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THE LAW REFORM COMMISSION OF HONG KONG - page 184 / 360

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maintenance who do not wish to divorce or pursue judicial separation.784

6.145The amendments made by the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997) have redressed many of the defects of this ordinance.  It remains to be seen how the courts will resolve the apparent conflict between the mandatory requirement of section 6, prohibiting an order, inter alia, of custody when there is adultery, and the obligation to take the best interests of the children into account in the making of any order under section 5(1), including an original order of custody under section 5(1)(b).

6.146We welcome submissions on whether the Separation and Maintenance Orders Ordinance (Cap 16) is of any practical use, rather than embarking on detailed recommendations for its reform.

Domestic Violence Ordinance (Cap 189)

6.147There is no provision in the Domestic Violence Ordinance or the Guardianship of Minors Ordinance as to the effect of an order for an injunction on existing orders of custody, guardianship or access.  Section 3(2) does provide that the court shall have regard to, inter alia, the needs of any child living with the applicant. The impact on access orders of an injunction excluding a spouse from the home needs to be addressed.785  While recognising that it is in the best interests of the child to have regular contact with both parents we take the view that the protection of a spouse and children from violence must be more important than maintaining regular contact.  If the level of current conflict between the spouses is high, then contact can end up being a weapon between the parents, and this cannot serve the best interests of a child.

6.148It would be useful if, for example, there were a provision suspending access or contact orders where a non-molestation order has been made against a respondent parent, or an order excluding him from the home until there was an application by the excluded parent for an order to resume or vary access.  Otherwise, the applicant parent of a child will have to apply for an order to suspend or vary the access or contact order, at the same time as the application for the injunction.  The court should also have the flexibility to make consequential orders of residence or any other aspect of parental responsibility that meets the best interests of the child.

6.149We recommend that the court should be given power, when making an injunction under the Domestic Violence Ordinance (Cap 189), to suspend a prior access or contact order or vary a prior order so as to make a supervised access or contact order, which avoids the risk of the parents coming into physical contact with each other.  The court should also be given power to make consequential orders determining the residence of a child or any other aspect of parental responsibility that meets the best interests of the child.

784 Hewitt (ed), Hong Kong Legal Practice Manual - Family, (1998) at 23, though unfortunately it does not refer to the amendments made by the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997).

785 See chapter 2 supra.

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