Wtv v Wmc

CourtFamily Court (Hong Kong)
Judgment Date08 Dec 2014
Judgement NumberFCMP54/2014
SubjectMiscellaneous Proceedings
FCMP54/2014 WTV v. WMC

FCMP 54 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 54 OF 2014

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IN THE MATTER OF E, a boy born on XX 2004 and now aged 9 and R, a boy born on XX 2006 and now aged 8 (“the Minors”)

AND

IN THE MATTER OF SECTION 10(1), SECTION 10(2) AND SECTION 23 OF THE GUARDIANSHIP OF MINORS ORDINANCE (CAP 13)

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BETWEEN

WTV Applicant

and

WMC Respondent
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Coram : Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)
Dates of Hearing: 22 and 23 October and 21 November 2014
Date of Ruling: 8 December 2014

__________________________

RULING
(Access)
__________________________

Introduction

1. This is an application by the Applicant mother for joint custody, with care and control to her and reasonable access to the father. She also seeks financial provision for the children – which will be dealt with on a subsequent occasion.

2. In reality though, it seems to me that this is more of a battle about control and other related and unresolved emotional issues. The mother wishes to have a court order that will enable her to continue to determine the practical arrangements for the children on a month on month basis. This is because both parents are X pilots who are subject to the vagaries of their employer’s roster system. The father for his part wishes to have an arrangement whereby the children alternate their weeks and spend time with each parent on a week on/week off basis.

Background

3. I don’t intend to go into the background of this case in any great detail save that it should be noted that the levels of conflict are very high and that as things stand at present the three adults concerned namely the mother, the father and the father’s new wife Ms H, are not communicating at anything other than at a very basic level – if at all. The children and other care givers such as the mother’s two domestic helpers seem to be caught in the cross fire.

4. The children who are the subject of this application are two boys, namely E who was born in June 2004 and who is now aged 10 and R who was born in March 2006 and is now aged 7.

5. The parties married in August 2001 in New Zealand but have spent the majority of their married life in Hong Kong. They separated in September 2011 and divorce proceedings were subsequently issued in New Zealand. The marriage was dissolved in July 2012. At the time of the divorce the mother based in New Zealand with X and the father was similarly based in Hong Kong. The father would generally commute down to New Zealand to see the children, but the children lived with the mother and she was the primary care taking parent. In January 2013 the mother returned to live in Hong Kong with the children – but continued to be based in New Zealand as that afforded her a more favourable roster. The father meanwhile formed a new relationship and in April 2013 he remarried Ms H, who also has two children. All parties are now living in Discovery Bay – the father with Ms H and her two children on a houseboat and the mother with two domestic helpers in a nearby apartment block. The children currently split their time between the two households on an ad hoc basis according to the availability of each parent. It would be fair to say that there is a high level of animosity between the mother and Ms H in particular and that communication has deteriorated between the two sides to the extent that it is now virtually nonexistent. It would be foolish to imagine that the children are not affected by this.

6. The main bone of contention seems to be that under the father’s proposal the children would be cared for by Ms H, possibly at times when the mother is also in Hong Kong and is available to look after them. The other difficulty from the mother’s perspective is that the father’s proposal could mean that neither parent spends an optimal amount of time with the children. The father for his part says that the present system is unworkable, that the mother dictates to him when he can and cannot see the children and that this arrangement involves many changes of residence over a month which in turn can lead to instability and confusion. The mother disputes this and says that the children have grown up in an environment where they are used to both parents flying and that they have no difficulty splitting their time between two households.

The mother’s proposals

7. The mother argues that she is the care taking parent and that as such she should have care and control of the boys. In so far as the practicalities of the roster system are concerned she says that:-

38. Since the Children and I moved to Hong Kong in January 2013 up until July 2013, the Respondent and I were able to basically agree on the access schedule based on...

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