Case Detail

FCMC 809/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 809 OF 2004

________________________

BETWEEN

	W	Petitioner (Judgment Creditor)
	and
	F	Respondent (Judgment Debtor)

Coram: Her Honour Judge Sharon D. Melloy in Court

Date of Hearing: 18 December 2014

Submission from both parties: 26 January 2015

Further supplemental skeleton submission from the Petitioner: 2 February 2015

Date of Judgment: 11 February 2015

________________________

J U D G M E N T
(Leave to enforce arrears and Judgment Summons)
________________________

Introduction

1. There are three applications before me that now require adjudication, namely a summons dated 5 March 2014, issued by the wife, seeking leave to enforce arrears exceeding 12 months before the date of two judgment summonses; in addition, there are the two judgment summonses just referred to, the first dated 5 March 2014 and the second dated 24 November 2014. In summary, the wife is seeking to enforce the sum of $1,556,455.20. This represents the difference between the maintenance actually paid by the husband since 19 April 2007 and the sum said to be due to the wife, including an annual increase in the maintenance payments in line with the Consumer Price Index. In addition, interest has accrued on the sum owed, (and I would just add that the rate of interest on judgment debts is determined by the administration and circulated on a regular basis by the Chief Justice to all judges and practitioners).

Background

2. I do not intend to go into the background in any great detail, but I think it would be helpful just to summarise where we are at. On 27 March 2012, the Court of Appeal delivered its judgment, in which it did the following:

(a) it overturned the February 2011 order of Judge C K Chan that had originally reduced the maintenance payments payable to the wife for the three children of the family;
(b) it dismissed the husband’s original application to vary the maintenance;
(c) it restored the original 2006 consent order;
(d) it ordered that the husband repay the wife the sum of $552,500; and
(e) it awarded the wife the cost of the appeal.

3. The sum of $1,556,455.20 represents the balance now said to be due to the wife pursuant to the orders, and taking into account, firstly, all sums paid by the husband to date; secondly, the Consumer Price Index rises; thirdly, interest; fourthly, costs of the summons; and lastly, travel expenses for the judgment debtor.

4. Although my original intent had been to deal with this matter quickly, unfortunately the situation became somewhat delayed over the Christmas period. When I came back to the case I discovered that the husband had sought leave to respond further to the oral submissions made by counsel on 18 December. In the interest of fairness I gave the husband leave to file a brief summary as requested. Given the time lag, I also listened to the tape recordings of the hearing, and was concerned that an incorrect indication may have been given by me on the issue of interest. Consequently, both sides were given leave to file further submissions on this point. Both the husband and the wife filed a supplemental submission on 26 January 2015, and leave was also given to the wife to file a further submission in response to points raised by the husband. That was dated 2 February 2015.

Offers of settlement

5. Turning next to any offers of settlement, prior to the hearing the husband in fact made the following proposal, which I will just read out for the record. This is in an email dated 17 December 2014. He said:

“I therefore propose:
(i) in relation to future child maintenance to pay $105,333.86 with effect from 19 December 2014, and that this amount be subject to future CPI adjustments on 19 April of each year;
(ii) in relation to claims for past CPI adjustments, whilst reserving my right to assert that these adjustments are either waived or foregone or in any event surplus to costs incurred by your client, I propose nevertheless to settle the arrears which accrued after the Court of Appeal decision in 2012 in respect of the entire period from April 2012 to November 2014 in the amount of $578,712. This will be paid by an instalment of 50,000 on 19 December, with the entire balance on or before 1 December 2015, such outstanding amount to accrue interest from March 2015.”

6. This proposal was not accepted by the wife. She seeks the full amount of $1,556,455.20.

Leave to enforce the arrears of maintenance

7. As stated by Ms Rattigan in her submission, it seemed to me that that very helpfully and succinctly summarised the position, so I will refer to sections 36 to 39. Ms Rattigan said that section 12 of the MPPO provides that the leave of the court is required to enforce maintenance payments which are due more than 12 months before the date of commencement of the application for enforcement, and she then cites section 12, which I will not repeat here. She goes on to say that the starting point is that arrears exceeding 12 months will not be enforced unless there are special circumstances, and she cites two cases, CYM v YML and CSL v WWK. At paragraph 38, she continues:

“Whilst the historical basis for this rule was that if an applicant could wait for a year before bringing proceedings for enforcement, it likely meant that he or she did not need the money. It has been said in CSL v WWK:
‘In modern times, more flexibility is shown because the wife might have savings of her own which she might use for a period of time, and she would be expected to seek reimbursement by a large single payment from the husband later on’.”
At paragraph 39, Ms Rattigan continued:
“Having said this, the Court of Appeal went on to state:
‘Nonetheless, the court should still pay regard to the extent the applicant has taken to assert her rights. The fact that a person liable to pay the maintenance is an irregular or reluctant payer is not unusual circumstances justifying a departure from this rule’.”

8. In this instance, I accept entirely that there are special circumstances which warrant leave being given to the wife. I accept that the wife did everything within her power to settle these matters without returning to court and that these proceedings, i.e. these enforcement proceedings, have, in effect, been a last resort. I also accept that there has been inevitable delay because of the appeal process and mediation, both of which were ongoing for a considerable period of time.

9. In the husband’s further submission dated 26 January 2015 he does not deal with the main legal arguments pertaining to the enforcement of arrears which are more than 12 months old. Instead, he concentrates on the CPI adjustments and why these were not implemented. Generally speaking, I do not accept these are valid arguments in relation to the leave to enforce point.

10. For the avoidance of doubt, therefore, leave is given to the wife to enforce the arrears of maintenance that are over 12 months old.

Judgment Summons

11. That leaves then the issue of the judgment summonses. Turning first to the law, the judgment debtor is required to show cause. He has to show the court why he should not be committed to prison for contempt. The court needs to ascertain whether he had the ability to make the payments ordered and whether he has wilfully failed to do so. The judgment creditor needs to prove this beyond reasonable doubt.

12. The court has the power to commit a judgment debtor to prison for up to three months or to commit, suspended upon payment of the outstanding debt either in its entirety or by instalments, or to adjourn sine die with liberty to restore.

13. When considering the possibility of imprisonment, the court is bound by the claim made in the original judgment summonses. In other words, the court looks to the amount that the judgment creditor says is owed at that date, and the judgment debtor is put to strict proof in relation to those amounts. If the court is considering the possibility of making a new order in which the judgment debtor is, for example, asked to pay by instalments, then it is possible to calculate the outstanding amount due up to date, or to remit or suspend or in some other way to vary the amounts owed.

14. In this case, the wife issued two judgment summonses. I accept that if one includes the arrears exceeding 12 months, which I do, that the total sum due is, as stated previously, $1,556,455.20.

Interest

15. The husband originally raised an issue re the interest payable on the sum owed. This point is covered by section 53A of the Matrimonial Causes Ordinance. Again I do not intend to repeat the whole section, but subparagraph (vi) says:

“The judgment debtor who considers that he has reasonable grounds not to pay the interest under subsection (ii) may, within a reasonable time after having knowledge of the requirement to pay, apply by summons to the court not to pay the interest and shall set out the grounds of the application.”
Subsection (vii) then just goes on to cite the basis upon which that application may be made.

16. In this instance, the husband did not issue the requisite summons in accordance with this section. In any event, although it might be argued that the husband had a reasonable excuse not to pay following the judgment of C K Chan, there is no doubt that this position changed once the Court of Appeal had handed down its decision on 27 March 2012. From that point on the husband should have been left in no doubt about his financial obligations to pay maintenance including the Consumer Price Index annual adjustment. The husband, however, chose not to pay what was due and owing to the wife for a variety of different reasons, including what he says were cash‑flow difficulties and his reluctance to sell assets at what he considered to possibly be an under value. The fact that interest then accrued on the outstanding sum is an inevitable consequence arising out of that failure to pay. Thus, even if the husband had followed the correct procedures, i.e. if he had issued a summons regarding the interest payments, it is very unlikely, in my view, that the interest would have been reduced in any way.

17. As I have said, the husband has also argued that he had cash‑flow difficulties which made punctual payments after 27 March 2012 difficult. Although that may have been true, there was never any real argument concerning his significant asset base. In 2011 his assets were estimated at 65 million, and at 60 million in 2013. He estimates that this had fallen to 51 million by the time of the hearing, which is still a significant sum. In such circumstances, I can see no basis for waiving the interest payable.

Proposals going forward

18. The wife seeks a suspended prison sentence. She does not, however, wish to imprison the husband, but she does wish to be paid. The difficulty is that most of the husband’s assets remain outside of the jurisdiction, and he is asking for significant time to pay.

19. The husband says that he intends to sell two properties, the first a converted barn in the United Kingdom, for 135,000 sterling, and the second, a property in France for €2 million. He wishes to be given time to pay, and offered 1 December 2015 as the backstop date for payment.

20. In that regard I would also like to refer at this point to the injunction that was granted on 28 October 2014 in relation to the Sai Kung property, Order 5 of that order states as follows:

“The respondent, whether acting by himself, his employees or his agents or otherwise howsoever, be restrained from in any way making any dispositions and/or otherwise taking any steps to dissipate and/or diminish the net equity of the property at Inland Lot XXX DDXXX XXX Yung Shue O, Sai Kung, New Territories, Hong Kong, including any conveyance, assurance, gift, mortgage or remortgage of the property, without leave of the court or prior written consent from the petitioner.”

21. This injunction was extended on 18 November 2014 until further order.

22. The wife’s concern is that on her case, the husband has moved assets beyond the reach of the court, leaving only the property in Sai Kung as an available asset against which any future arrears might be enforced. Thus she was very reluctant to agree to the remortgage of the Sai Kung property as another alternative way to raise funds. If there was going to be such a remortgage, she asks that it be limited to the amount of money that is currently due and owing to her. The husband agreed that this was an option that could be looked at, although admittedly he was now looking at other options, as set out above.

23. In addition, the wife has concerns about security for payment in the event that there is an order that payment be made by a certain date.

Conclusions

24. I have considered all of those competing points when coming to the following conclusion. I will therefore make an order as follows:

(1) leave be given to the petitioner/judgment creditor to enforce the arrears due under the court order dated 9 June 2006 for more than 12 months in the sum of HK$1,556,455.20.
(2) Upon examination on oath of the judgment debtor in open court, this court finds that:
- pursuant to the order dated 9 June 2006, the judgment debtor was ordered to pay the judgment creditor monthly maintenance for the three children of the family, such sum to be increased annually in line with the Consumer Price Index. This order was confirmed by the Court of Appeal on 27 March 2012. The judgment debtor has failed to make such payment and there is due and owing under the said orders, the sum, as I said, of $1,556,455.20, inclusive of the costs of the summonses.
- The judgment debtor has not shown cause why he should not be committed to prison, as he had the ability to make the payments ordered but has wilfully failed to do so, and he is in contempt of this court’s order of 9 June 2006 and 27 March 2012.
- The judgment debtor be committed to prison for a period of one week suspended provided that he pays the judgment debt and costs in the total sum of $1,556,455.20 on or before 30 September 2015.
- Further, the respondent’s property in Sai Kung shall be held as security for that payment. The injunction dated 28 October 2014 shall remain in force pending payment of the outstanding sum due.
- For the avoidance of doubt, the costs of these enforcement proceedings be to the judgment creditor to be taxed if not agreed on an indemnity basis.
- A warrant of arrest shall be issued upon the solicitors for the judgment creditor filing an affidavit of non-compliance with the terms of the suspension.
- Liberty to apply on an urgent basis.

	S. D. Melloy
	(District Judge)

Ms Rattigan, instructed by Haldanes, for the petitioner (judgment creditor)

The respondent (judgment debtor) appeared in person

FCMC 809/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 809 OF 2004

________________________

BETWEEN
	W	Petitioner
and
	F	Respondent
________________________

Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 18 November 2014

Date of Ruling: 20 November 2014

________________________

R U L I N G
(Strike out application)
________________________

1. On the face of it, the background to the present application is fairly typical. The petitioner wife issues a judgment summons for non-payment of the children’s maintenance (see the judgment summons dated 5 March 2014). The respondent husband responds with an application to vary the maintenance down (see notice of application to vary dated 6 June 2014). In reality, however, this application is far from typical and comes at the end of what appears to be 10 years or so of fairly constant litigation following an eight-year marriage. There are also three children of the family who are now aged 16, 14 and 12 years respectively, and who have grown up in the shadow of this litigation.

2. The present application before the court is the wife’s application dated 25 August 2014, seeking to strike out the husband’s notice of application to vary, on the basis that it is frivolous or vexatious; it may prejudice, embarrass or delay the fair trial of the action; or it is otherwise an abuse of the process of court. She also seeks to rely on the court’s own ability to regulate its own affairs in this respect.

Background

3. By way of background to this application, I should add, in short, and in the words of Ms Rattigan - and I am referring now to the skeleton submission beginning at paragraph 6:

“6. The financial proceedings were settled following mediation and a Consent Order was made based on the mediation agreement by Judge C K Chan on 9 June 2006. There was a division of assets on a clean break basis between the parties and the Respondent was ordered to pay to the Petitioner monthly periodical payments for the maintenance of the children of the family in a sum of $82,500, i.e. $27,500 per month per child. The payments were also ordered to be subject to the annual increase of the Hong Kong Consumer Price Index (CPI).”
“8. In January 2010, the Respondent applied to vary the children’s maintenance as ordered under the 2006 Consent Order. The application was heard by Judge C K Chan who on 15 February 2011 made an order to the effect that the Respondent’s maintenance payments for the children be reduced to $40,000 per month. The judge held that other parts of the 2006 Consent Order would remain the same, including the increase of maintenance in line with the CPI.”
“9. The Petitioner successfully appealed this decision and in a judgment of 27 March 2012 the Court of Appeal:
(i) overturned the February 2011 order of Judge C K Chan;
(ii) dismissed the Respondent’s variation application;
(iii) restored the 2006 Consent Order;
(iv) ordered that the Respondent repay the Petitioner $552,500, which was (paid to the Respondent as a result of C K Chan’s 2011 order); and
(v) awarded the Petitioner her costs of the appeal and below.”
“11. The Respondent was clearly unhappy with the findings of the Court of Appeal and sought leave to appeal. On 19 September 2012, his application was dismissed by the Court of Appeal (Justices Cheung and Lam). Despite this, the Respondent sought leave to appeal to the Court of Final Appeal on 16 October 2012.”
“12. On 18 December, the Court of Final Appeal dismissed the Respondent’s application with costs to the petitioner.”

4. It is, therefore, very clear that, in considering any further application by the husband, I am absolutely bound by the findings made by both the Court of Appeal and Court of Final Appeal, and that it is not open to me to rehear matters that have already been determined. This is so, even if I were to agree with the husband’s original stance or, even if putting it somewhat lower, I had some sympathy with him. In order for the husband to be able to successfully issue a further application for a variation less than two years after the determination by the Court of Final Appeal, there must be a significant change of circumstance necessitating such an application. In other words, is there a trigger? Has something happened of sufficient import that would necessitate such an application being made? Ms Rattigan for the wife says the court should, in considering this, look to the period between the determination by the Court of Final Appeal and the husband’s application, whereas the husband says that I should look to the period from Judge C K Chan’s ruling on 15 February 2011 to the date of his application, given that that was the last time that there was a hearing on the facts. I would tend to agree with that. However, the onus is still on the husband to show that there is something new that has necessitated his application. It seems to me that, in the circumstances, this is so, even though it is said that the court is able to hear such applications de novo. That cannot be the case where, in effect, the same issues are potentially being re litigated, as here. I also have to be careful to ensure that there is no appeal through the backdoor. These points are referred to in part in the Court of Appeal’s decision and reference can also be made to the decisions in HCTT v TYYC [2008] 3 HKC 86 and AEM v BFM [2008] 3 HKLRD 36. With respect, I agree with what is said in those judgments.

5. The husband says that he cannot point to a single thunderbolt event and that different strands have led to the present situation. He says that a change of circumstances has taken place over time and that that should be sufficient to allow his application to proceed.

6. The difficulty with that stance is that it does appear from the evidence that the husband is seeking to go over old ground. In particular, it should be noted that in the Court of Appeal judgment dated 27 March 2012, Hon Lam J made the following findings, and I am now going to actually refer to the Court of Appeal decision:

At paragraph 20, he said:
“ In our view, clause E of the Mediation Agreement clearly provided that the 30 million lump sum payment was paid to the Petitioner by way of ‘spousal maintenance’ as a clean break division of the assets. There is no suggestion whatsoever in the agreement that the Petitioner would be expected to utilise part of such payments to maintain the children.”
He goes on at paragraph 25:
“Thus, it was more of a matter of the Petitioner being told at some stage that the Respondent might change firms or cease working as a solicitor at some point in time in the future than her agreement to such” a “move. Further, she had reasons to believe that he had other means of generating income, even if he were to quit practising as a solicitor.”
And the next section is important:
“We do not accept the submission that the necessary implication of Clause D(g) is an agreement to the effect that upon cessation of practice on the part of the Respondent resort must be made to the assets of the parties to keep up with the maintenance of the children.”
He then goes on - I will not read it all - but at the end of paragraph 26, he says:
“It is not a necessary conclusion from such” a “review...that the Petitioner should be required to utilise her capital resources to pay part of the maintenance for the children.”
And at paragraph 27, he adds:
“In any event, the fact remains that there is” “great disparity between the earning capacity of the respondent and that of the petitioner.”
And at paragraph 31:
“We are of the view that had the proper question been addressed, there was simply insufficient justification for the exercise of the power of variation in the present case. Ms Irving submitted that given the accumulated wealth of the family, the Respondent could afford to retire at this age and he should not be penalised for making such a choice. That may be correct. On the other hand, the exercise by him of this choice cannot be allowed to impinge upon the welfare of the children and the long-term security that the Petitioner needs in respect of the lump sum payment made to her. As found by the Judge, the Respondent has sufficient means to keep up with the existing level of maintenance for the children. There is no reason why he should not be required to take the financial consequences for his own choice.”

7. Thus, it seems to me that it is not open to the court to now consider an application to vary that is centred on the wife contributing towards the children’s maintenance from her so-called spousal maintenance, (ie the lump sum of 30 million that she received on the divorce). Further, the Court of Appeal’s interpretation of clause DG stands. They also found that there was a great disparity between the earning capacity of the wife and the husband, and that, given that it was the husband’s choice to retire at age 49, that he must now bear the consequences of that choice, which includes continuing to be wholly responsible for the children’s maintenance.

8. Further, in the determination dated 18 December 2012, in which the Court of Final Appeal dealt with the husband’s application for leave to appeal to the CFA, the Chief Justice said as follows - and this is at paragraph 7:

“Essentially, on the facts of the case, the Court of Appeal saw no reason to vary the original order. The Court was of the view that the Judge had erred by failing to give sufficient weight to the original agreement as to how maintenance should be dealt with. Further, while it was true that the Husband had ceased working as a solicitor, he nevertheless had a vastly superior earning capacity compared with the Wife, and the original maintenance for the children was an expense he could easily afford. Nothing in the original Mediation Agreement, in particular, clause D.g thereof, indicated that in the event of his ceasing to work for his previous law firm, this would somehow automatically reduce the amount of maintenance payable to his children. Indeed, it is noteworthy that the Husband had at no point sought to reduce the amount of maintenance his three children should have. This case was simply that the wife ought to contribute something towards the maintenance.

9. So what then is the husband’s case on variation now? In his affirmation in support of his application dated 6 June 2014, he points, inter alia, to the fact that:

(a) his asset base has decreased from just over 58.3 million to 50.8 million. He says that he is now in a very precarious financial position and that the running costs of his various assets are significant and that there are other difficulties associated with them.

With respect, the fact that the husband admits to having assets of over 50 million puts him in exactly the same financial position as he was in at the end of 2010, when the matter was heard by HH Judge C K Chan. It was on that basic premise that the Court of Appeal came to the conclusion that it did.

(b) the husband sets out his attempts to find alternative employment and to otherwise increase his income.

However, in view of the Court of Appeal’s finding that the maintenance levels should not be varied as a result of the husband’s decision not to work, it is not possible for this matter to be reopened on that basis either.

(c) Lastly, the husband refers to the so-called agreement reached between the parties in mediation in September 2013, which has been vehemently denied by the wife.
The parties’ former mediator, Mrs H, has confirmed that no agreement was reached. I accept what she says in that respect. Thus, these three points do not provide a proper basis for a variation application on the part of the husband.

10. In his affirmation dated 10 September 2014 filed in response to the affidavit filed in support of the wife’s application to strike out, the husband goes over more old ground, setting out his position with respect to his retirement, which seems to be that he had always anticipated that the maintenance for the children would be varied down. At paragraph 7 of that affidavit, he says, halfway down:

“What now needs to be addressed is the appropriate arrangements which should operate since I have stopped working full time as a lawyer for more than five years, during which time I have not only paid all school fees and medical costs, but also child maintenance in an amount I could not possibly have envisaged at the same rate as I agreed to pay during my time working full time for L. That has caused me to sell assets, unrealised capital and property at a much faster rate than I had planned and could even be unsustainable, as I shall elaborate below.”

With respect, that is neither here nor there, given the fact that the Court of Appeal has determined that, in the circumstances of this case, the husband should be wholly responsible for the children’s maintenance.

11. There are also other references which show clearly, despite the husband’s protestations to the contrary, that he does not fully accept the Court of Appeal’s ruling. For example, at the beginning of paragraph 10, when talking about the petitioner’s conduct, he says:

“Let me illustrate her approach to my seeking a reasonable compromise on the reduced level of child maintenance following my retirement in 2009, bearing in mind such a reduction was fully anticipated in the 2006 mediation agreement.”

And again at paragraph 11:

“Also, my statements cannot come as a surprise to the petitioner, as I have been seeking to find a sustainable and fair basis to fund child costs since 2006, when the petitioner agreed with me to revise child maintenance after my agreed retirement in 2009. For so long as the petitioner chooses not to agree to the anticipated reduction in child maintenance, I am forced to try to achieve it, whether by discussion, mediation or court application. I think this is at the core of why these proceedings have gone on for so long. I also believe that for the next 10 years of child maintenance to be sustainable, a reduction is more sensible than, ignoring for these purposes that the petitioner agreed I would retire by 2009, my attempt to return to legal work.”

However, the Court of Appeal specifically found that a reduction in maintenance was not fully anticipated and that this could not be inferred from the mediation agreement 2006 and that the wife had not agreed to this in any event.

12. The husband also argues that it can no longer be inferred that he has a greater earning capacity than that of the wife. With respect, I do not agree and, in any event, whether that is true or not is largely immaterial, given the Court of Appeal’s ruling.

13. Finally, the husband says at paragraph 25:

“I believe all the changes of circumstances described in the paragraphs above are still current and relevant and are not affected by the Limitation Ordinance or similar legal constraints. Those changes in circumstances are still the cause of my current financial difficulties, and they have been exacerbated by 5½ years of paying as yet not reduced child maintenance payments, something I never expected after my retirement from L. Clearly, I still own some valuable assets, which I could have tried to sell earlier in these proceedings. However, I am extremely nervous and reluctant to sell too hastily, thereby to give up income earned from them and possible improvements in value over time. In particular, I am desperately trying to hold on to assets until I know the extent of my obligations over the coming 10 years to 2024 and in the belief that the petitioner and I must find a resolution which is fair and, most important, sustainable before I engage in any further sales.”

With respect, there is nothing here that is new. Thus, I accept that any further hearing on variation would essentially be a rehearing on the facts, which this court is not permitted to do.

The law

14. I have been taken to the law and the applicable legal principles on strike out, as set out in Order 18, rule 19 of the High Court Rules and generally under this court’s inherent jurisdiction. I do not intend to repeat them here. Suffice it to say that I accept that this is a plain and obvious case for striking out. In particular, I accept that this application was essentially an attempt to relitigate matters. Although the husband may say that this is the only route left open to him, the fact remains that he is not permitted to rehash those issues which have already been determined by the Court of Appeal.

15. I do not intend, in the circumstances therefore, to deal with the submissions that have been made in relation to vexatious litigation. I do not think there is any need for that and I intend to make an order in terms of paragraphs 1(c) of the wife’s summons dated 25 August 2014, which refers to the abuse of process.

Costs

16. In the circumstances, it seems to me that there is no reason why costs should not follow the event in the normal way. So the husband shall pay the wife’s costs of and occasioned by her application dated 25 August 2014 on a party and party basis, to be taxed if not agreed, and there shall be certificate for counsel.

	(S.D. Melloy)
	District Judge

Ms Rattigan instructed by Haldanes, for the petitioner

The respondent appeared in person

FCMC 809/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 809 OF 2004

_____________________________

BETWEEN

	W	Petitioner
	And
	F	Respondent

______________________________

Coram: Deputy Judge C.K. Chan in Chambers

Date of Hearing: 23 May 2005

Date of Judgment: 2 June 2005

J U D G M E N T

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.

Background

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 failed to respond to his request for swapping some of the access days when he has to attend partners’ meetings.

The Law

21. The statutory provisions governing the right of access to the children of the family can be found in S.10 of the Guardianship of Minors Ordinance, Cap.13 which are as follows:

“10. Orders for custody and maintenance on application of either parent

(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-

(a) the custody of the minor; and

(b) the right of access to the minor of either of his parents,

as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents.

(2) ………

(3) ……….”

22. S.10 is an reiteration of the general principle that the welfare of the children is the paramount consideration in respect all applications concerning their custody and upbringing as contained in S.3 of the same Ordinance:

“3. 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 welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A) the wishes 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; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) ………..

…………..”

23. It is obvious from the above sections that when a court has to deal with the issue of access to a child, it has to bear in mind the principle that the well being of the child is the first and paramount consideration. Therefore, the right of access is more a right of the child, not a right of the parents. Applying the said principle to our present case, the right of the father to have a fair share of the children’s weekends is always subject to the best interests of the children.

Best Interests of the Children

24. I think custody and access cases are always difficult to decide because there are so many competing interests being involved. Sometimes it is quite difficult to ascertain what the best interests of the children are. However, I do share the view of the social welfare officer that a set of simple and fixed routine or schedule are very important for the normal development of the children. This is particular so when we are dealing with children of very young ages, like K and Q and to a lesser extent S.

25. I am glad to see that both parents agree on the cancellation of Thursday access as I think these midweek interruptions are certainly not in the best interests of the children. As to the weekends, I tend to agree with the proposals of the social welfare officer as they provide a relatively simple schedule for the children to follow and at the same time, produce a more or less equal division of the weekends between the parents.

26. I do understand that the father would like to have more Sunday mornings with the children so that he can play more mini rugby with S and Q. However, that desire has to be balanced with the desire of the mother to spend quality time with the children as well. I am not convinced that by not allowing the extra Sunday mornings as requested by the father, the best interest of the children will be affected in any way. Besides, if the boys are really so fond of rugby, I trust that the mother will no doubt consider to take them to the game even though it was her turn to have the children on that Sunday.

27. As to the third recommendation of the Social Welfare Officer concerning the access arrangement on the father’s day, mother’s day and their respective birthdays, I think both parties have no objection to such an arrangement and I see no reason why they should not be extended to cover the whole day.

28. As to the last recommendation that there should be flexibility in rearranging access in case that one party is not in a position to exercise such access, it is my view that there should always be some flexibility in children access in order to ensure that the children would not be left on their own in case one party (e.g. the father has to go on a business trip) is not available during a particular access period. Such rearrangement of access time should of course be subject to the parties’ mutual consent and I shall leave that to the parties’ good judgment.

Order

29. Based on the above reasons, the order on interim access to the three children of the family be varied and the father do have interim access on a 4-weekly cycle as follows:

(1) on Week 1 and Week 3, the father do have access to the children from Friday after school to Saturday noon;

(2) on Week 2 and Week 4, the father do have access from Saturday noon to Monday morning when the father shall take the children directly to school;

(3) Visiting access for the whole day (from 9:00 am to 8:00 pm) on father’s day and the father ‘s birthday on 2 January. If the father’s birthday shall fall on a school day, then the access time shall be from 3:00 pm to 8:00 pm. The same arrangement would apply to the mother’s day and the mother’s birthday on 7 September of every year so that the mother would also have the whole day on those two special days.

(4) In the event that normal access as defined has to be cancelled, the parties be at liberty to rearrange the access subject to their mutual agreement.

30. I will also order that the new cycle shall be implemented immediately after the end of the existing 4-weekly cycle.

Costs

31. I can see that both parties are doing what they consider as the best arrangement for the children and I do not see any party as winning or losing in these applications. Therefore, I will grant an order nisi that each party to bear his own costs which shall be made absolute on the expiry of 14 days from the handing down of this judgment.

C. K. Chan
Deputy Judge
District Court

Mr. Neal Clough, instructed by Messrs. Chaine, Chow & Barbara Hung, for the Petitioner

Mr. David Pilbrow, S.C. instructed by Messrs. Hampton, Winter & Glynn, for the Respondent

Please refer to CACV130/2011 for the relevant appeal(s) to the Court of Appeal.

FCMC809/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 809 OF 2004

BETWEEN

	W	Petitioner
	and
	F	Respondent

Coram: H H Judge Carlson in Chambers

Date of Hearing: 18 June 2004

Date of Judgment: 21 June 2004

________________

J U D G M E N T

________________

1. There is a dispute between these parents as to whether Q, who is aged four and who is the younger of their two sons, should attend the reception class of the Chinese International School (CIS) at the start of the next academic year which starts in late August this year. As a result, I have to make the decision for them.

2. I will refer to them as the mother and the father.

3. The father, who is English, is aged 44. He is a solicitor and has lived in Hong Kong since 1987. He came to work for a large firm of solicitors and is currently a partner of a large firm. His practice is in the field of corporate finance in which he has enjoyed great success. His earnings are said to be in the region of $7 million to $10 million per annum. As a result, the parties and their children have been able to enjoy a very comfortable way of life. They have lacked for nothing. Nevertheless, his position in the partnership is almost certain to change very significantly as a result of changes in its structure and his earnings are very likely to go down although, for present purposes, that does not really matter.

4. The mother is 42. She is a Chinese American. She was born in San Francisco and her family continue to live in the United States. She is a graduate of the University of California, Berkeley and she also came to Hong Kong in 1987, when she was 25. She has had a very successful career as a newspaper journalist and on radio and television. She stopped full-time work when the parties’ first child was born. The parties were married in England in October 1996. They have three children: S who was born on 3 April 1998 and so he is now six; Q who is four, having been born on 3 April 2000, so they share the same birthday; and K their sister who will be two on 23 July.

5. For present purposes, a very brief history of the marriage will suffice. The final matrimonial home, which is presently used by the father, is a spacious and well-appointed house at Sai Kung. The parties employ two maids and a driver. The driver would drive S and Q to their present school which is in Queen’s Road East, close to Pacific Place. The father would also drive in with them to his offices in Central and the driver was also available, and I daresay still is, to drive the mother to and from school and for any other journey that she needs to take. Apart from the obvious advantages of having help at home and somebody to drive the family, they have also enjoyed the other advantages that go with the father’s earnings including a house at Chamonix and in London as well as many holidays overseas and so forth.

6. Without embarking on the complexities that contribute to the break up of a marriage, it would appear that so far as the mother is concerned, the major cause has been the father’s admitted adultery with a number of women. Attempts had been made to save the relationship in 2001 when both of them attended counselling sessions but to no avail.

7. Things came to a head late last year when the mother felt that she could not go on in view of the father’s unfaithfulness. In March this year, she took the children with her and moved to a serviced two-bedroom flat at Parkside, Pacific Place, where the monthly rent of $68,000 is paid by the father. He occupies the former matrimonial home at Sai Kung and he also uses a small flat that he keeps in the Hollywood Road area. He gets regular access to the children at the weekends.

8. The divorce proceedings are still at a fairly early stage but as the father has made formal admissions of adultery, the petition is expected to proceed quickly on an undefended basis. Custody remains contested, but a Social Welfare Officer’s report is now available and I would have thought that this issue can also fall away once a decision can be made as to whether the parties should have joint custody with care and control to the mother. At present she is not inclined to agree to joint custody but it is very much hoped that she can be persuaded to accept that.

9. That would leave over financial provision. The parties are represented by very experienced solicitors and counsel, and with a measure of goodwill it is to be hoped that this too can be resolved. The assets are sufficient for that to happen.

10. So that is where the parties stand at present. From that I now turn to this discrete but important matter. The argument comes about in this way: both boys go to the International Montessori School in Queen’s Road East (IMS). Before the final break up of the parties’ relationship, it seems clear to me that both the mother and the father hoped that S and Q would be able to enter CIS. This was seen as an excellent choice for both of them, with perhaps K waiting in the wings to join her brothers in due course. It, after all, offers an excellent all-round education and particularly for a child who wishes to be fluent in both English and Mandarin. It is a school that tends to appeal to affluent Chinese parents who wish to have their children educated in English whilst at the same time leaving the school speaking fluent Mandarin and being able to read and write Chinese. It is a school that would also appeal to an Anglo-Chinese family such as this. The mother is a Mandarin speaker, in addition to English of course, and the father wishes to encourage Mandarin and Chinese fluency for all his children so that they may maximise the advantages of their background. He too speaks Mandarin and reads and writes Chinese.

11. I am convinced that the problem has its origins from the fact that S, the eldest child, who although very bright was unable to secure a place when an application was made on his behalf. He is a reserved boy and unfortunately the school felt unable to offer him a place. Q on the other hand, who is a more outgoing type, has been accepted for entry in August this year. The father’s earnest wish is that he should take the offer and he has already paid a deposit. If he does not go up, then about $21,000 will be lost although that is not something that I am being asked to have regard to.

12. Quite apart from the positive benefits of going to a well-established and well-regarded establishment, the father also sees this as a further opportunity for S to get in next year by being given sibling preference (as it has been described) where, as the expression implies, applicants who have a brother or sister in the school will get a preference. He frankly accepts that this is not a stated policy of the school, nor does it provide a guarantee to entry, but it does give an advantage over applicants who come “cold” to a school where demand for places is high and competition is keen. He would also expect that S, who would then be older, would put up a better showing at the interview.

13. The present situation is that both boys are well settled at IMS. They are happy there and making very good progress. IMS is a new school, it started in September 2002 but seems to have acquired a good following. It has 120 pupils at present and it wishes to develop itself into a complete primary school taking children up to the age of 12. It no doubt hopes to keep its present crop of pupils who, if they stay, will become the first new higher classes up to the final year of primary school. It has served these children well so far. The mother is very happy with it and she gets on extremely well with the staff there. Being something of a media personality, I expect the school see her as a bit of an asset and she was instrumental in producing a DVD for the school.

14. The mother’s case is that at present the brothers should not be separated at what is a very difficult period of time for them and for the family as a whole. She is obtaining assistance from Mr S who is a psychologist and who is helping her and Q. He has written a letter to her solicitors advising against a move at present to avoid the risk of adverse effects on Q and S. Mr Clough who appears for the mother also adds that there are no educational advantages to be gained in making such a move; Q is doing well at IMS and at this initial stage of his education and development I should not interfere.

15. The father, who for this application has represented himself and who has put his case with great moderation and very persuasively, has drawn attention to all the obvious advantages that a highly sought after school such as CIS can give to Q and also the prospect of a real foot in the door for S next year and perhaps for K in due course. These are powerful considerations which cannot be understated. He says, and I paraphrase, “I hope when this is all over and if Q is left at IMS that we don’t think back and say ‘That was a lost opportunity which we now regret’.”

16. I need to balance a number of considerations in coming to a difficult decision. These should be decisions for parents and not for judges. Whatever I decide will leave one of them deeply disappointed and dissatisfied. Both love their children very much. Both in their different ways give much to them in physical and emotional terms. These parents are, it seems to me, quite different characters and they compliment each other perfectly as parents to these children. The children need both of them and that is why I very much hope that the question of joint custody can be resolved with generous access to the father.

17. In respect of this issue, I need to do what is in Q’s best interests. That does not mean I take him in isolation. Many factors impact on his best interests. Firstly, his relationship with his brother and sister. So far as K is concerned, I do not think her position will be affected at all. She is not two yet and her relationship and contact with her brothers will not change whatever I decide to do. In respect of quality of schooling for a four year old like Q, I would not have thought that in terms of quality at this stage there would not be any meaningful difference. IMS is perfectly good; the mother would say it is more than just perfectly good.

18. The real issues are the question of separation of the brothers and possible lost opportunities in the future for entry to CIS by S and K, although in her case this is not really relevant at present.

19. I have no doubt Q would enjoy himself and settle into CIS. Four year olds are very adaptable and resilient. Would he miss his brother? Probably at first, but they would get used to that. What would the impact be on S? He has settled in at IMS and he has got his friends and is doing well. He would get over any initial anxieties and they would have plenty to say to each other at the end of the school day when they get home in the afternoon. In any event, they are in separate classrooms, or will be next year at IMS. I suppose the point is that they will have the comfort of knowing that they are in the same building. But overall, I think it has been demonstrated that in terms of cold analysis the case for a move by Q is a highly persuasive one.

20. But I need to consider the mother’s position. She is the primary carer and I would have thought that that will be the case after all of this litigation is over and done with. The strength of her feelings, that it should be IMS and not CIS for the two boys, is not one that is borne out of malice - she is not doing it just to get her own way and score a win over the father, of that I am convinced - even though in happier times CIS had been jointly considered as the likely option. She has warm feelings for IMS. Had I thought that she was being bloody-minded, I would not have felt able to weigh her wishes in this decision.

21. I am satisfied that IMS provides a good education for the children at this stage of their lives. If I move Q, she is going to be very unhappy to the point, I believe, of being resentful. Those feelings will work their way to the children, which may affect their happiness and stability. This is a consideration that I am bound to have considerable regard to. It is not a case of saying, “Well, the mother is going to be much more upset than the father, so I will do what the mother wishes.” That would amount to a dereliction of the judicial function. It is a question of weighing all the factors that will impact on Q, either directly or, on him, through its effects on his brother and sister and on his mother with whom he spends most of his time.

22. And so whereas the father has won the intellectual argument, I still do not consider the proposed move to CIS to be in Q’s best interests at present. As I had indicated in the course of the argument, this dispute has arisen at the worst possible time in the litigation cycle of this case. Hackles are up, swords are drawn, and a change in Q’s situation will, I believe, make matters worse.

23. For these diverse reasons therefore I am going to refuse this application. He will continue to thrive at IMS. There is no pressing need for a move. I am sorry that he will have to let this place go, but that will not necessarily mean that CIS is a closed shop for these children in the future although I do accept that it will make it more difficult for both of them in making an application next year or the year after that. This has been one factor amongst a number that I have had to weigh, but for all the reasons that I have attempted to provide, the scales have fallen the other way.

24. I hope that the mother will not see this as a victory in an adversarial process and that once things have settled down she may wish to consider CIS for both boys provided of course places are available.

	Ian Carlson
	District Court Judge

Present: Mr Neal Clough, instructed by Messrs Chaine, Chow & Barbara Hung, for the Petitioner

Respondent, in person

Present: Miss J Ip, of Messrs Chaine, Chow & Barbara Hung, for the Petitioner

Respondent, in person

W v. F

Related cases with same parties

Files (4)

(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.

(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.

(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.

“10.	Orders for custody and maintenance on application of either parent

	(1)	The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-

		(a)	the custody of the minor; and

		(b)	the right of access to the minor of either of his parents,

		as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents.

	(2)	………

	(3)	……….”

*“3.*	*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 welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

				(A)	the wishes 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; and

			(ii)	shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

		(b)	………..

		…………..”

(1)	on Week 1 and Week 3, the father do have access to the children from Friday after school to Saturday noon;

(2)	on Week 2 and Week 4, the father do have access from Saturday noon to Monday morning when the father shall take the children directly to school;

(3)	Visiting access for the whole day (from 9:00 am to 8:00 pm) on father’s day and the father ‘s birthday on 2 January. If the father’s birthday shall fall on a school day, then the access time shall be from 3:00 pm to 8:00 pm. The same arrangement would apply to the mother’s day and the mother’s birthday on 7 September of every year so that the mother would also have the whole day on those two special days.

(4)	In the event that normal access as defined has to be cancelled, the parties be at liberty to rearrange the access subject to their mutual agreement.