Ccmj v. Ssm Formerly Known As Skl

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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DECISION
(Resumption of Defined Access)
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Background

1.This is the adjourned hearing of the Applicant Father’s Summons dated 4 June 2015 which was issued on an urgent basis and heard by this Court in the afternoon of 4 June 2015.  I will refer to this Summons as “Access Summons” in this Decision.

2.Pursuant to an Order dated 13 March 2014 the Father was granted defined access to the child, whom I referred to as “N”, inter alia, as follows :-

“(a) One week from Wednesday after school or 9:30 a.m. if no school to Saturday 9:30 p.m.; and

(b) The second week from Thursday after school or 9:30 a.m. if no school to Sunday at 10:00 a.m.”

3.Following an access which ended on 30 May 2015 the Mother, having discovered an abrasion under the right eye of N and enquired the Father via text messages and also asked N about it, made a report to the Police on 31 May 2015 for suspected child abuse.  The child was then admitted to Tseung Kwan O Hospital for checking and there was police investigation. 

4.On 1 June 2015 which is a Monday, the Mother through her lawyers informed the Father’s lawyers proposing temporary suspension of the said defined access of which the next session would be 4 June 2015 pending further news from the Police and the Social Welfare Department in respect of the suspected child abuse.

5.The Father saw fit to issue the Access Summons on 4 June 2015 on an urgent basis and this was heard in the afternoon.  The Access Summons was drafted, inter alia, in the following terms :-

“1. The Respondent do provide to the Applicant details and particulars of the injury that the Respondent alleges that the child of the family, namely, N suffers from and provide supporting documents, including but not limited to medical reports;

2. Unless otherwise advised by the medical doctor of the Tseung Kwan O Hospital with supporting documents, the Respondent do sent N to attend her usual school activities at xxxxx School (Primary Section);

3. For the purpose of Paragraph 3 of the Access Order dated 13 March 2014, the Respondent do deliver N to the roundabout of the Respondent’s residence in Tseung Kwan O for the Applicant to pick up N if she is not attending school on 4 June 2015 at 9:30 a.m. Alternatively, the Respondent be prohibited from giving any instructions to the school, her servants, agents or otherwise from preventing, prohibiting or obstructing the Applicant from picking up N from school for his access on the 4 June 2015.”

6.Having heard submissions, this Court adjourned the Father’s application for a week to 11 June 2015, directed both parties to jointly write to the Tseung Kwan O Hospital for N’s medical conditions and temporarily suspended the Father’s defined access under the 13 March 2014 Order until further order.

7.By a joint letter dated 10 June 2015 (which is a day before the adjourned hearing), the parties sought to vacate the hearing on 11 June 2015 and re-fix it to a later date.  The Court accepted the application and re-fixed the hearing to 2 July 2015.

8.At the hearing on 2 July 2015 and after hearing submissions, the Court made the following orders :-

“1. Paragraph 1 of the Summons be withdrawn;

2. Paragraphs 2 and 3 of the Summons be adjourned to a date to be fixed not earlier than 13 August 2015;

3. Social Welfare Report be called for as to resumption of Access Order dated 13 March 2014 in English and to be available 7 days prior to the adjourned hearing of the Summons; and

4. Costs be reserved and save that the Respondent’s own costs on 4 June 2015 and of today be taxed in   accordance with the Legal Aid Regulations.”

9.On 29 July 2015, the Father filed a further Summons of which I refer to it as “Interim Supervised Access Summons” seeking, inter alia, the following :-

“1. The Applicant be granted interim supervised access with the child of the family N with the presence and guidance of an independent third party or a Social Welfare officer, every Monday to Friday from 2:00 p.m. to 5:30 p.m. and Saturday from 9:00 a.m. to 1:00 p.m.;

2. The Respondent and/or person related to the Respondent shall not be present during the Applicant’s supervised access with his daughter.”

10.This Interim Supervised Access Summons could only be listed for hearing around a month later on 31 August 2015.

11.On 10 August 2015, this Court received the Social Investigation Report compiled by one Miss Yim Heung Mui (“Miss Yim”) as to the resumption of the Access Order dated 13 March 2014.  Upon reading Miss Yim’s report, this Court directed a short hearing on 14 August 2015 on an urgent basis to arrange for interim supervised access for the remainder of the summer vacation, by that time which only has 2 more weeks to go.  At this hearing, the Father was granted interim supervised access on 20, 21, 27 and 28 August before the hearing scheduled for 31 August 2015.

12.At the hearing on 31 August 2015, parties agreed that pending the substantive argument of the Access Summons, the Father would continue to have interim supervised access on 4 and 11 September (Fridays) (3:30 p.m. to 5:15 p.m.) and 5 and 12 September (Saturdays) ( 9:00 a.m. to 12:00 p.m.).

13.The Father’s grounds for the present application are set out in his 29^th Affirmation, the Mother’s grounds of opposition at her 12^th Affidavit and the Father’s reply at his 32^nd Affirmation.  Reference was also made to matters stated in the Father’s 30^th Affirmation and the Mother’s 13^th Affidavit.

The Proper Question

14.It is trite that the best interests of children are always the first and paramount consideration of the Court wherever there are disputes over custody, care and control or access of children.  The Court would be astute to look into all relevant matters and circumstances, apart from considering the parents’ respective cases, and to find where the best interests of the children should lie.  This is a fact finding process followed by an exercise of discretion which involves no consideration of any complicated questions of law or legal principles.

15.Thus said, the proper question before this Court is whether it is in N’s best interests to have the access arrangement since March 2014, but which had been temporarily suspended by this Court on 4 June 2015, be now resumed ? 

The Social Investigation Report (“SIR”) dated 6 August 2015

16.The SIR was specifically called for by this Court for consideration of resumption of access.  The case officer is Miss Yim Heung Mui (“Miss Yim”). 

17.Miss Yim had arranged 3 accesses for the Father, namely, 30 minutes on 20/7/2015; one hour each on 27/7/2015 and 3/8/2015.  She reported in details as to what had happened during each of the access.  I find the following observation of N by Miss Yim at each of the access respectively and set out in the SIR particularly useful with those important description underlined in italics :-

“18. ……..She appeared to be anxious when she met the father. After warming up for about couple minutes, the girl could talk

with the father spontaneously and play with him freely and happily. The access atmosphere was relaxing and full of laugh……….. When the girl was asked about her feeling right after the meeting with the father, she described herself as nervous before seeing the father and was very relaxed after seeing him.”

“19. ……..She also expressed fear to meet the father at the beginning of access but could interact with the father freely after about 15 minutes later. She played chess with the father, chatted with him and did some artworks with him. In the later time, she even asked for more time to do her drawing with the father….…… The girl was observed to be ease and continued her discussion with the father in designing her drawings. Right after the access, the girl also expressed her relaxed and lessnervous after seeking the father to the investigating officer.

“20. Yet, the girl appeared to be tense and nervous in the third access and required longest time in warming up. Different from the past two accesses, the girl avoided to have contact with the father and always cling to the investigating officer. Only in the latter part, she left the investigating officer alone twice and chatted with the father spontaneously…..After the access, the girl, different from the past two accesses, remained tense and expressed that she did not want to meet the father. She could not further elaborate on it.”

18.At paragraph 28 of the SIR, Miss Yim said :-

“28. …….The girl acted freely and happily with the father during the two accesses and expressed her relax and ease after seeing the father. However, she acted differently in the third access by clinging onto the investigating officer and avoiding having interaction with the father……..”

19.At paragraph 29 of the SIR, Miss Yim made the following important remarks and recommendation :-

“29. No matter how the present incident was, it seemed to be a parenting issue and suspended the contact between the father and child did no help in improving the family relationship. In contrast, it spotlighted the girl and pulled her in between the parents’ conflicts, which stressed the girl much as reflected by the assessment of the girl’s clinical psychologist. It was glad to see that both parents were willing and motivating to receive external assistance to promote the welfare of the girl. In fact, there was already a big team of professionals, e.g. psychiatrist, clinical psychologists, family social worker, social worker for co-parenting services, medical social worker and other private medical practitioners to support the parents and the girl.

Nevertheless, the most powerful one was still the parents themselves to reassure and nurture the girl that she could get the love from both parents without any worry to upset either one.

20.Miss Yim at the end of the SIR recommended as follows :-

“30. ……I would like to suggest the access be resumed as usual as far as possible. …..”

The Memo by Miss Yim (“The Memo”) dated 1 September 2015

21.The Memo was directed by the Court at the hearing on 14 August 2015 when 4 separate dates of interim defined supervised access were arranged for the remainder of the summer vacation (see paragraph 11 above).  Due to Miss Yim was out of town on 2 of the access dates, only 2 access took place on 27 and 28 August 2015.

22.For the access on 27 August 2015, Miss Yim described :

“……She appeared to be anxious when the father showed up. After warming up for about 15 minutes, the girl could talk with the father and play with him freely….. The girl played play-mud, paper craft and different games with the father interactively. Before the session ended,   the girl also asked the father to read a book with her.”

23.For the access on 28 August 2015, Miss Yim described :

“……The girl had stronger rejection to meet the father and expressed via her mother for the company of the social work officer to stay with her during the whole access time. When the girl was interviewed alone, she expressed her fear to meet the father as she worried that the father would take her away from her mother…… She appeared to be very tense while seeing her father. For warming up, the father showed the girl her favourite DVD which he brought upon the request of the girl in the last access. The girl became relaxed after warming up. She played the pretend-cooking with the father happily and interactively in the latter part of the session. The girl also felt ease of the social work officer’s request to walk away from the playroom several times and  continued her play with the father freely.”

24.Miss Yim, in the concluding paragraph of the Memo, had said :

“The atmosphere during the two access was harmonious and relaxing in general.”

The Father’s view

25.Much emphasis was placed by the Father upon the conclusion reached by the Multi Disciplinary Case Conference (“MDCC”) as to the allegation of child abuse complained by the Mother.  The MDCC consists of 8 professionals including police officers, social welfare officers, doctors from Tseung Kwan O Hospital and a clinical psychologist from Kowloon Hospital, and they unanimously concluded that there was no child abuse.  The letter was exhibited as “CCMJ-30-3” to his 30^th Affirmation.

26.Besides, the Tseung Kwan O Hospital where the child N was admitted and having been medically checked and examined also concluded there was no child abuse so alleged by the Mother.  The letter was exhibited as “CCMJ-32-1” to his 32^nd Affirmation.

27.Still further, the class teacher Miss Chan observed that the child N behaved normal without exhibiting any emotional problem when she resumed schooling after the suspected child abuse incident.  This was recorded in the SIR at paragraph 15.

28.Father’s Counsel Miss Athena Wong in her submissions made reference to certain video recordings taken by the Father as early as 20 December 2014, 7 May 2015 and 21 May 2015 of which 2 DVDs were produced as an exhibit “CCMJ-32-2”.  These 2 DVDs were produced without any advance notice either to the Mother’s lawyers or to the Court of their existence.  It simply came in, as one would say, ‘out of the blue’ as an exhibit.  The reason given by the Father was that he was concerned that if he did mention it beforehand, the Mother would place additional pressure on the child N.  There was no further evidence to set out the circumstances when the recordings were taken or the veracities of the contents. 

29.The Father relied upon the 2 DVDs as evidence to show the Mother had coached the child N as to what to say to the social worker.  This had happened on 21 May 2015 which is just 9 days before the Mother made the complaint of child abuse in an effort to deny his access.

The Mother’s view

30.The Mother in her 13^th Affidavit made some comments on the SIR as to the reaction of N before and/or after each of the 3 accesses on 20 July 2015, 27 July 2015 and 3 August 2015 which had happened but not mentioned by Miss Yim in the SIR.  The Mother also refuted the Father’s allegation that she had deliberately refused the Father to bring N to see the clinical psychologist on the 19 June 2015

31.Counsel Mr. Kevin Li for the Mother invited this Court to consider the fact that the police investigation of the Father, at today’s hearing, has yet to complete despite the MDCC conclusion on 16 June 2015.  Further, the evidence of the child abuse actually came from the child N herself and not the Mother’s bare allegation as the Father’s Counsel had so submitted at paragraph 2(a) of her written submissions. The true story of child abuse came from the child N and reflected in the SIR rather than one-sided complaint of the Mother. 

32.Reference was also made to the change in attitude of N who was quite fearful at the beginning of the 3 accesses.  There was at least some reluctance on N to see the Father which might be due to the alleged assault/abuse. 

33.As to the 2 DVDs, both of them are self-serving.  Although no strong views were taken as to the way by which they were recorded and produced, there was contention if they were relied upon as evidence against the Mother for having pressurised or coached the child N in the way which the Father had suggested.

34.Mother’s Counsel reminded the Court that the Father had prolonged delay in his application for general access which this Court had so directed him to do so when the Mother was granted sole custody, care and control of the child back in October 2012.  The present access arrangements are only temporary ones which are not designed to serve for long term purpose nor was it intended to be a replacement of the general access application (at paragraphs 17 and 18 of Mr. Kevin Li’s Speaking Notes).

35.Finally, this Court having had the ‘best interests’ of the child as a determining factor, should consider maintaining the present status quo of interim supervised access of twice a week as opposed to going back to the access arrangement under the Access Order dated 13 March 2014 which the Father is now seeking to reinstate.

The Court’s view

36.I have already posed the proper question to be asked at paragraph 15 of this Decision.  The answer to the question requires consideration of the following in sequence :-

(a) What had happened which necessitated a suspension of the Access Order dated 13 March 2014 ?

(b)  Whether those circumstances that had arisen and resulted in the suspension persists or how likely were those circumstances recur ?

(c) Are there any justifiable reasons, considered upon the evidence available and all the surrounding circumstances objectively and with the ‘best interests’ of the child in mind, to continue with the suspension ?

37.It needs no further elaboration that the Access Order dated 13 March 2014 was suspended on 4 June 2015 because of the alleged child abuse around 30 May 2015 complained by the Mother against the Father.  The complaint was lodged with the Police.  The alleged child abuse had then been looked into and investigated by the MDCC.  On 16 June 2015 the MDCC concluded that the complaint of child abuse was not established.  As rightly submitted by Counsel for the Father, there was no other evidence until now to support any child abuse.  The treating doctor of Tseung Kwan O Hospital also made no finding of child abuse in his medical report dated 14 August 2015 (see exhibit “CCMJ-32-1”). 

38.The fact that the police investigation on the Father is still pending is, in my view, neither here nor there.  First, when the police will complete its investigation is no way to be ascertained.  Such investigation may or may not lead to prosecution.  Even if there is prosecution, it is trite that a defendant charged with an offence is presumed innocent until the contrary is proved and convicted by the criminal court.  Secondly, unless there are overwhelming evidence that the Father was more likely than not would be prosecuted, and further, in the absence of any finding or conclusion of child abuse, to continue with the suspension of the Access Order dated 13 March 2014 would not be in N’s best interests.  Put it the other way, the substratum upon which the suspension order was granted no longer exists.

39.There is no corroborative evidence of the comments raised by the Mother as to N’s reaction at the 3 accesses did occur but was not mentioned in the SIR.  The Court could only take the Mother’s comments at their face value.  On the other hand, I find the SIR comprehensive and useful; in particular, the description of the child’s reaction upon meeting the Father and the Father-child interaction in each of the 3 accesses.  I accept the remarks and recommendation of Miss Yim.

40.For these reasons, I find those circumstances leading to the suspension no longer exists as at the date of this hearing.  Also, considering the evidence readily available, I also believe it is unlikely that those circumstances would recur or there are any justifiable reasons to continue with the suspension. 

41.Regarding Mother’s Counsel’s submission of the status quo access should be the same as the present arrangement rather than the 13 March 2014 arrangement, with respect I do not agree.  But for the suspension on 4 June 2015, the access arrangement as per the Access Order dated 13 March 2014 continues.  There has never been any complaint from the Mother prior to the suspension that the Access Order in 2014 was not in the child’s best interests.  There is also no application for variation of the Access Order dated 13 March 2014 by the Mother.  Accordingly, Mother’s Counsel’s submission is tentamount to taking advantage of the suspension to vary the Access Order in 2014 without any formal application for variation by the Mother.

42.Mother’s Counsel in his Speaking Notes raised 2 technical points.  First, he referred to the Father’s Summons asked for quite different orders none of which concerned an order to resume interim access in full scale.  Secondly, he referred to Section 13(3) of the Guardianship of Minors Ordinance, Cap.13, which provides that interim orders shall not be made to have effect after the end of 3 months.

43.Section 13(3) of Cap.13 provides as follows :-

“(3) On an application under section 10 the court may, in any case where it adjourns the hearing of the application for more than 7 days, make an interim order, to have effect until such date as may be specified in the order and containing –

(a) provision for payment by either parent to the other, or to any person given the custody of the minor, of such periodical payments towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and

(b) where by reason of special circumstances the court thinks it proper, any provision regarding the custody of the minor or the right of access to the minor of either of his or her parents,

but an interim order under this subsection shall not be made to have effect after the end of 3 months beginning with the date of the order (my emphasis) or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order (my emphasis) or on the dismissal of the application.”

44.The Mother in her 13^th Affidavit dated 26 August 2015 at paragraph 28 concluded that complete resumption of access (my emphasis) is not in the child’s best interests.  She further deposed that she believed that a gradual resumption of access (my emphasis) is more appropriate. Further, at paragraph 27 of the same Affidavit, the Mother deposed “….to resume the access arrangement before the child abuse…” Having said so, how could the Mother’s Counsel now raised the technical point that the Father’s Summons referred to different kind of orders and not seeking resumption of full access arrangement ?  Although paragraph 3 of the Access Summons as drafted was not in verbatim to the reliefs presently sought by the Father, say for instance, “resumption of the Access Order dated 13 March 2014” or any similar terms, the fact that the Mother was fully aware of the nature of the application and had had the chance to respond fully by affidavit evidence would not be prejudiced. 

45.Mother’s Counsel’s other submission that the Access Order dated 13 March 2014 lapsed by virtue of Section 13(3) of Cap.13 is, in my view, misconceived.  The 13 March 2014 Order was made to have effect there and then (my emphasis) when it was granted.  It had been in place for about 15 months before it was suspended in June 2015.  No final order had been made so far.  The 3-month period under the statutory provision refers to any interim orders granted shall not be made to have effect after the end of 3 months counting from the date of the Order (my emphasis) and which would only cease to have effect upon a final order or dismissal of the application in respect of which the interim order was initially granted.  It should not be construed as any such Order itself having a 3-month validity period.  With respect, I do not agree with Counsel Mr. Li.

46.Moreover, all along both parties are observing the terms of the Access Order dated 13 March 2014 as to defined access until suspension on 4 June 2015.  Also, I wish to add there is no question of the Access Order of 13 March 2014 having ceased to have effect by virtue of Section 13(3).  The Order dated 4 June 2015 is neither a final order nor an order dismissing the Father’s access application. I also do not agree with Counsel Mr. Li.

Decision

47.For the above reasons, I decided as follows :-

(a) the Order dated 4 June 2015 (suspending the Access Order dated 13 March 2014) be set aside;

(b) the Access Order dated 13 March 2014 be resumed with effect from Wednesday, 23 September 2015 until further Order.

48.Since this application relates to children matters, I believe it is fair and reasonable for making no Order as to costs including all costs reserved.  The Mother’s own costs be taxed in accordance with Legal Aid Regulations.

Miss Athena Wong instructed by Messrs. Payne Clermont, Solicitors for the Applicant

Mr. Kevin Li instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent assigned by the Director of Legal Aid