N v. W

bjbj FCMC 5026 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 5026 OF 2015 ----------------------------

BETWEEN N Petitioner and W Respondent ------------------------ Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Dates of Hearing: 7 10 March 2017 Date of written closing submissions: 27 March 2017 Date of written replies: 10 April 2017 Date of Judgment: 28 April 2017 ----------------------------

J U D G M E N T (Sole/joint custody, appropriate split of time and holiday arrangements) ---------------------------- Introduction

AUTONUMOUT This trial was set down to determine the longer term arrangements for the two children of the family, S, a girl who is now aged 11 having been born on the XX August 2005 and C, her brother who was born on the XX November 2007 and is now aged 9.

AUTONUMOUT In essence the Petitioner mother wishes to have an order for sole custody and shared care of the children, on a 9/5 arrangement as at present. The father for his part seeks an order for joint custody and shared care, with the children splitting their time between the two households on a strict 50:50 basis. Although he initially proposed a week on/week off arrangement, he subsequently suggested a 2/2/5/5 split of time. There is also some disagreement over the arrangements for the school holidays although the parties do agree that the holidays should be split on a more or less 50:50 basis. However, they disagree over arrangements for the summer/Autumn mid term holiday and the Christmas holidays. Background

AUTONUMOUT The parties met in Hong Kong on New Year s Eve 1999 and married on the XX November 2002. The wife is Danish and the husband is from the United Kingdom. They separated on the 28 April 2015 when the husband moved out of the former matrimonial home and initially at least the parties were able to conduct themselves appropriately and sensible interim arrangements were reached with respect to the children through mediation.

AUTONUMOUT Unfortunately, this case has been marred by very aggressive and protracted litigation concerning the parties finances and the wife s brother has now been joined to the proceedings. There will be a preliminary issues hearing but in the meantime the parties are locked into a situation which is extremely conflicted and which effects their ability to effectively co parent the children. The father remains convinced that the mother has cheated him out of significant sums of money and that she is responsible ultimately for the breakdown of the marriage. The mother for her part reiterated several times during the trial that she is not wealthy, although her brother is and that the father is wrong in what he says. In the meantime, the mother is not working and has not done so since April 2016. She previously worked for or with her brother, depending on which version of events is to be believed. The father for his part has a share in a small consulting company. The issues

AUTONUMOUT On the face of it then there are three main issues to be determined namely: Should the care of the children be split on a 9/5 basis as at present or on a 2/2/5/5 basis as proposed by the father? Should there be an order for joint custody or sole custody? What should be the arrangements for the summer/Autumn half term holidays and the Christmas holiday?

AUTONUMOUT Since the hearing the parties have agreed that Ms G should be appointed as a parental co coordinator. This is to be encouraged given that the parties are going to need to be able to discuss some matters relating to the children on an ongoing basis regardless of the formal orders in place for custody etc. I appreciate the fact that the mother does not necessarily believe that this will help, but in any event I will expect a parental co ordinator to be in place until this matter comes back before the court in about 18 months time. I will also ask Ms G (or her replacement) to provide the court with a short report at that time.

AUTONUMOUT Further S has been offered a place at the X International School, which was her preference. That offer has been very sensibly accepted by both of the parents. It is not clear however, how the school fees are going to be funded. C will continue to attend The International Y School. It is anticipated that he will also attend the X International School in due course. The law

AUTONUMOUT The law governing applications concerning the arrangements for children can be found in section 3 Guardianship of Minors Ordinance, Cap 13, which states as follows:-

GENERAL PRINCIPLES (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;

AUTONUMOUT Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdictions, there are a number of factors, which generally speaking need to be taken into account or considered, when determining issues relating to children. Ms Rattigan for the father has referred me to them in her written opening and for ease of reference I have listed them below. Some of these mirror the checklist to be found in the English Children Act 1989. I should say at the outset that this list is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control, access and shared care and the welfare of children of generally. The checklist states that the following should be considered: (a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding); the child s physical, emotional and educational needs; the nature of the relationship of the child with each of the child s parents and with other persons; The likely effect on the child of any change in the child s circumstances; The child s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant; The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child s parents; Any harm which the child has

suffered or is at risk of suffering; Any family violence involving the child or a member of the child s family; How capable each of the child s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child s right to maintain personal relations and direct contact with both parents on a regular basis; The range of powers available to the court under this Ordinance in the proceedings in question; Any other fact or circumstance that the court thinks is relevant. I will refer to this checklist when discussing the issues below. In particular, I accept that in the context of this particular case paragraphs a, b, c, e, f, g and i are of particular relevance.

AUTONUMOUT Understandably perhaps in the circumstances, Ms Rattigan also made the following points in her opening submission: 22. S.3 GMO further provides for parents to have equal rights and authority in relation to the custody and upbringing of their children. s.3(1)(b) a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.

23. The Court should not automatically assume that Care and Control should be to a mother unless the father shows otherwise. It should be approached on the basis of equality Parental stereotypes have no place today H v. H (CACV 42/2002, Judgment dated 6th September 2002). In a situation such as the present case where the Father has been such a hands on parent and has assumed a role in caring for the children that is equal to or even more involved than the Mother, the Court should certainly not approach the case on the basis of the Mother being the parent with whom Care and Control should be vested for a greater portion of the children s time. I agree.

AUTONUMOUT Conversely Mr Egerton for the mother referred to the recent Court of Appeal decision in England and Wales In the matter of M (A Child) [2014] EWCA Civ 1755, where it was stated as follows: 56 It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of everyday life for a child is accommodated without undue emotional fallout. 57 There is no longer any need, because of the change in the legislation, to impose a shared order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent. Given her findings of fact, I cannot see how the judge could contemplate a shared care arrangement of the type that she endorsed here

AUTONUMOUT I accept that as in the United Kingdom, it is infact quite rare in Hong Kong for there to be an order for a 50:50 shared care regime and for that to be imposed by a court following a trial. However, it does on occasion happen. It is also possible for the court to make other orders, such as an order for sole custody and shared care, where the circumstances demand it.

AUTONUMOUT In this instance it is of note that the parties have now agreed to an order for shared care, presumably because they recognise that, theoretically at least, it is important for each parent to continue to be actively involved in their children s day to day lives going forward, notwithstanding the almost toxic level of anger and mistrust that exists between them. Discussion

AUTONUMOUT I must now turn to consider the issues, the law and each party s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the social welfare officer L and the psychologist Dr B who helpfully provided the court with a Child Custody Evaluation report dated the 21 February 2017. Each party s open proposals The mother

AUTONUMOUT The mother s open proposals run to some 11 pages so I will not reproduce the same here, but in essence they have been summarized by her counsel as follows: 23. The Mother s Open Proposal [P1/196] can be broadly summarised as follows: Sole custody Care and control and the Mother The 9/5 routine to continue Holidays shared equally 16. Her updated proposal with respect to the holidays was attached to her counsel s closing as follows and takes into account the fact that the children will now have slightly different holidays following S s change of school in August: Annex 1 School holidays in XIS and IYS in academic year 2017/18 & The Petitioner s proposal for Long School Holidays until C enter XIS Table 1: Long school holidays in XIS and IYS in 2017/18 C / IYS S / XIS Summer 2017 1 July 2017 31 August 2017 1 July 2017 10 August 2017 Fall break 2017 2 October 2017 6 October 2017 2 October 2017 6 October 2017 Christmas 2017 18 December 2017 3 January 2018 14 December 2017 1 January 2018 Chinese New Year 2018 16 February 2018 23 February 2018 15 February 2018 23 February 2018 Easter 2018 30 March 2018 6 April 2018 30 March 2018 6 April 2018 Summer 2018 30 June 2017 31 August 2017 8 June 2017 16 August 2017 Table 2: The Petitioner s proposal for Long School Holidays until C enters XIS The Petitioner s current proposal The Petitioner s proposal for the future (until C enters

XIS) Summer The Petitioner to have the children for the first 5 weeks of every summer holiday, so S can attend summer school in Denmark The Respondent to have the children for the rest of the summer L (The Petitioner) to have the children: 30 June to 20 July (20 days, both S and C have no school) 9 August to 21 August (12 days, S will be in school from 10 August, C on holiday) **S will not attend summer school in until C enters XIS G (the Respondent) to have the children: 20 July to 9 August (20 days, both S and C have no school) 21 August to 1 September (11 days, S will be in school, C on holiday until 31 August) Fall breaks The Respondent to have the children so long as the Petitioner has the children for 5 weeks in summer L (The Petitioner) to have the children in odd years G (The Respondent) to have the children in even years Christmas Alternated on first half/second half basis: The Petitioner to have first half in all even-numbered years and second half in all odd-numbered years The Respondent to have first half in all odd-numbered years and second half in all even-numbered years Same as the Petitioner s current proposal Chinese New Year The Petitioner to have entire holiday in even-numbered years The Respondent to have entire holiday in odd-numbered years Same as the Petitioner s current proposal Easter The Petitioner to have entire holiday in odd-numbered years The

Respondent to have entire holiday in even-numbered years Same as the Petitioner s current proposal The father 17. The father s open proposals are as follows: The Respondent / Father is seeking Joint Custody and shared care and control of the children of the family, namely, S, a girl, born on XX August 2005, now aged 11 and C, a boy born on XX November 2007, now aged 9 ( the Children ) with their time being split equally between him and the Petitioner/Mother on a 7/7 or 5/2/2/5 basis. The Father has filed his seventh and ninth affidavits as evidence in support of these proceedings relating to the Children and the Father s girlfriend, SB, has also filed an affidavit in support of the Father. The Mother is seeking an Order for Sole Custody and care and control of the Children with access to the Father on a 9/5 basis. This is against the Children s wishes and feelings and Dr B s, the Child Psychologist recommendations. The Child Psychologist Report dated 21 February 2017 recommends an equal share of the Children s time between the Mother and the Father. It is acknowledged in this report that the Children have a stronger attachment to the Father than the Mother and confirms that the Children wish to share their time equally between the Father and the Mother. Dr B has made a number of recommendations to assist the Children in coping with parental conflict and to help the Mother and

the Father to co-parent and communicate more effectively with each other with regards to the Children. The Father is happy to implement the measures recommended by Dr B and has included undertakings, recitals and directions to that effect in a draft Consent Summons sent to the Mother s solicitors by the Father s solicitors on 22 February 2017 in the hope to settle this matter outside of Court. The arrangements for who should have care of the Children during the school holidays is in large agreed save for, the Mother is seeking to spend the first five weeks of the summer holidays with the Children, leaving the Father with only three weeks. The Father is seeking an equal split of the summer holiday but agrees to the Mother spending the first half of the holiday with the Children each year. It is agreed that the Christmas holidays shall be split equally between the parties, however the split is in dispute. The Father celebrates Christmas on Christmas Day, and the Mother, being from Denmark, celebrates Christmas on Christmas Eve with the celebrations ending at around 4 or 5pm. The Father therefore proposes that the Children spend the first half of the Christmas holiday with the Mother each year and the second half with the Father, with handover taking place on the evening of Christmas Eve. That way, the Children have the opportunity to celebrate Christmas with each parent every

year. If Christmas Eve does not fall on the middle day of the holiday, then the Father proposes that the parent losing time with the Children will spend additional days with the Children at the end of the holiday. The Father proposes that all mid-term breaks are shared equally between the Father and the Mother with the Children spending the first half of the holidays with the Mother and the second half with the Father and alternating thereafter. It is agreed that Chinese New Year and Easter holidays shall be alternated each year with the Mother spending Chinese New Year with the Children on all even numbered years and Easter with the Children on all odd numbered years. The Father agrees with Dr B s recommendation that C should undergo a full psychoeducational assessment to better understand his attentional and academic issues. The experts The Social Welfare officer s reports 18. There have been two reports filed, the first dated the 1 March 2016 and the second updated report dated the 27 February 2017. It is of note that in this instance there are two reports, with almost identical facts but slightly different conclusions, from two different social workers. I have some sympathy with them. This is a difficult case and neither set of recommendations can be said to be clearly wrong. 1st Social Welfare Report dated the 1 March 2016 19. The first Social Welfare Officer, Miss T

recommended joint custody and maintaining the present 9/5 structure. She explained this thus: 45. The parents also had different views on the care and control and access issues. Ms N [the mother] requested to maintain the present shared care pattern of 9 to 5 days routine while Mr. W [the father] asked for equal splitting, i.e. 7 to 7 days on a biweekly basis. Ms N explained that she did not want to upset the children s current routine which was already well established. She also had little trust on the father s care ability and her belief of his rage problem. Mr. W believed that the mother passed negative influence on the children that he should gain more time to reduce the negative impact. He also emphasized that equal sharing was based on the children s own views. Although the children stated clearly that they wished to stay with the parents, each for one week, I do not consider that their view was determinative, given their young age and probably the loyalty conflict they have to face. Under the present circumstances, I would support the status quo, i.e. to keep the existing 9 to 5 days routine on a biweekly basis. Such recommendation is based on the consideration of the children s adjustment, the continuity of the current schedule, the existing child care support, the positive comments from relevant professionals on the mother s side and to avoid creating further dispute arising from the change of routine. For the school holidays, it is suggested to be shared equally. While the existing 9 to 5 days routine is supported, further review could be conducted, preferably when both children became more mature and independent, say after their entering of secondary schooling or at the time under mutual agreement of the parents.

20. She also recommended that the parties consider returning to mediation and that psychological support be provided for the children. I should add that the children are currently receiving therapy on a weekly basis. It is agreed that this should continue. 2nd Social Welfare Report dated the 27 February 2017 21. Ms L also recommended joint custody of the children, notwithstanding the very high level of ongoing conflict between the parents: 23. Concerning the issue of custody, though Ms N requests sole custody, she is willing to inform and consult with Mr W on major decisions affecting the Children. Mr W wishes to have joint custody of the Children. He is willing to hold a positive and cooperative attitude to co-parent with Ms N and work together with her on the Children s major life decisions. In view of the on-going strong involvement and offering of direct care to the Children by both parents in this case, I would recommend joint custody for the Children as joint custody is considered to be desirable to let both parents have active involvement in the upbringing of their children and promote their continuing parental responsibilities, which is beneficial to the children s well-being. Though joint custody requires that both parties have harmonious and effective communication, which at the moment seems yet to be achieved, personal disputes and different perceptions between the parents concerning parenting styles should not hinder the goal of achieving this end or deny either party s rights or obligations to contribute to the Children s development or deprive their rights to enjoy the participation of both parents in their major life events and decision-making.

22. However Ms L differed from Ms T in that she recommended that the children s time be split 50:50. Her reasons for this are set out as follows: 24. Concerning the issue of care and control, I would like to take into the views and welfare of the Children as my paramount concern. Both S and C are mature enough to comprehend the issue and give their views. They clearly express that they definitely want to enjoy equal time with both parents. They are at their adolescent stage where parents allowance for liberty of independent thinking and respect for their autonomy and self-determination are vital in bringing forth their healthy development of self-esteem and the sense of ownership of responsibility. It is thus believed that respecting the Children s choice of having equal time with both parents would do them good, especially when they have already been suffering a lot during these years of parental dispute, which is tearing them apart and confusing them. Coupled with the fact that both Mr W and Ms N are very good, caring and dedicated parents whose true love for S and C is beyond doubt, I would like to take the Children s strong wish of having equal share of time including long holidays between the parents.

25. In view of the above, the Investigating Officer would like to recommend that joint custody and shared care and control on equal basis of the Children, S and C be granted to Mr W and Ms N. It is hoped that both Mr W and Ms N, being committed and devoted parents, would let go of their differences and find the common grounds for the best interests of the Children. After all, the Children are moving towards the teenage stage and going through the growing pain and have already suffered a lot from the parental disputes. There is no room for them to accommodate further conflicts of his parents. The effect of such endless and likely trivial dispute is even more harmful and detrimental to a child than any imperfect care or parenting. It does no help to minimize the impact of divorce but instead letting the harm grow. The Child Custody Evaluation Report dated the 21 February 2017 23. Dr B and her team filed a very helpful and sobering report at short notice. Although there had been some misunderstanding about some of underlying facts (i.e. that the parties currently had joint custody and joint care and control) there can be no doubt at all that this report was extremely helpful, given that it identified the extent to which the children are currently at risk.

24. In summary Dr B s report says this of S: SW The PORT is particularly useful in custody decision making because it sheds light on the degree to which a child actually seeks interaction with a given parent, and reflects the degree to which he or she has been able to work out a comfortable, conflict-free style of relating to each parent. PORT data suggest that, overall, S s parent of choice is her father, although it is clear that she also deeply values her relationship with her mother. Unconsciously, it appears that S feels she can access a greater range of interpersonal resources in the real or psychological presence of her father. It is of note that on a conscious level, S was extremely unwilling to indicate a preference for either parent. Both of her parents agree that S experiences a clinically significant number of physical symptoms (e.g., aches and pains), although her mother believes them to be more of a concern than her father. It is important to recognize that psychosomatic symptoms often result from unexpressed emotional problems, possibly related to ongoing family conflict. Her father further notes that S can be rather aggressive and argumentative at times, which could indicate that S feels more comfortable expressing her feelings when she interacts with her father while she tends to suppress them when she is with her mother. Both parents agree that S is adept at

expressing her ideas and communicating with others. S herself feels unsupported, isolated and lonely. She further reports that she feels that she has difficulty maintaining close relationships with and trusting others and that she is often misunderstood. Based on her ratings, she indicates levels of unhappiness, sadness, and stress that may impede her functioning. Along with high levels of negative affect, S reports low levels of self-confidence and self-mastery. It is also of note that S reports fleeting thoughts associated with suicidal ideation. Further, it appears that S has a rather negative and distorted view of her own behavior that is not in alignment with the positive reports of her parents and/or teachers.

25. And this of C: CW When C drew his mother and father, he was fundamentally drawing himself as he psychologically exists in relation to them. The drawing portrays the autoplastic adjustments C has had to make to ensure continuance of each relationship. C shading his father s representation could indicate his relationship with his father elicits an anxious response. However, given that he seeks the same level of psychological closeness from each parent, the anxiety experienced by C in relation to his relationship with his father does not appear to negatively affect C s willingness to interact with his father. Subsequently, it is possible that C s fears are not inherent to the relationship but rather, external factors impacting the relationship. He also appears to feel that his father is psychologically excluded or held at a distance from the wider family unit. It is of note that on a conscious level, C refused to choose between his parents and unconsciously he desires similar levels of psychological closeness with each parent. C does not report any clinically significant feelings of anxiety, sadness or anger but he appears to have significant behavioral problems as reported by both parents, a corroborative source and his teachers. While behavioral problems can be residual side effects of underlying emotional difficulties or indicative of an adjustment issue, C s data indicate

he could also have attentional problems which may hamper his ability to concentrate at school as well as appropriately manage his behavioural responses. A full psychoeducational assessment would be helpful to identify areas of strength and weakness in order to assist C achieve his cognitive and academic potential in addition to gaining more enjoyment from being at school. C s high score on the Atypicality scale may be of clinical interest and warrants further investigation by his therapist. He also endorsed items suggesting he harbored a desire to hurt himself and that he was bothered by thoughts about death.

26. In line with the children s stated preference Dr B recommended that the parents have equal time. She also made a number of very sensible recommendations, which lie outside the perimeters of this court to implement, but which I have attached to this judgment at Annex A. It is strongly recommended that the parties adopt these recommendations. The father has already proposed this in his submissions. I agree that this would be sensible and I am hopeful that the mother will likewise agree to implement them as best she can. The character of the parties The mother 27. In court the mother presented as being someone who was under an enormous amount of pressure. She described very clearly the very aggressive and negative way in which the father interacts with her. She was also clearly distressed when she acknowledged the effect that the conflict was having on the children. It was of note that she tried to reach out to the father on several occasions and that she used the court process in order to try to do this. It is clear that she loves her children very much. I have no doubt at all that she is a very good mother. The father 28. Similarly, I have no doubt that the Respondent is also a very good father and that he loves his children dearly. I was though very concerned by some of his behaviours and the way in which he sought to justify them. For example, he obviously felt justified

in the way that he behaved towards the mother. It was clear that he was unable to be courteous or polite towards her even for the children s sake. To state the blindingly obvious it is not acceptable to not greet the mother either directly or by e-mail or to be openly hostile towards her. For the avoidance of doubt this is not helpful and cannot assist. If the parties wish to co parent their children successfully then at a most basic level, this sort of behaviour has to stop. It is hardly surprising that the mother finds it hard to communicate with the father when faced with such a barrage of unkindness and open hostility. The father appeared to have little insight into the effect that his behaviour was having on the mother and on the situation as a whole. This was a matter of some considerable concern. Should the care of the children be split on a 9/5 basis as at present or on a 2/2/5/5 basis as proposed by the father?

29. At present the children are with their father for five nights per fortnight and with their mother for the remaining nine nights as set out below. This means that the children spend every Monday and Tuesday with their mother and every Thursday with their father and alternate weekends with each parent. The mother wishes this arrangement to continue. Week 1 Mon Week 2 Mon 30. Although the father originally proposed a week on/week off regime he later amended this, in line with the recommendations made by Dr B to a 2/2//5/5 split as follows: Tues Thurs 1st Week 2nd Week This would mean that the children will continue to spend every Monday and Tuesday with the mother and that they also continue to alternate weekends. The only difference is that they would also spend every Wednesday AND Thursday with their father an actual difference of one night per week.

31. Both Dr B and Ms L fully supported this proposal. It is also said to be in line with what the children want. Apparently they currently perceive this to be fair and I accept that rightly or wrongly this is an important consideration, and one that the court is duty bound to take into account. Consequently, notwithstanding the fact that a 50:50 split is generally speaking not considered to be a sensible outcome where the levels of conflict are very high, as here, I will nevertheless make an order for a 50:50 split of time. I should also add that I did ask the father what his approach would be, if for example, in a few years time, S in particular asked to spend more time with her mother. He said that in that event he would not stand in S s way. I think that this is important to note.

32. Rather late in the day the mother also proposed, as an alternative, that her original 9/5 structure remain with the caveat that each parent have one child with them on a Monday, so that each child could benefit from some one on one time with each of their parents.

33. Although I can see some sense in this, overall I am not persuaded that tinkering with the present 9/5 arrangement is going to particularly assist. Consequently, I will make an order that on a shared care basis the children s time be split between their parents on a 2/2/5/5 rota. Should there be an order for joint custody or sole custody?

34. This is a little more difficult to determine. The mother originally proposed that there should be an order for joint custody as can be seen from the prayer in her petition. But as things have progressed she has sadly come to the conclusion that joint custody is simply not feasible given the way in which the father interacts with her. Having seen both parties in the witness box I have some sympathy with her in this.

35. Ms Rattigan says that the mother s approach is borne out of a misconception about the definitions of sole and joint custody. In her closing submission she puts it thus: Joint/Sole Custody The Father seeks an Order for Joint Custody as this properly reflects the role that he has always had and continues to have in the Children s lives. While the Mother has sought to downplay his involvement with the Children and to exclude him, it is very clear that he has been very involved, as he has said all along from the outset. This was confirmed by Dr. B in reference to the very strong relationship that he has with both of the Children and his outstanding range of parenting awareness. It is apparent that the Mother wishes to have Sole Custody for all the wrong reasons. In her Affidavit at [B2/40/ 62] she states: I am convinced that the Respondent will continue to thwart my attempts to secure a place for S out of his hatred of me and his complete lack of reality about getting a child into an international school in Hong Kong. If the Respondent and I have joint custody, I am gravely concerned that he will continue to create roadblocks for the children in the similar manner in his attempts to get back at me. An order for Sole Custody will not make any difference to obtaining a school place for the Children if the Father objects to the Mother s choice. The Mother further says in her

Affidavit at [B2/46/ 75]: If sole custody is granted to me, this will allow me to continue making all the major decisions regarding the children such as schooling and medical and avoid any roadblocks that I anticipate the Respondent will create for me. An order for Sole Custody will not allow this if the Father does not agree and it is a worrying feature of this case that the Mother wants Sole Custody so that she can make these decisions without the Father s consent. She will of course need to have his consent for these important matters regardless of whether she has Sole Custody or not. Given the Mother s history of excluding the Father and of not consulting or informing him, there is a clear danger in this case that an order for Sole Custody will give the Mother a sense of entitlement to continue to do this. Her words to the SWO are a cause of great concern if she is granted Sole Custody. She thus wishes to have sole custody and keep the 9/5 arrangement so that they can be exposed to Mr. W s influence less often and to avoid re-adjustment. [B1/215/ 9] Ms. L confirmed in her oral evidence that this is what the Mother had actually said to her.

36. Although what Ms Rattigan says here is true it is also true that if the mother had sole custody then she would be able to make decisions without the father s express consent, but following consultation with him. If the father disagreed with any decision made by her then it would be open to him to issue the appropriate application at court in order to challenge that decision. I should add that it is never sensible or indeed cost effective to return to court on a regular basis with respect to such decision making.

37. I should add that I do not accept that the mother has deliberately set out to exclude the father from the children s lives and indeed even if that had been the case it will not now be possible with a 50:50 split of time in any event.

38. I am though particularly concerned about the father s lack of involvement with choosing a school for S and how he seemed happy for the mother to do all the leg work and to take all of the financial responsibility when in truth this was an active decision to be taken by both parents. The father does not simply have a right of veto, as with the offer of a place at Z School if he wants joint custody he has to actively be part of the decision making process. He also has to be financially responsible for any of the decisions made regardless of the outcome of the preliminary issue hearing. I am also concerned about the father s reaction to little things including for example the situation which arose when S had to have two teeth removed at short notice. It is suggested that the father s reaction is understandable given the mother s behaviour in the past. For the record I do not accept this.

39. Consequently, I have decided to make a rather unusual order given the recommendations made by both social welfare officers and Dr B, I will make an interim order for joint custody to be reviewed in 18 months time and after the conclusion of the preliminary issues trial. I had considered making an order for sole custody but accept that longer term it would be in everyone s best interests if this could be avoided. I will expect both parties to use this interim order as a starting point for any future decision making and genuine cooperation, when it comes to their children. I will expect both parties to be civil to each other on the very rare occasions that they will have to have direct contact. They should also be civil when using the wizard soft ware and when liaising with Ms G. The welfare of their children quite literally depends on it. What should be the arrangements for the summer/Autumn half term holidays and the Christmas holiday? The summer holidays 40. As set out above the mother s position initially was that she should have the first five weeks of the school summer holiday so that she could take the children to Denmark for five weeks, in order that S and ultimately C could participate in summer camp with a view to learning Danish etc. and to then have a summer holiday with her family. Ultimately the mother wants the children to be able to avail themselves of the benefits of being Danish including affordable tertiary education. This seems sensible in the circumstances. In lieu of the extra week she suggested that the father have the children for every Autumn half term. The father disagreed and suggested instead that both the school summer holiday and half term be split 50:50.

41. However, things have now shifted a little given that S will start the X International School in August and consequently the mother has revised her position as set out in paragraph 16 above.

42. In view of that I will make an order that the current summer school holiday that the children have in common will be split 50:50 with the mother having the first half and the father having the second half as suggested by the mother. For the avoidance of doubt this will mean that this year the mother will have the children from the 30 June 20 July and the father will have the children from the 21 July 9 August. Further it is directed that once both children start attending the X International School and they have the same summer school holiday that the mother may then have the children for an additional week so that they may both attend summer school in Denmark. It is unclear whether in practice this will mean that the mother will have the children for five weeks or for a longer or shorter period. It is of note that this year the X School broke up on the 8 June and the children will return to school on the 10 August i.e. a period of approximately 9 weeks. In that event the mother would have the children for the first five weeks and the father would have them for the remaining four and the father will also have the children for every Autumn half term break. Until then though the school summer holiday will be split 50:50 and the Autumn half term will be alternated with the mother having the children in all odd years and the father having the children in all even years. The

term time routine of 2/2/5/5 will commence once S starts school on the 10 August. Christmas school holiday 43. The father s proposal is set out in paragraph 17(6) above. With respect it seems to me that this is likely to cause a great deal of unnecessary stress to everyone involved. Going forward I will make an order in the terms suggested by the mother i.e. by alternating the first and second half of the holiday with the father having the first half in all odd years starting this year in 2017 and the second half in all even years and the mother conversely having the first half in all even years and the second half in all odd years. The remaining holidays 44. These do not appear to be in dispute but for the avoidance of doubt the Chinese New Year and Easter holidays shall be alternated with the Mother spending Easter with the children in all odd years and Chinese New Year with the children in all even years and conversely the father spending Easter with the children in all even years and Chinese New Year in all odd years. The checklist 45. In so far as the check list is concerned the following is of particular note: (a) The ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding; 46. It is clear that the children both wish their time to be split equally between their parents. Indeed, S asked Dr B to tell me that directly in

court. Although their views are not determinative I accept that they should be given significant weight. The child s physical, emotional and educational needs; 47. I accept that the children s physical, emotional and educational needs can be met by both parents. However, in order for this to be optimal both parties should follow and adopt the recommendations made in Dr s report. The nature of the relationship of the child with each of the child s parents and with other persons; 48. I accept that both children have a close relationship with each of their parents and that this should be supported by this order. It is of note that they both like the father s new partner and that she appears to be a positive aspect of the current situation. The likely effect on the child of any change in the child s circumstances; 49. I agree that the addition of one overnight per week to the children s present schedule is likely to have little practical effect on their day to day life, save that they are likely to perceive that this is a fair outcome in all of the circumstances of the case and that as such it is likely to have a better chance of success. The child s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant; The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child s parents 50. I

accept that notwithstanding the relationship between the parents themselves, that each are good and loving parents who ultimately only want what is best for their children. As indicated above I do have some concerns about the father s approach for example to choosing a school for S. Any harm which the child has suffered or is at risk of suffering; 51. It is now clear that both children are suffering as a result of the present situation and that change is necessary if the potential risk of the ongoing litigation is to be minimized. Again I refer the parents to Dr s recommendations in that respect. Any family violence involving the child or a member of the child s family; How capable each of the child s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; 52. I accept that both parents are capable of meeting the children s needs, although as I have said finances are a matter of some considerable concern especially in the short term. (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child s right to maintain personal relations and direct contact with both parents on a regular basis; The range of powers available to the court under this Ordinance in the proceedings in

question; Any other fact or circumstance that the court thinks is relevant. Costs 53. Although this is a very high conflict case there is nothing here which takes it out of the realms of the ordinary in so far as costs are concerned. Consequently, I will make an order nisi to be made absolute in 14 days time that there be no order as to costs. There shall be certificate for both counsel and I thank them for their assistance in this matter. Order 54. Consequently I shall make an order as follows: i) There shall be an interim order for joint custody of the two children of the family namely S, a girl born on the XX August 2005 and C, a boy born on the XX November 2007 such order to be reviewed in 18 months time once the preliminary issues matter has been concluded. ii) There shall be an order for shared care with the children splitting their time between the two households on a 2/2/5/5 basis during term time. iii) The school holidays shall be divided between the parties on a 50:50 basis as set out in paragraphs 40 - 44 above. iv) An updated Social Investigation Report shall be called for in 18 months time. v) A report from Ms G (or a replacement parental co coordinator) shall also be called for in 18 months time. vi) There shall be an order nisi to be made absolute in 14 days time that there be no order as to costs. There shall be certificate for counsel. IT IS FURTHER DIRECTED

that the parties adopt and follow the recommendations made by Dr B as set out in Annex A attached hereto. In particular, it is directed that C have a full psychoeducational assessment and that a copy of that be filed at court within the next 6 months. ( Sharon D. MELLOY ) District Judge Mr Robin Egerton instructed by Robertsons for the Petitioner mother Ms Mairead Rattigan instructed by Withers for the Respondent father

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CACV Judiciary English.dot Wanching Yiu Microsoft Office Word Judiciary

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