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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BETWEEN

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D E C I S I O N
(Resumption of Interim Access/Variation of Interim
Access : By Paper Disposal)

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Background

1.This is a protracted and high conflict case between the parties over their daughter N born out of the wedlock since the child was under 2 years old back in 2010.  At present, the child is nearly 8 years old and studying Primary 2 in September this year.  The Applicant is the Father (“Father”) and the Respondent is the Mother (“Mother”).

2.Following a 16-day trial back in 2010, the Mother was granted custody, care and control of N and the Father was granted general access (“the Main Judgment”).  Directions were given that a short hearing be fixed with one hour reserved for determination on details of the general access.  Parties were granted leave to submit written submissions on general access arrangement within 14 days of the Main Judgment.

3.Without going back to each and every step taken by the Father since the Main Judgment, which includes appeals, variations and various other applications, the Father had not and still did not pursue the general access arrangement provided for under the terms of the Main Judgment.  Although the Father had been legally represented throughout these years (save and except a brief moment of only 3 days from 18/4/2016 to 20/4/2016 inclusive), the Father now chooses to linger upon an interim access arrangement granted by this Court on 13 March 2014 (“the 13/3/2014 Order”).  The 13/3/2014 Order was, however, suspended on 4 June 2015 following the Mother’s complaint of suspected child abuse after an access ended on 30 May 2015.  For the sake of completeness, there are 2 more incidents of complaints of alleged child abuse by the Mother.  Suffice to say is that by now all those complaints had been resolved by the Multi-Disciplinary Case Conferences (“MDCC”) with no findings of abuse or prosecution of the Father.  The latest access arrangement now in place since 2 April 2016 is that the Father would have unsupervised access on Saturdays from 10 a.m. to 9 p.m. against certain undertakings given by the Father.  This is by way of consent of the parties modifying the Court Order dated 9 December 2015 when the Father was only having 3 hours weekly supervised access at the Social Welfare Office.

4.The Mother filed her Summons on 12 November 2015 seeking to vary the Father’s access to supervised day access (“the Mother’s Summons”).  She filed her 15^th Affidavit in support of her application and her 16^th Affidavit in reply to the Father’s 36^th Affirmation.

5.The Father filed his Summons on 7 March 2016 seeking resumption of the access arrangement as per the 13/3/2014 Order (“the Father’s Summons”).  He filed his 37^th Affirmation in support, his 36^th Affirmation in opposition to the Mother’s Summons, his 38^th Affirmation in reply to the Mother’s 18^th Affidavit.

6.The parties’ Summonses were listed for a 2-day trial on 28 and 29 July 2016.  Throughout these years, there are different social welfare officers who had prepared various investigation reports.  The latest officer is Mr. Cheng Cho Hong (“Mr. Cheng”) who, after prepared the last report dated 24 August 2015, also transferred out of his post in February 2016. 

7.Both parties are represented by Counsel for this hearing.  Both Counsel informed this Court that the parties themselves would not be giving oral evidence at this trial but to rely upon their respective affidavit evidence filed and also further written submissions on paper.  Thus, only the social welfare officer Mr. Cheng testified at the trial and subject to examination by the parties’ Counsel.

8.Given the fact that neither party decided to give oral testimonies and be cross examined upon their affidavit evidence when their credentials could be tested under oath, I have to say that little weight would be attached to their affidavit evidence whenever there are controversies on any factual issues. 

The applicable law

9.There is not much dispute as to the applicable law and legal principle of “best interests” of N is always the first and paramount consideration of the Court.

The core issue 

10.Given the nature of the parties’ applications, the core issue to be determined is, in so far as access is concerned, whether it is in N’s best interests to now resume the access arrangement as per the 13/3/2014 Order as the Father now so alleged; or, whether the access issue be considered and resolved afresh at this stage, preferably a long term access as opposed to any interim defined access, as the Mother now so alleged ? 

The Father’s application 

11.In a gist, the Father referred to the findings of different MDCC that the Mother’s alleged 3 incidents of child abuse had never been established and that all the professionals within the MDCC, and also the social welfare officer Mr. Cheng who testified in Court at this trial, considered that the Father poses no risk of harm to N and had recommended resuming normal access.  Reference was also made to this Court’s Judgment dated 21 September 2015 where it was said, inter alia, that “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 the child’s best interests.” (see CCMJ v. SSM, FCMP 67 of 2010 at paragraph 38). 

12.Counsel Miss Athena Wong for the Father in her 1^st Closing Submissions (consists of 35 pages and 98 paragraphs) referred to different reports and comments by various professionals made in the past.  To say a few of the professionals, namely, the psychiatrist of Kowloon Hospital Dr. Lee Yat Duen; clinical psychologist of Kowloon Hospital Miss Chan; the social welfare officer Miss Ho; the clinical psychologist Miss Cheung W.S. Irene of Yaumatei Child Psychiatric Centre, Dr. Winnie Wong in her affirmation dated 22 September 2014, Dr. Bill Tsang’s, Counselling Psychologist of Caritas Family Services, observation, and also different social welfare officers in charge such as Miss Chow, Miss Yim and Miss Kiu.

13.Miss Athena Wong filed her further Submissions in Reply dated 14 September 2016.  Cases and authorities relied upon by Miss Athena Wong include CLL v. SW, FCMC No.10564/2009 (Unreported, 17/12/2012); CCMJ v. SSM, FCMP No.67/2010 (Unreported, 21/9/2015), LHM v. HTF, FCMP No.10/2010 (Unreported, 19/5/2011) and Re B (Children) [2009] 1 AC 11.

The Mother’s application

14.The Mother’s stance can be summarised as follows.

15.Counsel Mr. Kevin Li for the Mother in his first Closing Submissions referred to the startling emotions of the child N when she displayed disapproval with the Father as so recorded in the report of Mr. Cheng not to be lightly ignored although this Court is not required to come to any definitive view of the reason; the recommendation of social welfare officer Mr. Cheng was assessed only on weekly 3-hour sessions under his supervision without the opportunity to actually assess N’s behaviours towards the Father when there was no supervised access; the lack of chance for Mr. Cheng to evaluate the situation after March 2016 when the present access arrangements were put in place since he himself was transferred out to other department around end of February 2016.  It was submitted that Mr. Cheng’s opinion was only applicable up to March 2016 and more importantly, he had fairly accepted that he would not be in a position to say whether the current access arrangements are better or worse than before.  There ought to be a further report by his successor in this case on such aspect.

16.Furthermore, Mr. Cheng also accepted that complete resumption of the 13/3/2014 Order might not be practicable in light of N’s present schoolwork, extra-curricular activities and schedules. 

17.Counsel further submitted that the Father had been procrastinating on the general access arrangement as provided for under the Main Judgment back in October 2012 for no apparent reason.  Rather, the Father saw fit to spend time and costs on different applications for variation of interim access, custody, care and control over these years. The Father’s underlying intention for so doing should not be overlooked.

18.Reference was also made to the wellbeing of the child N by maintaining the present access arrangement, say, every Saturday from 10 a.m. to 9 p.m. on condition that the Father complies with a number of undertakings.  The present access arrangement was in fact a modified one by consent of the parties from the earlier defined interim access of only 3 hours per week at the Social Welfare Officer’s office as ordered by this Court. 

19.In his Further Closing Submissions, Counsel Mr. Kevin Li submitted that the Father’s case as per his Counsel’s Submissions is pressing this Court to now resolve and make findings without a trial upon the 3 incidents of child abuse complained of by the Mother which essentially are factual disputes.  This is commonly excluded to be an adjudication done summarily.  In any event, all those incidents are now ‘water under the bridge’ and this Court should now be primarily concerned with the “best interests” of the child and not the parents’ conflicts or differences (see WTV v. WMC, FCMP No.54/2014).

20.As to the evidence of Mr. Cheng, reference was made to the case of WSM v. FSY (a minor: custody appeal), CACV No.352/2004 where it was said, inter alia, that “a social welfare report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles.”

The Court’s Views

21.Given the fact that matters relating to children are always volatile and case sensitive, the Court should at all times be astute to oversee all the circumstances with the “best interests” of the child always in mind rather than meeting the wishes of the parents or simply adopt the recommendation of the social welfare officers in their reports when deciding children matters.  Although from time to time it has been said that social welfare officers are the ‘eyes and ears’ of the Court, it is ultimately the Court’s exercise of discretion to uphold the child’s best interests (see WSM v. FSY supra).

22.Although “normal access” was recommended by both Mr. Cheng and various other professionals in their reports, there remain the important question as to whether “normal access” should automatically be taken to mean the access arrangement defined (my emphasis) under the 13/3/2014 Order ?  

23.In my view, “normal access” should not be equated with the 13/3/2014 Order for 2 reasons.  First, I am not convinced to any extent by Counsel Miss Athena Wong that the defined arrangement for N’s access 2 ½ years ago back in 2014 could now be accepted as ‘normal’ in any sense without any regard or consideration to the present circumstances of the child N, such as her schooling, activities and other related factors, not only the fact that N was in kindergarten at that time and now she is in her primary studies.  This could have been considered subjectively by the Father himself as being “normal access”.  Secondly, normal access should be decided against a number of existing facts rather than relying upon historical events.  To say the Mother’s repeated child abuse allegations over the years not being substantiated or established by now and accordingly the access arrangement 2 ½ years ago then become a “normal access” is over simplistic and without basis. As said, children matters are always volatile and varying from time to time.

24.I also have difficulty to understand how this Court could make its own findings of fact on the Mother’s child abuse allegations simply by reference to the findings of other professional bodies such as the MDCC but without actually conducting a trial on the evidence.  The Father, with the benefit of legal advice, even saw fit not to give oral testimonies to persuade this Court that resumption of the 2 ½ year ago interim access would be able to fit into “normal access” so recommended by Mr. Cheng and other professionals is also difficult to understand. 

25.Moreover, Counsel Miss Athena Wong in her Submissions referred to the Father’s application for general access being overtaken by event of his earlier custody variation application, it is however noted that such custody variation application was withdrawn on 8 March 2016, which is 8 days prior to his filing of the present Summons for resumption of interim defined access on 16 March 2016 (although the Summons was dated 7 March 2016).  Why the Father does not pursue the general access arrangement but chose to pursue resumption of the interim defined access Order of 13/3/2014 remain to be explained.

26.As to the Mother’s application for variation of the Father’s access to supervised day access, this was somehow overtaken by event of the arrangement in March 2016 when unsupervised (my emphasis) Saturday access from 10 a.m. to 9 p.m. was agreed to by her although with certain Undertakings by the Father.  The Mother has not amended her Summons either to specifically state what access orders she is now seeking. 

27.Counsel Mr. Kevin Li in the Closing Submissions invited the Court to maintain the ‘status quo’ to avoid any unnecessary disruption to the present routine of N.  To the very least, no further disruption should be made until the final access arrangement to be determined. 

28.Counsel Miss Athena Wong commented that it is misconceived to term the present access arrangements as any kind of ‘status quo’ since it was only a temporary access due to abuse allegation which had now been found to be unsubstantiated.  To take the present access as ‘status quo’ would have the undesirable effect of unfairly depriving the Father (who was being falsely accused) of his access whilst unjustly rewarding the Mother (who wrongly accused the Father).  ‘Status Quo’, as submitted by Counsel Miss Athena Wong, should be the regular stable access arrangement prior to the abused allegation, namely, that of the 13/3/2014 Order.

29.In my view, whatever label or description given to the existing access arrangements is neither here nor there.  What does really matter is whether the existing access arrangements are in the best interests of N given the fact that the scope and extent of access at present is comparatively less than that provided for under the 13/3/2014 Order.  In particular, staying access with the Father has been suspended for some 15 odd months.  I believe this is also the main concern of the Father when he applied to resume the 13/3/2014 Order.  However, parties should always look forward to practical solutions rather than nagging upon historic events.

30.I am not convinced by Mr. Cheng’s recommendation that normal access in the terms of the 13/3/2014 Order to be in the best interests of N.  Reason being that Mr. Cheng himself acknowledged that no account had been taken of as to the child’s existing and increasing workload at primary schools which apparently does not exist at the time of the 13/3/2014 Order.  More importantly, Mr. Cheng agreed that it is in N’s best interests to have the long term access arrangements determined as soon as possible.  A further report from his successor is desirable and should be called for when deciding resumption of the 13/3/2014 Order.

31.The child N has been caught in the parental conflicts for a number of years by now and that loyalty issues had been seen by different professionals to have happened with N.  As said, no reason had been provided for by the Father for not resuming the general access after he decided to withdraw the custody variation application.  Further and prior to the custody variation application, he had once appealed against the Main Judgment which he had also lost.  Having said, I agree with Counsel Mr. Kevin Li that it is high time that the long term general access arrangement of N should be explored sooner rather than later. 

32.Whilst not accepting the Father’s request for resumption of the 13/3/2014 Order on interim defined access to be in the best interests of N, the Mother’s Summons for variation does not cater for N’s best interests either.  I decided that both Summonses should be dismissed.

33.Given the fact that general access under the terms of the Main Judgment had long been overdue for almost 4 years since October 2012, coupled with the fact that children matters are of prime concern to the Court, I decided that unless the Father applies to proceed with the general access arrangement provided for under the Main Judgment within 21 days from the date of this Decision, the terms of access of N would be one of reasonable access with the usual removal restrictions applicable to both parties.

34.In so deciding I have considered but minded not to arrange any further social welfare reports.  Reason being that the child has already been subjected to numerous interviews by different professionals including several social welfare officers in the past few years some of which, as I see it, could have been avoided had the parents been more sensible and reasonable with less animosity against each other.

Orders

35.I now make the following Orders :-

(a) The Applicant’s Summons dated 7 March 2016 be dismissed;

(b) The Respondent’s Summons dated 12 November 2015 be dismissed;

(c) No Order as to costs of both Summonses;

(d) Respondent’s own costs be taxed in accordance with Legal Aid Regulations;

(e) There be Certificate for Counsel;

(f) Unless the Applicant proceeds to apply for determination of general access arrangement under paragraph 167 (b) of the Judgment dated 5 October 2012 within 21 days from the date of this Decision, the Applicant do have reasonable access of the child;

(g) There be removal restrictions applicable to both parties.

Miss Athena Wong instructed by Messrs. Chan & Chan, Solicitors for the Applicant

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