Court of Appeal
Miscellaneous Proceedings No 178 of 2013
Cheung CJHC and Yuen JA
25 June 2013

Joint custody unworkable having regard to practical reality of situation

A child (“C”) was born in November 2008 to cohabitees. About six months later, the mother (“M”) moved out with C to live with her parents. The father (“F”) sought custody, care and control of C and in the two-year period pending the trial, castigated M’s character, her family and care of C. The lower court, based on social investigation and clinical psychologist reports, found that C was emotionally closer to M as her primary care; F’s criticisms of M as a caregiver were unfounded. F applied for leave to appeal.

Held, dismissing the application, that:

The court must consider practical reality - if joint custody was unworkable, the court should not order joint custody and encourage parties to come together, as positive as that sounds. There might be occasions when the parents’ ability to reach any sensible accord on important matters concerning the upbringing of their child was so deeply undermined that forcing cooperation could leave the child more vulnerable. This is a case in point - F was determined to micromanage every aspect and minutiae of C’s life and this made a joint custody order impossible.


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