Family Mediation Practice in Hong Kong 2020 Josephine Chow, Deputy District Judge of Family Court
Children Matter • Handling child-related disputes from 1 st Appointment to Child Dispute Resolution (CDR) for litigant in person. • What mediators have to bear in mind when handling children dispute?
Get the parties prepared to appear in Court. i.e. parties need to know what to decide, get an idea what will happen in Court. – Custody; care & control; access • Joint custody v. sole custody • Care & control v. share care and control • Reasonable access v. defined access • Look for care & control plan of children of the family • Social investigation report would be called for if no agreement
Joint custody v. sole custody • F v. W (FCMC 6824 of 2016 / [2019] HKFC 137), HH Judge CK Chan • “ 34. As the main contest in this case is centred on the care and control of Y, it would also be useful to refer to the case of PD v KWW (Child: Joint Custody) , in which Hartmann JA (as he then was) has given a detailed and very useful discussion on the dual concepts of joint custody, care and control which should be borne in mind by all parents and their representatives when they come to consider such issues: • (PD v KWW (Child: Joint Custody [2010] 4 HKLRD 191-201, at paras 28-41)
• “ 28.As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’ . Neither concept, however, is defined in our statute books. • 29. Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons. • 30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.
• 31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development They include decisions as to whether or not the child and general welfare. should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative. • 32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.
• 43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasized that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control. This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody. Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child”
• 35. The following principles can be enunciated from the above passage: • (1) A parent having custodial rights has the authority to make decisions which will have real consequence in safeguarding and promoting a child’s health, development and general welfare. • (2) On the other hand, the rights to care and control concern with decisions which are of a more mundane, day-to-day nature, decisions of in themselves but only passing consequence cumulatively of importance in moulding the character of the child. ” [emphasis added]
When to consider joint custody or sole custody? • Understanding • Cooperation • Communication • Trust
– Removal restriction • Four categories: vacation / oversea studies / visiting relatives / school tour • Need to specify in Court Order, now under consideration by working groups • Court requires parties’ consent & undertakings • If no consent from the other parent, need to issue summons for leave • Parties may apply to uplift all previous removal restrictions order • The applicant has to state the date / place / purpose of removal • Early application advised
• Parties’ view after social investigation report, if no agreement, then fix date for Children Dispute Resolution (CDR) • Reminders for mediators in working with unresolved child related disputes after CDR:
LLC v. LMWA & LELP (CAMP 143/2018; [2019] HKCA 347), Hon Lam Acting CJHC • “ 30. A characteristic of matrimonial or family proceedings which all those involved in it (parties and those relatives who supported them, lawyers as well as judges) should always be mindful is that the resources (including both time, monies as well as energy) of the parties should not be disproportionately squandered away in litigation . This is particularly so in cases where there are children in the family. For each $10,000 spent on legal fees, the parties would eventually have $10,000 less to be distributed amongst themselves (in a sharing case) or for maintaining themselves and their children (in a need case). For each hour spent on preparation and attending hearing, the party would have one hour less for rebuilding their lives after divorce or for spending time with their children. Actually, it could probably be worse because in many instances the time and energy spent on litigation would generate ill-feelings and hostilities for which much more time is needed to restore the litigant’s peace of mind.
• 31. Like other places in the world, the divorce rate in Hong Kong is getting higher and higher. The caseload for the Family Court is increasing every year and the cases are getting more complicated. It is not uncommon that matrimonial or family proceedings lasted much longer than they should have and the legal costs incurred by the parties drained away an unreasonably large proportion of the family wealth. Based on our experience on the bench in hearing family cases, there is an urgent need for those practising family law to embrace a more proactive mindset to resolve family disputes through effective and proportionate means. There is also a need for the courts to adopt proactive case management to curtail excesses in litigation which ultimately do not do any good in resolving the matter for the parties. ” [emphasis added]
Family mediation (Practice Directions 15.10) • “ 1.4 In exercising its discretion on costs, the Court takes into account all relevant circumstances. These would include any unreasonable failure of a party to engage in mediation where this can be established by admissible materials. Legal representatives should advise their clients of the possibility of the Court making an adverse costs order, where a party unreasonably fails to engage in mediation. ”
What mediators should be aware of at time settlement? • the settlement agreement, submit with consent summons? • consent summons: undertakings / order • partial settlement • no need to state section 18 / marriage be dissolved • costs • may consider to send the Court soft copy if parties are unrepresented
Consideration on costs on settlement • Form H, preferably every hearing, parties to learn the estimate on costs. • PD 15.13: “ 20. No later than 4 p.m. on the last working day prior to the CDR hearing, each party shall exchange with each other and deliver to the court a cost estimate in relation to the children’s arrangements, in Form H. ”
“no order as to costs” • (i) the Court is finding an arrangement best for the children, the only “winner” is the children, neither parent should be regarded as “winner or loser” . • (ii) parents assumed to have been motivated by concern for their child and want the best for their child; •
• (iii) parent needed to cooperate with each other, if one parent is to pay the costs of other parent, this would likely jeopardise the chances of their cooperating in the future; • (iv) one parent to pay the other parent costs would reduce the resources available for the children. • (See TPL v. WYY (Costs: Children) [2015] HKFLR 75)
The Court may consider to award costs to the other parent if • the conduct of a parent has been reprehensible; • (ii) the stance of a parent has been beyond the band of what is reasonable; • (iii) other unusual circumstances. • (See Havering London Borough Counsel v. S [1986] 1 FLR 189; Gojkovic v. Gojkovic [1992] Fam 40, 60 C-D)
In case of relocation, security of costs not granted against a parent staying overseas • Child care plan v. unreasonable conduct (See : RM(aka RH) v. SRM [2019] HKFC 93, HHJ I Wong)
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