties.

The Father’s Grounds for Variation

18. As far as I can gather from the father’s affidavit in support of his application for variation, one of his main grounds for variation is that under the existing order for access, the children are not really “shared” between the parties. According to him, during the weekend in Week 4, he was only given access from 9:30 am on Sunday and has to return them to the mother at 7:00 am. This means that for this particular weekend, the mother will have Friday, Saturday and Sunday nights with the children whilst he is only given the daytime on Sunday.

19. In his affidavit, he also objected to the mother’s proposal for abolishing the access on Thursday. At the hearing, I think the father’s position has changed a little in that he does not seem to insist on Thursday access provided he would be given his fair share of access during the weekends. By fair share, he asked the court to give him slightly more than 50% of the weekend time because he would like to have more Sunday mornings with the boys to play rugby. Counsel for the father has submitted four different proposals in the form of diagrams for the court’s consideration.

20. The father also requests more flexibility in the access arrangement because of his business commitments. He complained that the mother has...

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