Introduction

In Hong Kong, a custody, care and control, or access order can be varied upon material change of circumstances. In NLC v YMF [2021] HKEC 4824 [2021] HKFC 203, the court decided whether to vary a sole custody order to a joint custody order in respect of a 12 year old boy.

Background

The mother (“Mother”) filed a petition for divorce on the basis of unreasonable behaviour and the petition was not opposed. By a consent order (“Consent Order”), the parties agreed that the Mother shall have the sole custody, care and control of the son, with reasonable day access to the father (“Father”). 15 months after the Consent Order was made, the Father sought, by way of a summons ("Summons"), to vary the Consent Order to one of joint custody, and have more extensive access, including staying access.

The Parties’ respective case

The Father’s main grounds in support of the application boiled down to the following:

1. He was pressured to accept the Consent Order because the Mother had told him that she would not let him see the son unless and until he agreed with her proposal on custody/access as well as ancillary relief matters;
2. He was concerned that the Mother will make important decisions for the son regarding his future education without any input from him, as the Mother did not keep him informed of the son’s medical condition and/or allow him to attend the son’s medical consultations;
   
3. His second marriage was settled down and his son gets along well with his new family; and
   
4. To make a joint custody order would be in the best interest of the son. 

On the other hand, the Mother opposed the application as she believed there was no material change of circumstances.

The law: Variation of custody orders

Section 19(6) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) empowers the court to vary a custody order granted. Citing C v S [2017] HKCU 2870, the court suggested the Father bears the burden to show that there is a material change of circumstances in order to vary a custody order. Then, under section 19 of MPPO, the court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18.

When making an order for custody, the court’s paramount consideration is the welfare of the child pursuant to section 3(1) Guardianship of Minors Ordinance (Cap.13). The court shall give due consideration to the views of a child and other material information such as reports from the Director of Social Welfare. The court also referred to PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, in which the judge emphasized that the parent with sole custody is not given independent authority to act without further reference to the non-custodial parent, and both parents should endeavour to raise the child together.

The decision

Factors considered by the court

Firstly, the court viewed that the wish of the son should be given due weight. When the son (who was 12 years old at the time) was asked whether he wanted both parents to make decisions on education, medical and religion for him, the son did not express any view and said he would let the judge decide.

After considering the overall evidence, the court simply did not accept the Father’s allegation that he was pressured to agree to the Consent Order.

Moreover, looking at the evidence of the Father’s involvement in the son’s life before divorce and his efforts to be involved afterward, the court did not find that there was a material change of circumstance.  Further, the court held that whether or not the son could get along well with the Father’s new family is irrelevant to the decision on whether to vary a sole custody order to a joint one. The court also did not accept the recommendations for joint custody of the child put forward by the social welfare officer.

Best interest of the son

The court was not convinced that it is in the best interest of the son that a joint custody order be made. One of the reasons was that in relation to the payment of the son’s monthly maintenance, the Father only paid on time for 5 months out of 31 months despite the Mother’s repeated chasing.

Apart from the late payment of the monthly maintenance, the court was also gravely concerned with another event. Pursuant to the ancillary relief order (“AR Order”) made in the divorce application, the court ordered that the family property (“Property”), for which the Mother was the borrower of the mortgage loan, be transferred to the Father. Against this backdrop, the Father suggested that the said transfer be made only upon full repayment of the mortgage (which would take almost 19 years), and in the meantime, he would continue to pay the monthly mortgage repayment. The Father argued the AR order did not provide a timeframe to complete the transfer. This triggered the Mother to take out a court application seeking to sell the Property so that she could be released from the liability as the sole mortgagor. The Father advanced a number of reasons to object to the sale of the property, and argued the Mother had never mentioned to him of her intention to buy a flat for her and the son to live.

The court took the view that the Father was well aware of the Mother’s intention to buy a new flat to live with the son, and the fact that she would have to pay double stamp duty if she remained as one of the owners and the sole mortgager of the Property. Yet, the Father was dishonest in his affirmation when he deposed that the Mother had not revealed her intention of buying a property for her and the son. Taking into account this series of events, the court did not think the Father was acting in the best interest of his son.

Having regard to the totality of the evidence, the court held that it was not in the son's best interest to make any changes to the sole custody order and there was no material change of circumstances.

Takeaway

When a sole custody order is made by consent of both parents, the non-custodial parent can face more hurdles in applying to vary the sole custody order to a joint one. In particular, the general idea of the court is that there is only a thin line between sole custody and joint custody. However, the court will not be reluctant to grant such variation if there is a material change of circumstances and it is in the best interest to have both parents make major decisions for the child.