Family Mediation Practice in Hong Kong 2020 Josephine Chow, Deputy - - PowerPoint PPT Presentation

Family Mediation Practice in Hong Kong 2020

Josephine Chow, Deputy District Judge of Family Court

Children Matter

• Handling child-related disputes from 1st 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 and general welfare. They include decisions as to whether or not the child 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

• f only passing consequence in themselves but cumulatively of importance in

moulding the character of the child. They include a host of decisions that arise

• ut 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

• ther, 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

• f
• nly

passing consequence in themselves but 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
• n 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)

Children’s voice in Family Court: PDSL5 “Guidance on Meeting with Children”

• “2. …… Meeting with a child in proceedings which affect the interests of the child

may therefore be an important means by which a Judge is able to listen to the views

• f a child and give due consideration to them. It cannot be stressed too often that the

child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the social investigation officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her.”

• “8. If the Judge decides to meet the child, he or she should give

directions which should normally include the following:-

• (i) the purpose of the meeting;

(ii) when and where the meeting will take place (e.g. the Judge’s chambers, the Courtroom or elsewhere); (iii) who will attend the meeting (a Judge should never see a child alone); (iv) how the recording of the meeting is to be carried out (e.g. either by audio recording or otherwise); (v) any such other directions as the circumstances require including the need to prepare the child for the meeting and whose responsibility it will be to do this.”

• not common in Family Court
• this is a way to know the wish of the child, parents should weigh

whether to do so because children will be in Court

• can be applied by either parent or Court’s motion
• usually reflected wish of children in social investigation report
• actual meeting:
• will be recorded;
• usually appear with social investigation officer;
• no leading questions;
• ask child to express his or her wish;
• call for transcript / CD;
• provision of transcript / CD to both parents before trial

Some parents prefer to deal with children matter in Hong Kong

• Courts. How different is the children matter in the Mainland Courts?

相關法律原則:

• 《婚姻法》第三十六條：父母與子女間的關係，不因父母離婚而消除。離婚後，

子女無論由父或母直接撫養，仍是父母雙方的子女。

• 離婚後，父母對於子女仍有撫養和教育的權利和義務。離婚後，哺乳期內的子女，

以隨哺乳的母親撫養為原則。哺乳期後的子女，如雙方因撫養問題發生爭執不能 達成協議時，由人民法院根據子女的權益和雙方的具體情況判決。

• 《婚姻法》第三十七條

離婚後，一方撫養的子女，另一方應負 擔必要的生活費和教育費的一部或全部，負擔費用的多少和期限 的長短，由雙方協議；協議不成時，由人民法院判決。

• 關於子女生活費和教育費的協議或判決，不妨礙子女在必要時向父母

任何一方提出超過協議或判決原定數額的合理要求。

• 《婚姻法》第三十八條

離婚後，不直接撫養子女的父或母，有 探望子女的權利，另一方有協助的義務。

• 行使探望權利的方式、時間由當事人協定；協議不成時，由人民法院

判決。

• 父或母探望子女，不利於子女身心健康的，由人民法院依法中止探望

的權利；中止的事由消失後，應當恢復探望的權利。

• 《婚姻法》第三十九條

離婚時，夫妻的共同財產由雙方協議處 理；協定不成時，由人民法院根據財產的具體情況，照顧子女和 女方權益的原則判決。

• 夫或妻在家庭土地承包經營中享有的權益等，應當依法予以保護。

兩周歲以下的子女，一般會判給女方。

• 兩周歲以下的子女，屬於哺乳期內，為保證嬰兒的發育成長，一般應

隨母方生活。除非母方有下列情形：

• 母方患有久治不愈的傳染性疾病或其他嚴重疾病(如癌症)，子

女不宜與其共同生活；

• 母方有撫養條件不盡撫養義務(指對子女有遺棄、虐待行為)，

而父方要求子女隨其生活；

• 因其他原因(如母方被判刑、被勞教、有嚴重殘疾、母方經濟能

力及生活環境對撫養子女明顯不利的，母親品行不端如有賭博、 吸毒、亂搞兩性關係等惡習的)，子女確無法隨母生活的；

• 父母雙方協議2周歲以下子女隨父方生活的，並對子女健康成長

無不利影響的。

• 兩周歲以上的子女，會優先考慮條件較好的一方撫養孩子。
• 已做絕育手術或因其他原因喪失生育能力的，《婦女權益保障法》第46條有

明確規定；

• 子女隨其生活時間較長，改變生活環境對子女健康成長明顯不利的；主要指

夫妻長期兩地分居的情況；

• 無其他子女，而另一方有其他子女的；其他子女指另一方的婚生子女、非婚

生子女、養子女及有撫養關係的繼子女等；

• 子女隨其生活，對子女成長有利，而另一方患有久治不愈的傳染性疾病或其

他嚴重疾病，或者有其他不利於子女身心健康的情形，不宜與子女共同生活；

• 一方離婚後再婚困難的，可以作為優先因素加以考慮；
• 子女單獨隨(外)祖父母共同生活多年，且(外)祖父母要求並有能力協助照顧

(外)孫子女。

十周歲以上的未成年子女隨父隨母生活發生爭議的，應考慮子女本人的意見。

• 父母雙方可協定輪流撫養子女，這個會根據雙方自願達成的撫養協定，或者在

法院的參與下達成撫養協定。