Lcsa v. Ap

FCMC 2295/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2295 OF 2014

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J U D G M E N T
(ACCESS)

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1.This is the trial in respect of the access arrangements for two teenage girls (the Children). The Children have expressed very strong negative feelings towards the Respondent (the Father). They do not wish to have any further contact with him. The Petitioner (the Mother) is agreeable to reasonable access to be granted to the Respondent. However, in the light of the Children’s resistance, she asks the Respondent to start contact by indirect access. She hopes that the Children can eventually progress to direct access with the Respondent but asks that the Children’s emotional, physical and educational needs be taken into account in making future access arrangements. The Respondent does not accept the Children’s alleged resistance towards him. He says that this is the result of deliberate alienation by the Petitioner and her family. He is concerned that if the Children were given the choice, they would never have any contact with him. He argues that it cannot be in the Children’s best interests to grow up without knowing their father. He also stated that the Children are coddled by the Mother and his involvement with the Children would encourage them to be independent. He wants an order for defined direct access. He is prepared for the first 6 meetings to be supervised by a third party of his choice.

2.The issue before the Court is what access arrangements are in the best interests of the Children.   

Background

3.The parties were married in Hong Kong on 11 July 1988. The elder child (K) was born on 7 April 2000 and is now 16 years old. The younger child (S) was born on 24 May 2001 and is now 15.  Bother Children are studying in a well known international school.

4.The Petitioner is a Geotechnical Engineer. The Respondent is a Doctor in Geology, specializing in the mining field. During the marriage, the Respondent has had to travel extensively for work and was away from Hong Kong for about 4 to 5 months per year. In 2006, the Respondent set up a mining company called A Limited.

5.The Respondent was diagnosed with depression with anxiety in 2008. He stopped working for about 2 years and was under the care of a private psychiatrist, Dr Samuel Lai between 2008 and 2012. He was prescribed with antidepressants and hypnotic medications. Although he responded well to the medications, his depressive symptoms fluctuated at times. The Respondent resumed the management of A Limited in 2010 but had to step down in 2012 as a result of a relapse of his depression. He says that he has continued with antidepressants prescribed by a doctor in England during this time.

6.The Respondent had been taking care of his best friend who was suffering from terminal cancer. He says that was under great stress and his mental state deteriorated. As a result of the increased use of Stilnox to combat his insomnia, the Respondent became irritable with anger outbursts. He also displayed irrational thinking and out of character behavior. The Respondent says that he was not aware of these side effects until he resumed treatment with Dr Lai in February 2014. The medications were adjusted in March 2014 and his sleep improved. The Respondent says that he is now in a stable mental condition. 

7.The parties are the joint owners of 3 properties, 2 of which are in Hong Kong and 1 in England. Because of his illness, the Father has been unemployed since 2012.  He has devoted his time and energy towards the renovation of the property in England and to the care of his late best friend.

8.The properties in Hong Kong are in the same development on Hong Kong Island, one in Tower X and one in Tower Y. Tower X has always been used as the matrimonial home. Tower Y was rented out until 2008.

9.According to the Wife, the Respondent can be very controlling and abusive. She says that he has verbally abusive tantrums, berating and threatening when he was angry. She also says that he treats the Children in the same way, that he becomes very angry if they disobeyed or challenged his instructions [Petitioner’s 1^st Affidavit/para 7]. The Father had a very low tolerance of noise. He spent part of his time in England since he stopped work in 2012. Because of the above mentioned matters and since 2009, the Respondent lived part of the time in Hong Kong in Tower Y, whilst the Petitioner and the Children lived in Tower X. 

10.Matters came to a head in February 2014. The Respondent’s best friend passed away on 13 February. A wake was to be held on a beach on 23 February. Both parties were going to attend. The Respondent asked the Petitioner to bring champagne to the wake. However, when the Petitioner asked whether champagne glasses or plastic cups should be provided for the drinks, the Respondent became very offended. He told the Petitioner not to go to the wake. The Petitioner defied his wishes. There was then a confrontation in the early hours of the next day at the former matrimonial home. This was followed by a very angry message to the Petitioner on 24 February.

11.On the evening of 24 February, the Petitioner went to stay with her sister (the Sister), who lived in Tower Z of the same development. The Children stayed in Tower X with the helper. The Respondent returned to Tower X that night to look for the Petitioner. When the Petitioner did not return, the Respondent woke up the Children past midnight, detained S in her bedroom and interrogated her as to the Petitioner’s whereabouts. When S refused to tell him where the petitioner was, he took away S’s computer, school workbook and octopus card. He also threatened to deprive S of her inheritance.

12.On 25 February 2014, the Respondent went to the Sister’s apartment and entered the premises using a spare key. According to the Petitioner, the Respondent was threatening and abusive. The Sister and her husband had to threaten to call the police before the Respondent would leave.

13.The next day, the Respondent bombarded the Petitioner with phone calls and angry messages. He also threatened to go to the Petitioner’s office if she did not answer his calls. The Petitioner told him that his behavior was unacceptable and that she had had enough. The parties met in Tower X that evening. There was a heated discussion. The Children stood up for the Petitioner but that only made him even angrier. He refused to listen to pleas for the return of S’s computer and school workbook which she needed to complete her homework. He also threatened to beat up S if she dared to speak to him like that again. The Respondent then went inside the Master bedroom and refused to leave. The Sister and her husband went to Tower X to help. However, the Respondent pushed the Sister and threw a Samsung tablet at her which resulted in a scuffle. The Sister called the police and the Respondent was arrested and charged. Eventually, the Respondent pleaded guilty and was fined $1,000 and was bound over for a period for 12 months.

14.The Petitioner and the Children immediately moved out of Tower X and went to stay with the Sister. The Respondent went to the Sister’s apartment after he was released from the police station. The police were called again and they managed to persuade the Respondent to leave. However, the Respondent threatened to return the next day and threatened that he would open the door with a crow bar if necessary.

15.The Respondent then went to Tower X where he proceeded to cut up the Petitioner’s clothes and chop S’s desk with a cleaver. This was followed by angry messages to the Petitioner and directly to S. In his message to S, he told her that she would be deprived “of many things (S) wanted in life”.

16.As a result of the above mentioned events, the petitioner issued a Petition for divorce based on unreasonable behavior on 28 February 2014. She also made an ex parte application for a non-molestation and ouster order under section 7 of the Domestic Violence and Cohabitation Relationships Violence Ordinance Cap 189 on the same day.  The matter was heard on an urgent basis. An order was granted in terms of the Petitioner’s application (the Order). An inter partes hearing was listed for hearing at 11 am on 4 March 2014.  Under the Order, there was liberty for the Respondent to apply for discharge or variation upon 48 hours’ notice.

17.The Respondent was absent at the hearing on 4 March 2014. The Order extended until the First Appointment hearing on 19 May 2014.

18.On 19 May 2014, the Respondent was legally represented. A hearing was fixed on 5 August 2014 to determine the extension of the Order. Directions were given for the filing of Affidavits. The Order was slightly amended and extended by consent until that hearing date.

19.The parties filed a Consent Summons in respect of the care arrangements for the Children on 26 May 2014. In that summons, it was agreed that the Petitioner would be granted sole custody, care and control of the Children. No Affidavits were filed by the parties in respect of the Order. By a Consent Summons filed on 28 May 2014, the parties agreed that the Order would be extended “until the grant of Decree Absolute unless earlier termination or amended by order of the Court on the application of either party”. Orders in terms of those two summonses on were made on 3 July 2014.

20.On 17 September 2014, a children’s meeting was held pursuant to the Children’s request.

21.The Respondent has maintained the position that there should be immediate direct access to the Children. On 23 June 2015, the Court, on its own motion suggested that the Order should be varied to allow the Respondent to have indirect contact with the Children by electronic means in an attempt to allow the Respondent and the Children to commence rebuilding their relationship prior to this trial. Unfortunately, the Respondent had refused to make use of this opportunity because he was of the view that indirect contact was unacceptable.

Applicable Legal Principles

22.The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child are set out in Section 3(1) of the GMO, which provides:

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held on trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i)   shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii)  shall not take into consideration whether from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

23.The meaning of “Paramount Consideration” is explained by Lord MacDermott in the case of J v C [1970] AC 668 at 710:

“The second question of construction is as to the scope and meaning of the words “…shall regard the welfare of the infant as the first and paramount consideration”. Reading those words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has to be understood.”

24.According to Rayden and Jackson on Divorce and Family Matters (18^th Edition, Chapter 36.14, 36/11), the word ‘welfare” has a similar meaning to “best interests”, which is interpreted as:

“the word “welfare” must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only, moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded. ‘Welfare’ and ‘best interests’ are synonymous.”

25.In England where the same welfare principles apply to children matters and from which the Hong Kong section 3(1)(a) of the GMO were derived, the courts are required to have regard to the matters specified in the Children Act 1989 which have come to be known as “the welfare checklist”. Hong Kong does not have a Children Act. However, the Courts would almost invariably make reference to the checklist in determining children matters. Such checklist is also proposed in section 9.29 of the Report on Child Custody and Access published by the Law Reform Commission of Hong Kong in March 2005. The Report recommends that a Court shall have regard to:

(a)  The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)  The child’s physical, emotional and educational needs;

(c)   The nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  The likely effect on the child of any change in the child’s circumstances;

(e)   The child’s age, maturity, sex, social and cultural background and any other characteristics which the court considers relevant;

(f)   The attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)   How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)   The practical difficulty and expense of a child having contact with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)   The range of powers available to the court under this ordinance in the proceedings in question;

(l)   Any other fact or circumstance that the court thinks is relevant.

26.Some of the factors mentioned in the checklist are not applicable to the present case. The Court will only refer to those which are relevant. Further, it would not be necessary for this Court to resolve each and every factual dispute between the parties.

The Petitioner’s Evidence

27.The Petitioner’s allegations of abuse and threats to her and the Children, criminal damage and eventually actual physical violence to the Sister were set out in the Petition. The Petition was uncontested. A Decree Nisi was granted on the basis of that Petition.

28.In the trial, the Petitioner relied on three Affidavits filed in these proceedings (including the Affidavit filed in support of her ex part application).

29.The Petitioner’s 1^st Affidavit was in support of the Order. She gave a very general description of the dynamics within the family. She then went on to describe the events between 13 and 26 February 2014. An ex part injunction was granted on the basis of that Affidavit. The Respondent failed to appear in Court on the return date despite a provision in the Order that he was at liberty to apply for discharge with 48 hours’ notice. Not only was no application ever made by the Respondent for discharge of the Order and no evidence filed by the Respondent, it was ordered by consent that the Order be extended until the grant of a Decree Absolute or earlier termination or variation. The only occasion when discharge of the Order was mentioned was in the Respondent’s skeleton and solicitor’s submissions for the CDRs.

30.The Petitioner gave a much more detailed description of the marriage and the Respondent’s relationship with the Children in her 2^nd Affidavit.

31.The Petitioner described her marriage with the Respondent as abusive. Throughout the years, the Respondent has had difficulty controlling his emotions. He suffers from erratic mood swings, causing the Petitioner and the Children to be in a constant state of trepidation. He would become enraged over trivial matters. When he was in a bad mood, he would take it out on the Petitioner, sending her abusive messages and often shouting at her in front of the Children. A series of messages sent by the Respondent since 2009 was produced. In 2009, the Respondent assaulted the Petitioner in the Children’s presence during a holiday in Hampshire simply because he was unhappy with her cooking. When she tried to leave the following day, there was a further physical struggle. On the way back from a holiday from Mauritius earlier that year, the Respondent had a temper tantrum on the aeroplane. The Children have witnessed all this and have felt pressurized, insecure, vulnerable and fearful throughout their childhood.

32.According to the Petitioner, the Respondent has taken up minimal parental responsibility and has therefore always had a very distant relationship with the Children. Initially, she thought that the Respondent’s non engagement was due to his extensive travel schedule for work. However, he failed to participate in the Children’s lives even after he became unemployed, making no effort to attend any of the Children’s activities. Not only was the Petitioner left to look after the Children on a day to day basis, she also had to make all major decisions in respect of the Children’s education. He was consistently critical of the Children without any regard for their feelings or the need for encouragement. The Respondent was disinterested in the Children’s homework and failed to turn up at important school meetings. The Petitioner summed up the Respondent’s parenting attitude by referring to a message he sent on 12 February 2014:

“Nobody ever did that 4 me. I was just left to make my own choices. Got zero guidance. Nobody ever come and help me. I was just left alone all the time to get on with it in a cold bedroom in winter. If I didn’t do it, nobody would have checked or cared”

33.The Petitioner described the Respondent’s behavior towards the Children variously as cold, hectoring and harsh, based mostly on threats, punishments and emotional or psychological pressure.  She says that the Respondent was aware of the Children’s feelings towards him for a long time but he has no insight of the impact his behavior has on the Children. The Children were significantly traumatized by the events of February 2014, but the Respondent had no empathy for the Children’s feelings. He has labeled their feelings as “teenage theatrics” which in his view should be stopped immediately. She summarized the situation as follows:

I understand that K and S’s reaction may seem quite extreme, as they are both adamantly against having any contact with their father…It is clear from the interviews with the Judge and the Psychologist that the incident in February 2014 was the tipping point. The girls had told independent third parties that they had endured years of feeling simultaneously scared and rejected by their father. Their father’s passive-aggression and non-engagement in their early childhood have left a lasting impact on them. In fact, the girls and I have spent years “walking on eggshells” around the Respondent, not knowing what would trigger him to have an outburst. The girls have lived with this fear for years and have been feeling threatened and insecure. So it is wrong to characterize the present situation as resulting only from the incidents of February 2014. It was just the last straw…

34.The Petitioner updated the Court on the Children’s condition in her 2^nd and 3^rd Affidavits. She says that the Children have been much happier after the Order but are still fearful of the Respondent. She described the Children’s panic at the mere thought of seeing the Respondent.

35.The Petitioner pointed out that the Respondent has refused to reconnect with the Children even when the Court allowed him to do so. Instead of focusing on the best interests of the Children, the Respondent has been dragging on these proceedings to put pressure on her and he is using the Children as a bargaining counter in these proceedings to pressurize her into a compromise.

36.The Petitioner explained that she is concerned about direct contact between the Children and the Respondent. This is because of the Respondent’s inability to control his temper and his lack of insight to or empathy for the Children’s feelings even after the events in February 2014. This is demonstrated by the Respondent’s behavior during these proceedings, his messages to the Petitioner and his insistence of immediate direct access. For example, on 8 December 2015, the Respondent’s solicitor had to ask that the Respondent be excused from the Court when he started shouting during the hearing. He has insisted on immediate direct contact despite the views expressed in the expert reports. The Respondent has continued to send messages to the Petitioner where he calls the Children’s fear “excessive teenage theatrics”.

“I am getting really fed up of all this ‘I’m scared’ rubbish. S plays rugby and netball where she gets pushed, risk of teeth knocked out and bruised. BUT Me threatening to hit her is justification for Arrest and prosecution” (15 April 2014

“The girls are displaying excessive teenage theatrics and you comment about me ‘changing behaviour’ is just another unhelpful remark…The issues they complain about are so small in the wider world, but they are teenage girls, so let them have their day in Court. The girls will gripe to the judge and just make any CDR agreement from me harder. If you want to act in a helpful way, they need to get the message to stop behaving like children and look forward not back” (7 September 2014).

“Your decision to poison the minds of my daughters and blockade access since Feb 2014 has a consequence. I see no basis for any FDR settlement, regardless of date. I told you very clearly, my view is two trials or no trial”

“We are not going to reach an FDR agreement in December 2015. ..I have told you this many times now given your position on access. My position is very explicitly stated in Form E. We will go to a Financial Trial” (email on 6 November 2015)

The Respondent’s Evidence

37.The Respondent has filed no evidence save for his Form J. The parties were directed to file their Affidavits in respect of access by 17 June 2015. Subsequently, the time for filing of evidence was extended to 1 July 2015 by agreement. Unfortunately, the Respondent still filed no evidence. The Court further extended the time for the Respondent to file his evidence until 15 September 2015. Despite that, no Affidavit was filed. The Respondent’s solicitors ceased to act shortly before the trial.

38.For the purposes of the trial, the Respondent only filed his open offer where he made it clear that he has deliberately chosen not to file any evidence. He only complained about the Court’s handling of these proceedings. During the trial, the question of parental alienation was raised. The Respondent then alleged that it was not parental alienation but family alienation. He explained that the Petitioner’s maiden family had conspired with her to ostracize him. The Court reminded the Respondent again that he has filed no evidence in that regard. He was reminded to put his allegations to the witnesses during his cross-examination. However, he indicated that he had no cross-examination for the Petitioner. The Court procedure was explained to him. In addition, the Court invited the Respondent to consider giving evidence on more than one occasion despite his failure to file any evidence. Those invitations were declined.

The Psychologist Reports

39.Dr Chan Siu Ling has filed 2 psychological reports in respect of each Child.

The First set of psychologist reports

40.The purpose of the reports was to facilitate the Court to understand how the Children experienced their father throughout their childhood and how these experiences have impacted on their emotional development. The Children were interviewed individually.

41.Both Children described a very distant relationship with their father. In fact, S told Dr Chan that the father/daughter relationship never existed. Both Children stated that the Respondent was always away from home. Even when he was at home, there was little, if any interaction. The Respondent acted as if he did not care about his family.

42.Neither of them had any positive memory of their father. Instead, both of them described their time with the Respondent as a misery. They both stated that they were very scared when the Respondent was home. He was persistently complaining, rude and intolerant of noise. K could only play the piano with head phones. They had to keep quiet and were not even allowed to turn on the air conditioner, as the Respondent perceived that as noisy. S explained that she was not allowed to laugh or speak her mind. Neither of the Children felt that they had any freedom at home.

43.Both Children stated that the Respondent would often become very angry. K says that he would argue, blame, swear and shout. S described how the Respondent would berate and belittle their Mother when he became angry. Both Children felt that their mother had devoted herself to the family, both financially and emotionally. They were very angry with the Respondent’s treatment of their mother. However, neither of them dared to confront the Respondent. S stated that she feared that the Respondent would hurt her, her mother and her sister if she did. S had tried to defend her mother on occasions but was invariably told to shut up, sit down or go to her room. K would avoid conflict by staying in her room or going to her cousin’s house.

44.Both Children stated that the Respondent’s behavior has had an effect on them. K felt that she could not be herself at home as the Respondent was judging her.  She could not feel at ease when the Respondent was at home. S says that the Respondent had caused her emotional damage. She is anxious, lacks confidence and would sometimes stutter. She has a lot of self doubt. She would sometimes be rude to others because of her bottled up anger.

45.Neither Children had any trust in the Respondent. K witnessed the way that the Respondent had threatened her sister and hurt her aunt. She felt incredulous that any father could treat his family in the way that he did. She said that the Respondent had promised to change his ways many times but he never did.  S felt that the events of February 2014 demonstrated that her father could punish her by taking away her school books, restrict her behavior by threatening to beat her up and intimidate her indirectly by chopping her desk. The Respondent has continued to hurt her by sending her a message, telling her that she would be deprived of her inheritance. Both of them felt that the Respondent is merely using his illness as an excuse for his behavior in February 2014.They pointed out that the Respondent had always had terrible temper outburst with absolutely no consideration for others. Neither of them believed that the Respondent would change. S thinks that it is a part of his personality, rather than a result of his illness.

46.Dr Chan concluded that any compulsory access would only serve to make the Children miserable, reinforce their anger and helplessness and have a negative impact of their emotional recovery.

The Second set of Psychological Reports

47.The Children were again interviewed individually for the second set of reports. Both Children appeared to be happier. K reported that without the Respondent, she felt that she could be herself and talk freely. Her mood and concentration had improved. She was now able to enjoy her subjects at school, she felt more confident and was able to make plans for her future education. S said that she was now able to listen to music, dance and laugh at home. She felt more confident and was not afraid that she would be unexpectedly scolded for making any noise. She felt that she was more able to express herself.

48.Despite their improved mood, both Children still feared any direct contact with the Respondent. K described an incident when she thought that she saw the Respondent on the street. She panicked and her heart pounded very fast. She could only calm down after the petitioner reassured her that it was not the Respondent. S was still very angry and fearful about the events in February 2014. She saw the Respondent near her home on a couple of occasions and she immediately ran away out of fear. She also blamed herself because she thought that she was making her mother suffer in the access dispute. She disclosed to Dr Chan that she has thought about committing suicide to lessen her mother’s burden and stop her own anger. Neither Children believed that the Respondent’s request for access was genuine. They believed that he was using them to punish the Petitioner and negotiate a better financial settlement. Both of them were adamant that they did not wish to see the Respondent.

49.Dr Chan concluded that any compulsory access arrangement would be inappropriate as it would hamper the psychological recovery of the Children.

Dr Chan’s Testimony

50.Because the Respondent argued that there was parental/family alienation, Dr Chan was asked to specifically address those concerns in her testimony. In the emails produced by the Petitioner, the Respondent alleged that the Children had been poisoned by the Petitioner and her family. He also alleged at earlier hearings that the Children had concocted a story together. He pointed out that this is evidenced by their very similar complaints about him. Dr Chan explained that the Children’s resentment had built up over many years. They lived together and many of their experiences were the same. It was therefore not surprising that their description of the problems at home were very similar. Dr Chan pointed out that despite the similarity of their complaints, the Children each gave different examples of their experiences with the Respondent. They were tearful and shivering during the interviews. She was of the view that the Respondent’s treatment of the Children during the marriage amounted to subtle emotional/psychological abuse and that the Children’s fear, distress and resistance were genuine. She explained that the Children are intelligent teenagers with independent thought. It would be very difficult to influence them. She could not find any evidence of parental/family alienation or concoction.

51.Dr Chan pointed out that the Respondent may be referring to parental alignment, which is very common in family cases. The Children have witnessed and experienced and deterioration of the marriage and may align themselves with one of the parents. This is different from parental alienation where there is a deliberate attempt to prejudice the children.

52.Dr Chan only stated in her reports that compulsory access would be inappropriate. She was asked to clarify what access would be appropriate. Dr Chan told the Court that from the view of a therapist, she was recommending no access order in the present case. She says that the Children are suffering from Post-Traumatic Stress Disorder and must be given time to recover. She was of the view that even indirect access would interfere with the recovery of the Children. She explained that from the Children’s perspective, the Respondent was the abuser and they were the victims Any contact would make the Children feel that the Respondent could intrude into their lives and would only serve to reinforce their anger and helplessness. However, she agreed with the Court’s suggestion that a dedicated email account could be set up for email contact, so that the Children could read the emails at their own pace.

53.The Respondent challenged Dr Chan’s diagnosis of Post Traumatic Stress Disorder. He pointed out that the Children were both high achievers at school and they have continued to be so after February 2014.  Dr Chan explained that a patient with depression is still able to function normally and can sometimes even be happy. She is unable to assess the extent to which the Children have been affected without knowing their pre-morbid state. The Children may have been able to achieve even better results without the impact of the Respondent’s behavior.

Social Investigation Reports

54.Two reports were filed by the Social Investigation Officer, Mr Lau Tak Hon, Paul. The description of the family dynamics and father/daughter relationship given by the Petitioner and the Children have remained consistent. The Respondent, however, gave a very different picture. The Respondent stated admitted that there were issues over his insufficient involvement in the Children’s education over recent years. He says that he is not a domineering person but he is of strong mind. It was difficult for him to speak when he was in a depressed mood. He found it easier to express himself in writing and has therefore sent a lot of text messages to the Petitioner. He stated that he was involved in the care and discipline of the Children, especially after he stopped working in 2012. The family often travelled together. He was concerned about the Children’s development and education, although maybe in different ways from the Petitioner. He described his relationship with the Children as caring and friendly.

55.The Respondent told Mr Lau that he missed the Children. He was frustrated that he was prevented from having any communication with them by the Order. He hoped that the Order could be lifted or amended so as to allow him to have contact with the Children by e-mode (1^st SIR/para 61). He indicated that he accepted the reasonable access arrangement but was concerned that it would not work in the absence of goodwill from the Petitioner. He did not understand the Children’s resistance towards him. He suspected that they have been influenced by the Petitioner and her family. However, he admitted that his values are different from those of the Children and there have been differences and conflicts in their view and handling of daily living matters. This description is consistent with that in the Respondent’s Form J.

56.Apart from the parties and the Children, Mr Lau also collected information from other family members and a private counselor, Ms Regine YK Yuen. Ms Yuen told Mr Lau that the Petitioner has sought professional help from her intermittently since 2009 regarding her marital problems. In a joint interview in April 2014, Ms Yuen noticed that S had symptoms of Post-Traumatic Stress Disorder.

57.Mr Lau concluded at the end of his 1^st report that the Children have had negative feelings towards the Respondent for a long time, although the Respondent may not have been aware of them. Those feelings have been aggravated by the events of February 2014. Mr Lau concluded that any form of defined access will probably not serve the purpose but add stress to the Children. He explained that an order for reasonable access would serve as a recognition of the need of access. However, he thought that the access may not materialize. Both parents will have to make an effort to set communication into motion.

58.The Respondent’s stance in respect of access had changed by the time of the 2^nd Social Investigation Report. Instead of agreeing to reasonable access, he was asking for immediate direct defined access. He refused to participate in the investigation. Mr Lau maintained the view that any form of defined access would not be beneficial in the light of the Children’s resentment. He added that access should progress according to the wishes and pace of the Children.

59.In Court, Mr Lau stated that he expected the reasonable access to commence with only indirect access. He told the Respondent that it may be a disappointing and frustrating process for him. The Children are already teenagers. It would not be possible for the Petitioner to force them to attend access.  Mr Lau understood the Respondent’s concern that the Children may not respond to any of his emails. He told the Respondent that it may take the Children a very long time to overcome their fear and resentment. He urged the Respondent to demonstrate his unconditional love for the Children by being patient and understanding.

Conclusion

60.The Petition in this case was based on unreasonable behavior, including his behavior towards the Children. The Petition proceeded on an uncontested basis. The only conclusion is that those allegations are admitted by the Respondent.

61.The Petitioner has filed 3 Affidavits in these proceedings. Despite being given ample opportunity, the Respondent has failed to file any evidence to challenge the Petitioner’s allegations.

62.Instead of filing evidence, the Respondent complained about the way the Court has dealt with this case as a preamble to his open offer filed on 1^st April 2016. He alleged that the Court had started these proceedings by refusing to accept an Affidavit from him. Evidence is filed at the Registry and not by handing documents to the Bench. Apart from his Form J, no evidence has been filed by the Respondent. There was an occasion when the Respondent’s solicitor handed a bundle of documents downloaded from the internet about parental alienation to the Court. The Court pointed out to him that these were matters of expert evidence. The Respondent cannot simply produce information downloaded from the internet and expect it to be treated as evidence.

63.There were also complaints about the Order. He alleged that the Order was contrary to the principles of co-parenting responsibilities and that the Court has made it plain that it would not discharge the Order. This is a completed distorted version of what happened. The Order was made ex parte on the strength of the Petitioner’s 1^st Affidavit. There was provision in the Order for the Respondent to apply for discharge by giving 48 hours’ notice. An inter partes hearing was fixed for 4 March 2014. The Respondent failed to appear at that hearing. In those circumstances, the Order was extended until the next hearing on 19 May 2014. By that time, the Respondent was legally represented. If the Respondent was of the view that the Order was in any way wrong in law or principle or that there were any grounds for discharge, he could have applied for discharge at any time. He did not do so. In anticipation of the argument on the extension of the Order, the Court gave directions for the filing of Affidavits. No Affidavit was filed by the Respondent. To the contrary, the Order was extended until the grant of Decree Absolute BY CONSENT. Variation of the Order was mentioned in the course of the CDR No formal application was made and no evidence was ever filed. It appeared that the Respondent expected the Court to discharge or vary the Order on its own motion on the Respondent’s mere say so. The Court pointed out that the Order was extended by consent. There was no reason for the Court to discharge it in those circumstances.

64.The Respondent appeared to suggest that the Court had connived with the Petitioner to alienate the Children from him. This is again a distortion of the facts. The Court, on its own motion, suggested that the Order may be varied to allow indirect access. The Petitioner immediately agreed but the Respondent resisted. The Court then explained that the suggestion was made to encourage reconnection between the Respondent and the Children in the hope of some improvement by the time of the trial. The suggestion was eventually accepted by the Respondent’s solicitor and an order was made by consent. Despite the variation, the Respondent had refused to exercise his indirect access. With full knowledge that the Order was extended until the grant of Decree Absolute, the Respondent indicated in his open offer that he would be doing everything in his power to delay the ancillary relief proceedings. Since the Children’s maintenance is still pending, the Court would not be in a position to grant a section 18 declaration even at the end of this trial. Without such a declaration, the parties cannot apply for a Decree Absolute. In other words, any delay to the ancillary relief trial will only serve to further extend the Order.

65.Despite the evidence filed by the Petitioner, the Respondent has refused to cross-examine the Petitioner. In other words, the Petitioner’s evidence has remained unchallenged, whether by way of evidence or cross examination.

66.The Respondent has put forward a completely different picture of their family life to Mr Lau. The statements he made to Mr Lau were not under oath. Because of his refusal to give evidence in Court, he could not be cross-examined. In those circumstances, the Court can place little, if any weight on his version of facts. Further, the Petitioner has exhibited a collection of messages sent by the Respondent since 2009. Those messages are wholly inconsistent with the loving relationship described by the Respondent.

67.The Respondent also alleged parental and or family alienation. He told the Court that the Petitioner’s father married a young girl from China after the Petitioner’s mother died. The Petitioner and her siblings refused to have anything to do with their stepmother for 10 years. Again, those allegations were only raised for the first time during the trial. They were not made on oath. The Respondent refused to give evidence. That means that the Petitioner would be deprived of any opportunity to answer those allegations and to cross-examine the Respondent on them. In those circumstances, the Court cannot those allegations as evidence or give any weight to them.

68.In fact, the evidence demonstrated the contrary. Throughout these proceedings, the Petitioner had been prepared to accept reasonable access to the Respondent. Despite the animosity displayed by the Respondent, she took the Children to visit their paternal family in the United Kingdom in the midst of these proceedings. She has kept the Respondent informed of the Children’s progress. When the Court suggested that the Respondent may be allowed to contact the Children by email, the Petitioner immediately agreed. 

69.The Respondent showed the Court a picture of him and the Children taken during a hike shortly before the February incident. That photograph was in fact attached to his Form J. The Children looked happy in the photograph. However, the Petitioner, the Children’s aunt, uncle and cousins were also present. There was never any dispute that there were times when the family was relatively normal.

70.Mr Lau’s recommendations were in line with the Petitioner’s proposal. He was barely examined by the Respondent.

71.The most controversial witness was Dr Chan. Her expertise was challenged by the Respondent during the trial. This issue was only raised for the first time in the midst of the trial. Dr Chan has consistently recommended that there should not be any compulsory access. If the Respondent had been unhappy about Dr Chan’s expertise or opinions, he could have made an application under Order 38 of the Rules of the High Court. No such application was ever made. Dr Chan is a registered Clinical Psychologist. She is clearly qualified as an expert.

72.The Respondent also challenged Dr Chan’s opinion. He pointed out that she has not previously dealt with expatriate families. She had only given evidence in a few trials. He also criticized her for not asking the Children for specific examples of his alleged “emotional abuse”. Dr Chan is a clinical psychologist. She was asked to give expert evidence on the psychological condition of the Children. This does not depend on their nationality. Most cases in the Family Court are settled. In some of the cases that proceed to trial, experts in private practice are jointly instructed. Dr Chan is not the only psychologist working in the Social Welfare Department. The number of trials in which she was actually required to give evidence does not affect her credibility. It is the quality of her evidence. As an expert, Dr Chan has to exercise her professional judgment to decide what information is pertinent to her assessment. She explained that she cannot adopt a confrontational stance with the Children by persistently asking them for proof of their allegations. Dr Chan was of the view that she had sufficient information from the Children.

73.On the other hand, there was no dispute that the Respondent was prone to temper outbursts. The Court understands that the Respondent may not have been able to control himself as a result of his illness and medication. However, with the benefit of hindsight, it should not be difficult for the Respondent to understand the impact of his behavior on the Children. It must have been very frightening and distressing for them to witness those temper outbursts, especially when they were younger. There appears to be also no dispute that the Respondent was very intolerant of noise. The Children were not allowed to act like children even in their own home. The Respondent also admitted that he has little, if any involvement in the Children’s education (at least in recent years). School events are very important to Children. Parents of most children make an effort to attend school events. The absence of a parent (when the parents of other children are all in attendance) is very sorely felt. The seed of resentment was planted many years ago and has been allowed to grow with time. The Court agrees with the Petitioner, the February events were only the last straw.

74.Unfortunately, the Respondent is still unable to empathize with the Children’s feelings. He is blaming everyone else, except himself for the rift between him and the Children. There appears to be no introspection and that is why the Children do not trust him. His proposal for immediate direct access is wholly unrealistic and would only fuel the Children’s resentment. 

75.In my judgment, this is not a case where there should be no order for access. However, for the time being, the only access arrangement that would be in the best interests of the Children is indirect access by way of email.

76.Accordingly, I make the following orders:

1.   The Respondent shall have indirect access to the Children by email through a dedicated email account;

2.   The Petitioner shall set up a dedicated email account for the purposes of access and to inform the Respondent of the email address within 7 days;

3.   No order as to costs.

Petitioner appeared in person

Respondent appeared in person