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parent certain decision making powers.”76

2.19In an interesting judgement on split orders, Lo Chun Wing Yee Lilian v Lo Pong Hing Daniel,77 a consent order for joint custody previously granted was changed to an order of sole legal custody.  The post-divorce relationship between the parents had deteriorated and the mother sought an order of sole custody as she had care and control of the child in Hong Kong.  The father had remarried and was living in Canada.  Liu J stated that:

“courts were generally reluctant to grant or endorse split orders unless the advantages demonstrably outweighed the inherent disadvantages.  Total lack of co-operation between the father and the mother, perpetual absence of the father from the jurisdiction and the undesirability of having more than one voice in the running of the daily affairs of the child fortified the need for removal of the split order.  By vesting sole legal custody in the mother, it would not prevent the father from making a real contribution to the upbringing of the child.”78

2.20Liu J also said that sole custody would facilitate the management of affairs for the welfare and benefit of the child and enable decisions to be promptly made.  The court also ordered the mother, if she brought the child outside Hong Kong on vacation, to give an undertaking to return the child to Hong Kong at the end of every vacation and to give a quarterly report to the father under the heading of education, health and activities of the child.79

Impact of split order on maintenance

2.21 Pegg defined split orders as referring “to the situation where the  courts divide up the bundle of rights and powers which normally constitute custody, giving one parent actual physical care and control, while leaving with the other the legal rights associated with custody”.80  He further stated:

“both under the Separation and Maintenance Orders Ordinance and the Guardianship of Minors Ordinance,81 it is to be seen that if a split order is made giving custody to one parent and care and control to the other, it would nullify the provision that only the spouse with custody could obtain an order for maintenance.”

2.22 Pegg also suggested that the parent with the formal order of custody would not be able to obtain an order of access.  However, since financial orders under sections 4 and 5 of the Matrimonial Proceedings and Property Ordinance (Cap 192) can be made without reference to custody, then joint custody orders and split custody orders should be made under this ordinance.82

76 Bainham at 123, referring to section 8(4) of the Domestic Proceedings and Magistrates’ Courts Act 1978, and section 11A of the Guardianship of Minors Act 1971.

77 [1985] 2 HKC 647.

78 This is from the headnote.

79 Ibid at 651.

80 Family Law in Hong Kong, (3rd ed, 1994), 264.

81 Section 10 (2)(a).

82 Ibid at 265.

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