An unfortunate consequence of Court litigation in family proceedings is inflaming hostilities between divorcing parties. More often than not, parties fall prey to “winning at all costs”, instead of focusing on resolving the issues between them. There are even online resources to “teach” parents how to “win” in custody battle.
Sadly, children of divorce are caught in the middle of their parents’ fights. Divorcing parents often need to be reminded that “Your ex is not your child’s ex. They love your ex just as much as they did before.” This quote is from “We’re having a Tuesday” by DK Simoneau about a young girl as she bounces between her parents in the midst of their divorce and struggles living between two homes. A must read for divorcing parents.
Without the parents’ cooperating, it is only an uphill battle until the children reach the age of 18 or even until they complete university.
FJ v DTD  HKFC 50  HKEC 1131 involved conflict between the divorced parents, which persisted over 10 years leading to numerous Court applications being made. The Court noted that “The parties have been locked in bitter litigation which have continued to hurt the parental relationships with both of them busy attacking each other while defending themselves.”
“Not only the parties suffer, C was observed to be stressful and constantly urged for cessation of arguments between his parents. Sadly, the continuous witness of the parents’ high conflict and ongoing court proceedings since 2 years old has undoubtedly been causing harm to him and affecting his healthy bonding with both parents.”
This article explores the common traps in Court litigation, the limited powers of the Court, and alternative dispute resolutions.
Common Traps in Court litigation
In contested divorce proceedings, it is easy to get sucked into the litigation. Parties often skip the step of communicating with the other parent and immediately involve lawyers as and when “issues” arise. It is helpful to remember as Honorable Justice Lam observed in LLC v LMWA and Anor  HKCA 347: “For each HK$ 10,000 spent on legal fees, the parties eventually have $10,000 less to be distributed amongst themselves (in a share case) or for maintaining themselves and their children (in a needs case.” In that case, the parties had already spent a combined total of HK$ 7.5 million and were still in the preliminary stages of their divorce proceedings.
Due to parties’ mistrust and lack of communication, Courts are often asked to deal with even simple matters when:
- Parties play the blame game – For example, Sheldon is not performing well in school. Mary jumps to the conclusion that it is George’s fault. She suspects that George has not been properly supervising Sheldon when he is doing his homework and providing the proper support in terms of tutoring. Mary believes that Sheldon should be at hers when he is studying for his end-of-year exams. Mary does not talk to George about this. Instead, she takes out a Court application to suspend George’s access during Sheldon’s exam study period.
- Parties are not accommodating to change: For example, when the access Order to Sheldon was made George and Mary lived only 5 minutes apart in Happy Valley. George moved to Kowloon Tong, the traveling time is 30 – 45 minutes by car. George asks Mary if his access can be increased by 1 hour to take into account the traveling time, which Mary rejects. George makes an application to the Court.
- Parties do not keep the other parent informed – This is a long list from medical appointments, records, school applications, school report cards and notices, extra-curricular activities, etc.
It is also not uncommon for parties to engage in conduct which they believe will help them advance their case and/or gain litigation advantage. In the most heartbreaking cases, one parent takes the children from the marital home and does not allow the other parent to see the children, making untrue allegations of neglect, abuse or domestic violence. This is done in the hopes that the other parent will give up and agree to a big financial payout and/or alimony.
Sadly, as noted by His Honor Bruno Chan in P v P  HKCU 1314, “litigants are frequently psychologically or emotionally ill-equipped to conduct their cases sensibly and economically, and so the requirements of setting out their cases first by way of affidavits and later in oral testimony at the trial, very often become convenient and effective means to attack, abuse, insult and humiliate each other, which only serve to bring out the worst of their emotions.”
Parties are also always gathering “evidence” against the other parent. More often than not, such “evidence” serves no real purpose, with little to no evidential value, and is not conducive to a positive co-parenting relationship. Common examples include:
- Keeping detailed diarized entries of faults of the other parent – self-serving.
- Taking voice and/or video recordings of the other parent (overtly / secretly) – the other parent often overreacts as their privacy is violated, while it is obvious that the parent taking the recording is “putting on a show”.
- Calling the police (unless truly warranted – in cases of domestic violence or abuse) – it is traumatizing for a child to see their own mother or father being questioned by the police and/or being arrested.
- Telling the children that the other parent is bad (and coaching them what to say to the Social Welfare Officer) – parental manipulation.
- Involving unrelated third parties – domestic helpers, teachers, friends, etc. as “witnesses” – often biased and creates tension between the other parent and third parties.
Courts do not approve of litigation fueled conduct. In S,V v M,S  1 HKLRD 210, Her Honour Judge Melloy commented “… it seems to the court that this was done with one eye on the litigation and with a view to obtaining a litigation advantage” in respect of a Mother took the child to see a psychologist without the Father’s agreement or consent. The Mother opposed the Father having access with the Child on the grounds that the Father “behaved inappropriately” after she filed her divorce petition.
Limited Powers of the Court
The Court’s powers are limited. The Court can only make a decision in respect of the issue before it. For example, when you visit the doctor for a cold, the doctor will only treat your cold.
The Court may not have a full and accurate picture of the current situation. In any event, it takes time and money to pursue the matter in Court.
For children applications, the Court is guided by “the best interests of the minor as the first and paramount consideration” (s. 3 of the Guardianship and Minors Ordinance). In doing so, the Court considers the evidence of the parties, the views of the Child (if appropriate) and calls for a Social Welfare Report to be prepared.
Social Welfare Officers are said to be the “eyes and ears” of the Court. The SWO’s recommendations are not binding but generally persuasive. The SWO interviews the parents separately and then observes the interactions between the parents and the Children. It goes without saying that parents are usually their “best selves” when they meet with the SWO.
The Court does not resolve the underlying hostilities between the parties resulting in an endless cycle of Court battles.
Often more issues arise between the parties and/or there has been non-compliance with the Court Order. If parties cannot cooperate and continue to fight, they have a long road of Court applications ahead of them until the children are 18 or complete university.
Where there is non-compliance, a party can apply for enforcement of the Order, including Penal Notices and committing the other party to imprisonment. An application for committal is seen as a remedy of last resort in view of the impact they may have on the child. Normally, the Court will first consider whether the Order can be supplemented or amended in any way to make it workable. In Re C (children) (contact order: variation)  All ER (D) 167 (Nov), a case involving enforcement of contact and an order under section 91(14) of the Children Act 1989 (ChA 1989), Thorpe LJ said: “Where a contact order is not operating smoothly, the court that made the order has a continuing responsibility to strive to make it work, and that responsibility is all the greater where a litigant in person is before the court and plainly frustrated by the obstruction.” This may result in unnecessary legal battles one Order after the other over child-related issues in an attempt to “make it work”, which is time consuming and costly.
Alternative Dispute Resolution
Before resorting to Court litigation, parties should always consider alternative dispute resolution:
Parties try to resolve their issues with the assistance of an independent third party. The benefit of mediation is that it is a collaborative process that can be done through multiple sessions. Parties express their views and concerns, and the mediator helps them work towards a middle ground. Mediation is a confidential process. It can address big and small issues, introduce guidelines, and help parties communicate better between themselves. Mediation is voluntary and parties can stop if it is not working at any time. Anything said in mediation is not binding until it is incorporated into a mediation agreement and made into a Court Order. Anything said in mediation cannot be used in Court.
A parental coordinator is usually appointed where there is persistent conflict between parties. It is not confidential. However, the upside of appointing a parental coordinator is that it is a quick and easy way for issues to be decided without the involvement of the Court or lawyers. In the event of a stalemate on disputed issues, a parenting coordinator is authorized to make simple decisions on matters within a specific agreed remit formerly agreed between the parties. The parties are then bound to follow those decisions. A parental coordinator may help parents learn how to communicate better and ultimately to resolve issues between themselves.
Parties may choose to use a family therapist during their separation. These family therapy sessions can be done either with or without the children, or a combination of both. Family therapy can help facilitate communication between the parties, allowing them to express their emotions and try to reach agreements early on, avoiding lengthy litigation. It also provides an opportunity to include children in the discussions, and to hear their fears and concerns. For instance, a child may be particularly worried about the change in living arrangements. A therapist can provide tools to all parties to cope with their complex emotions, ultimately helping dysfunctional families to resume a better structure for the benefit of the children.
Divorcing parents need to rethink their litigation strategy and consider what is in the best interest of the children in mind. The focus should be working together as co-parents to resolve their differences and address each other’s concerns with minimal intervention from the Court. During this critical time, the Children need their parents’ encouragement and support to adjust to their “new normal”.
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