CS v WCT [2020] HKFLR 823, [2020] HKFC 276

Robert Pang SC, Eric Leung, and Gigi Ho appeared for the respondent in the Family Court in CS v WCT [2020] HKFLR 823, [2020] HKFC 276.

The parents in this case were married in 2013. They had two children, a boy aged 4 and a girl aged 3. Both parents were qualified solicitors. Both were working and both claimed to be primary carers to the children. The case had started with wardship proceedings and an ex parte application by the mother (M) for interim care and control which was resolved by consent. There were also cross allegations of physical assaults which had resulted in occasions in the Police being called to the FMH.

The mother sought sole custody, care and control to her with defined access to the father (F) during term time, generous access during school holidays. She gave an undertaking to inform and consult the F in respect of the son’s schooling and residence as well as significant health matters. The F sought joint custody with shared care and control on an equal basis. The Social welfare reports supported the F following consideration of the child’s performance at school and social skills. The Clinical Psychologist supported the SWO’s reports.

The M argued that there was a complete breakdown of trust and communications, the F’s work commitments made him unable to comprehensively look after the children and he relied heavily on domestic helpers. The conflict rendered joint custody unworkable.

Held, joint custody, shared care and control on an equal basis on a seven to seven day routine on a bi-weekly basis, day access to the parent without the children on Wednesdays, daily evening video access calls; school holidays to be split equally or as agreed, overseas trips to be agreed by both parents:

The mother had not opposed parallel parenting in principle and the court accepted that the parties currently would most probably find it difficult to communicate in a traditional shared care arrangement however they had sufficient communication skills to communicate for a parallel parenting arrangement as currently reflected in the interim order. [66]

The M had been critical of the SWO’s report but had considered the first report favourably which had provided for interim joint custody, care and control, with a caveat in respect of the F’s employment. [75-77]

Both parties had at some time in the proceedings sought sole and joint custody, both parents had at some time in the proceedings proposed joint custody and there had been an order for interim shared care since May 2019; all of the reports recommended joint custody. [80-82]

The court was conscious of the appropriate caution provided by the authorities in relation to aspirational orders. However in the context of this case, to give either parent sole custody would create an imbalance in the dynamics of the parents’ inter-relationship as parents which would lead to an increase in disagreements and “power play” which would not be in the best interests of the children. In the circumstances of this case it would be a benefit to the children if the parents stood as “equals” in the context of custody with neither parent being a supplicant to the other. [83]

The M’s challenge to the reports were not accepted and the recommendations were followed. The arrangements reflecting parallel parenting within the interim order was to continue. To change the current arrangements which were working well from the children’s perspective would not be in their best interests. [85-88]

The parties should have exchanged Form Hs prior to the trial (nor had they prior to the CDR in December 2019). Practice Direction 15.13 was quite clear as to the requirement of filing and exchanging Forms H to enable parties to be fully aware of not only their own costs but equally and as importantly the cost incurred and to be incurred by the other party: Practice Direction 15.13. [89-90]

No order as to costs: LCH and JMC [2019]. [91]

[The above is excerpted from the headnote to the report in HKFLR.]