This scheme applies to all children matters commenced in the divorce proceedings, where there is a dispute save for any matters arising out of an adoption.

The Objective

The underlying objective is to support mothers and fathers, so that they are able to effectively parent their children post separation or divorce. The intention is to ensure that whilst the best interests of children remains the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere. The focus is therefore on the children’s best interests together with the duties and responsibilities of their parents.

Children’s Appointment

Upon the filing of:

i)                    an Acknowledgment of Service form or a Joint Application and where it is clear that there is a dispute over children; or

ii)                   a summons or an originating summons in relation to the arrangements for children;

the court may either direct that a Children’s Appointment (“CA”), be heard at the same time as the First Appointment in the case of an urgent application allocate an earlier date in the first instance.

At the CA the Judge, with a view to defining the specific issues in dispute in relation to the children shall give directions, if necessary, for the filing of:

1. a Social Investigation Report (SIR) and/or an International SIR (with or without recommendations)
2. other expert’s reports (e.g. psychologist’s reports)
3. limited affirmations/affidavits from the parents (i.e. limited to the issues in dispute and only if necessary)
4. limited affirmations/affidavits from other third parties.

The Judge may also :

1. appoint the Official Solicitor/Guardian ad litem to separately represent the child and request a report if necessary.
2. make orders in relation to custody and access, including interim orders and orders for supervision.
3. adjourn any matters relating to the children for mediation, collaborative practice, negotiation or sine die.
4. where he/she decides that a referral to a Children’s Dispute Resolution hearing (“CDR”) is not appropriate, direct and fix a date for a further directions hearing or trial.
   1. direct the attendance of the Social Welfare Officer or any other person at the hearing of the CDR if deemed appropriate.
   2. direct that the parties attend counseling, a parenting education programme and/or direct any other form of third party intervention that may assist the parties.
   3. where a child has requested to see the Judge and/or a Judge deems it appropriate, direct that a judicial interview shall take place.

Not less than 14 days prior to the CDR, or otherwise as directed, the parties shall file and exchange a detailed Statement of Proposals relating to the future arrangements for the children.

The Children’s Dispute Resolution Hearing

The parties shall be notified of the CDR hearing by way of the notice which shall be served by the applicant on all parties concerned.

The Judge will act in the role of a conciliator. The parties shall attend the CDR hearing. The attendance of any other persons, including the Social Welfare Officer, must be specifically directed by the Judge at the CA. The Judge may talk to the parties directly and not only through the parties’ lawyers.

The same Judge will conduct both the CDR hearing and the FDR hearing at separate hearings. As a CDR hearing is not privileged the same Judge may hear the child related matter at trial if settlement is not achieved in the meantime.

Therefore anything said or any admission made in the course of the CDR hearing shall be admissible as evidence in trial.

Parties attending the CDR hearing shall use their best endeavours to reach an agreement on all relevant matters pertaining to the children.

The Trial

In the event that settlement is not achieved the court shall give directions for the future conduct of the proceedings, including where appropriate, the fixing of a Pre-trial Review or final hearing date before the same Judge.

The Judge may also direct inter alia that further evidence be filed, including updated affirmations/affidavits from the parents and/or third parties, updated reports from the Social Welfare Officers and updated reports/reports from other experts.

Both parties shall personally attend all hearings unless the court otherwise directs.

No later than 4 p.m. on the last working day prior to the trial, each party shall exchange with each other and deliver to the court a cost estimate in relation to the children’s arrangements.

Hong Kong Cases

In Hong Kong, we recently have two cases concerning the ownership of a flat under the Home Ownership Scheme

In November 2012, the Court of Final Appeal ruled that each family member was entitled to ownership in proportion to their mortgage contributions. That means people who contribute to mortgage payments for Home Ownership Scheme flats are entitled to partial ownership, even though they are not named on formal documents.

FACV 9,11/2011 refers.

Legal Principles (Note 1)

Where there is no express trust declared over land, the courts will look for the common intention of the parties as to the equitable ownership of the home.

Presumptions

Stack v Dowden held that where the legal title is in joint names, there will be a presumption that the equitable interest is similarly held jointly; whereas if the legal title is held in one person’s name, then the presumption will be that person is the sole owner of the equitable interest. Either presumption may be rebutted on the following principles.

Common Intention

The position established in Lloyds Bank v Rosset is as follows: Where the parties have formed an agreement, arrangement or understanding as to the beneficial ownership of the home then the court will give effect to that common intention by means of constructive trust or proprietary estoppel if the claimant has also suffered detriment.

The second means, in the absence of agreement, will be to give effect to the common intention of the parties where the claimant has contributed to the purchase price of the property or to the mortgage instalments, again by way of constructive trust or proprietary estoppel.

Purchase Price

However, some UK Court of Appeal decisions have held that where a person contributes to the purchase price of the home, an amount of the total equitable interest proportionate to the size of the contribution will be held on resulting trust for that person.

Alternative UK Court of Appeal decisions have developed two further approaches.

Balance Sheet Approach

Firstly, a balance sheet approach based on resulting trust which favours a measurement of financial contribution over the life of a relationship to calculate proportionate equitable rights in the home.

Family Asset Approach

Secondly, a family assets approach, akin to the approach of a family court in divorce proceedings, which undertakes a survey of the parties’ entire course of dealing – thus going far beyond the approach in Lloyd Bank v Rosset – which suggests that property should be deemed to be held equally between couples.

Proprietary Estoppel

The doctrine of proprietary estoppel will grant an equitable interest to a person who has been induced to suffer detriment in reliance on a representation that she would acquire some rights in the property as a result.

Proprietary estoppel is a remedial doctrine whereby the court may award any one of a number of rights ranging from the entire freehold through to merely equitable compensation in money.

Unconscionability

The most recent trend in the UK case law has been to develop an approach based on avoiding unconscionability of the defendant were permitted to deny the claimant an equitable interest in the property. The ultimate aim is to reach a fair result and to supply the parties with a common intention if that is necessary.

Note 1 : Alastair Hudson, Equity And Trust, 6th Editon, 2010, London, Routledge Cavendish. pp.631-632.