E v. F

FCMC 6134 / 2017

[2018] HKFC 130

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6134 OF 2017

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J U D G M E N T
(Removal and Variation of Access)

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1.This is the hearing of 2 summonses taken out by the Respondent (Father). Both summonses are opposed by the Petitioner (Mother). The issue is what arrangements are in the best interest of the two children of the family.

The Father’s Applications

2.By a summons dated 6 November 2017 for variation of access to the children.

3.By a summons filed on 11 May 2018, the Father applied to remove the children to visit their paternal grandparents in the United Kingdom.

Background

4.The parties were married in Hong Kong on 31 August 2008. There are 2 children of the family, a girl (G), who is going to be 10 in September this year and a girl (H) aged 7. The Mother also has a daughter (I) from a previous marriage. I is now 21 years old and is attending University in Hong Kong.

5.Subsequently, the relationship between the parties deteriorated. There was no dispute that there was an argument in 2013. Matters came to a head in summer of 2016. There were frequent quarrels as the Father suspected that the Mother was having an affair. There was also no dispute that the Father began checking the Mother’s telephone.

6.In August 2016, the Mother was diagnosed to have Adjustment Disorder with depressive symptoms. She was referred to social workers and marriage counselling.

7.On 9 September 2016, the Mother says that there was a dispute in the former matrimonial home. The Mother alleged that the Father banged her head on the wall and threw her to the floor as a result of which she suffered injuries. Although the Mother produced a medical report stating that she was suffering from a head injury, the Father denied her allegations. To the contrary, he stated that they were very affectionate and intimate on that day.

8.On 13 September 2016, the parties had a consultation with a psychiatrist, Dr. Kwan. There appears to be no dispute that this consultation was not fruitful from the perspective of either of the parties.

9.Mother further stated that there was another dispute at the former matrimonial home on 16 or 17 September 2016 in the presence of the children. She alleged that the Father scolded her with foul language and threw a glass and a large ceramic basin at her and injured her ankle, as a result of which the children were terrified.

10.Both parties agree that there was a physical altercation between them in the early hours of in the latter part of 2016 and that this incident was very distressing for the 2 children. There were cross allegations of assault. The police was called and both parties were eventually arrested and charged with assault. The parties appeared in the Magistrate’s Court on the following day. The matter was adjourned. They were both granted bail on the condition that they had to live in separate addresses. The Mother stayed away from the former matrimonial home whilst the 2 children continued to live with the Father in the former matrimonial home. Subsequently, the prosecution withdrew the charges against the parties. 

11.The Mother has not returned to live in the former matrimonial home on a long term basis since September 2016. It is agreed that between November 2016 and April 2017, the Mother was given staying access to the children from Friday after school to Sunday morning at her sister’s home. She would return to the former matrimonial home to see the children during the week, sometimes staying overnight with the children (although the extent of the parties’ involvement with the care of the children is in dispute). She only stopped staying overnight at the former matrimonial home in February 2017.

12.At Christmas 2016, the Father took the children to the United Kingdom for a holiday. Over Chinese New Year and Easter in 2017, the parties went on holiday with the children together. They each have different explanations as to why they went on holiday together. However, there appears to be no dispute that this was upon the insistence of the Father. The Mother described the holidays as disasters, resulting in the children crying every day. This is denied by the Father, who thought that the holidays were uneventful. There was no dispute that at least, the atmosphere was tense during these holidays. There was yet another argument in the children’s presence on the last day of one of the holidays.

13.According to the both parties, there were many other confrontations between late 2016 and May 2017, either in the presence of the children or involved them. Their respective allegations are set out in their Affidavits and I do not propose to repeat them here. Suffice it to say that the Court is not in a position to make any findings of fact at this stage of the proceedings.

14.On 16 May 2017, the Mother petitioned for divorce as well as an ex part application for the children not to be removed from Hong Kong without the leave of Court. She informed the children of her decision on the same evening when they were having dinner together. The children wanted to stay with the Mother that night and the Father was informed. The Father agreed but asked that the children be returned to the former matrimonial home the next morning.

15.In the morning of 17 May 2017, the Mother was driving H to the school bus stop. There was yet another argument in H’s presence as to whether H should be driven to school by the Mother. Thereafter, the Mother was advised by her social worker to take the children to a child psychiatrist as soon as possible to deal with the stress arising out of the tension within the family. The Mother made an appointment with Dr. Chan, their family doctor and Dr. Kot, a psychiatrist. Dr. Chan discovered that the children had insect bites all over their body (which the Mother says was caused by the Father’s storage of carton boxes in the former matrimonial home). Dr. Chan also told the Mother that the children had lost weight over the past 2 months when they should have been gaining weight. Whilst they were waiting to see Dr. Kot, the Father arrived. There was another argument at the clinic and the police was called. The Father left the clinic when the police arrived. The Mother was then advised to not to return to her residence. She was arranged to stay at a temporary shelter with children.

16.On 18 May 2017, the Mother took out an ex parte summons on notice [A17-19] for an order that:

(1)   The Mother be granted interim custody, care and control of the children;

(2)   The Father, whether by himself, his servants or agents or otherwise be restrained from:

(a)   Assaulting, molesting, harassing, threatening or communicating with the Mother and the children in an abusive, destructive or otherwise inappropriate manner;

(b)   Entering or coming within 250 metres of:

(i)    The Mother’s residence;

(ii)   The Mother’s workplace;

(iii)   The children’s schools

(3)   Leave for the Mother to take the children to attend psychologist Dr. Kot for a psychological assessment and any necessary therapy;

(4)   Leave to serve the order on the children’s respective schools;

(5)   An authorization to arrest;

(6)   Leave to serve a copy of the order on the Commissioner of Police;

(7)   A penal notice to be attached to the order; and

(8)   Costs to be provided for

17.The matter came before this Court on 19 May 2017. Upon hearing Counsel for both parties and upon mutual undertaking by the parties that they will not:

(a)   Assault, molest, harass, threaten or communicate with each other and the children in an abusive, destructive or otherwise inappropriate manner;

(b)   Entering or coming within 250 metres of:-

(i)   Each other’s residence; and

(ii)   Each other’s respective offices;

it was ordered that the Mother be granted interim interim care and control of the children. The Father be granted supervised access to the children, such access shall be supervised and arranged by the social work officer of the Social Welfare Department. Directions were given for the filing of Affirmations, a social investigation report and single joint child psychologist report in preparation for argument of the Mother’s application for interim custody, care and control. The parties were also ordered to jointly appoint a child psychologist within 7 days for the purpose of providing treatment and necessary therapy to the children [A1/42-44]

18.The Court further directed that the children may not be removed from the jurisdiction by either party without the leave of the Court until they attain the age of 18 years respectively but provided that if either parent does give a general written undertaking to the Court to return the children or either of them to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the children or either of them from Hong Kong for any period specified in such written consent [A46-47].

19.This was followed by a dispute in respect of a psychological report prepared by Dr. Kot and filed by the Mother. That report was subsequently withdrawn [A70-71].

20.The Father then filed his Answer and Cross Petition on 6 June 2017. He admitted that the marriage had irretrievably broken down but alleged that the break down was caused by the Mother’s adultery. He also prayed for joint custody, sole care and control to him with reasonable access to the Mother, as well as ancillary relief for himself and the children [A73-80]. Subsequently, the main suit was resolved by consent. BY a consent summons dated 11 May 2018, the parties have now agreed to file a fresh Petition for Divorce on or after the expiration of one year from the Separation date. The existing Petition and the Answer and Cross Petition will be dismissed after the Decree Nisi of the fresh Petition is announced. The Court is still awaiting the filing of the new Petition and the withdrawal of the Father’s Answer and Cross Petition.

21.The 1^st Social Investigation Report was filed on 30 June 2017. An updated Social Investigation Report was filed on 3 July 2017. There was then a further dispute as to the Affirmation of Dr. Kot and the appointment of a child psychologist to provide treatment to the children.

22.On 3 July 2017 and by consent, parts of Dr. Kot’s Affirmation was withdrawn. Dr. Pandora Ng was appointed as the Single Joint Expert to provide treatment and necessary therapy to the children. Dr Lora Lee was directed to prepare a psychological assessment report on the children to be filed at least 7 days before the nest hearing. The Court further directed an expedited social investigation report to be filed at least 2 days before the next hearing. In addition, by consent, the Father was granted face-to-face access to be supervised by the social worker or the Parent-Child Contact Centre (the PCCC) under the Hong Kong Family Welfare Society, with the understanding that the arrangement of the supervised face-to-face access to not depend on the two children’s readiness and subject to the Investigating Officer’s professional judgment and availability of the social worker. The matter was then adjourned to 17 August 2017 for argument.

23.Dr. Lora Lee’s 1^st report was filed on 11 August 2017 [A242-331]. The 3^rd Social Investigation report was filed on 15 August 2017.

24.On 17 August, upon hearing Counsel for both parties and upon both parties acknowledging and agreeing that they have a joint parental responsibility towards the children and that the children have a right to maintain a continuing relationship with both parents after divorce and upon the parties each undertaking to the court and each other:

(i)   That they support the recommendations of the Single Joint Expert appointed by the Court, namely Dr. Lora Lee and will use their best efforts to co-operate in implementing her recommendations set out in her report dated 11 August 2017;

(ii)   That they will arrange an appointment with the parties and Dr. Lora Lee and the children to explain the proposed transitional arrangements set out in the order;

(iii)   That they will attend family therapy for parents and the children to reduce the conflict between the parties;

(iv)   That they will jointly appoint a Trained Professional referred by Dr. Pandora Ng to accompany the children during access with the Father until further Order and agree a reasonable access schedule in conjunction with the Trained Professional’s availability;

(v)   Neither party will make disparaging remarks about the other parent while in the presence of the children, nor shall a party allow others to do so;

(vi)   They will actively and positively encourage the children to spend time with the other parent; and

(vii)   They will facilitate indirect contact between the children and the other parent whenever the children are in his or her care. 

It was ordered that:

(1)   The Mother shall continue to have interim interim care and control of the children;

(2)   The Father shall have interim defined access to the Children on Mondays and Wednesdays between 6:30 and 8:30 pm, such access to be accompanied by the Mother’s domestic helper until a Trained Professional is appointed in accordance with the order;

(3)   The Father to have interim access to the children each Saturday at the PCCC until a Trained Professional is appointed in accordance with the order;

(4)   Both parties’ solicitors are to work out a schedule, subject to the advisory of the professionals;

25.The matter was further adjourned to 29 September 2017 for argument. The Court further directed that an updated report from Dr. Lora Lee was to be filed on or before 22 September 2017. This updated report was filed on 25 September 2017.

26.On 29 September 2017, upon hearing Counsel for both parties, this Court ordered that:

(1)   The Mother shall continue to have interim interim care and control of the children;

(2)   The Father shall have interim interim access to the children each Monday, Wednesday from 6:30 to 8:30 pm to be supervised by a Trained Professional jointly appointed by the parties;

(3)   The Father to have one additional day interim access to the children each alternate Friday or Saturday at the PCCC;

(4)   By consent, both parties to be assessed by a jointly appointed psychologist and psychiatrist who are to file their reports at least 3 days respectively before the next hearing. The case was then adjourned to a Children’s Dispute Resolution hearing on 8 January 2018.  

27.The single joint psychologist report from Dr. Jim Bierman was filed on 3 January 2018. The Father was unhappy with the order dated 29 September 2017. In 2017, the Father applied for leave to appeal against that order.

28.By a summons dated 6 November 2017 [A2/398-400], the Father applied for an order that:

(1)   Paragraph 2 of the order dated 29 September 2017 where, inter alia, the Father was granted interim interim supervised access to the children, with such access to be supervised by a Trained Professional jointly appointed by the parties to be varied to the effect that the Father do have supervised access to the children as follows:

(i)   Mid-week access at the former matrimonial home or such other outside venue, twice per week on Mondays and Wednesdays during school term, collecting the children from school until 8:30 pm;

(ii)   During school holidays, for two full days from 9 am to 9 pm during the week and one half day from 9 am to 3 pm;

(iii)   One full day access each Sunday from 9 am to 8:30 pm;

(iv)   The above access to be subject to the availability of a Supervisor and, save for the mid-week term access where the Father and the Supervisor will collect the children from school, the children will be collected by the Supervisor from the Mother’s home and then returned by the Supervisor to the Mother’s home;

(2)    Access to be supervised by an experienced Supervisor from In Safe Hands who need not be the same supervisor for each access and need not speak Cantonese;

(3)   Paragraph 3 of the Order to be deleted.

29.The parties appeared before this Court for a CDR on 8 January 2018. The Court was informed that the parties did not think that a settlement would be possible and that they refused to hear anything that the Court had to say at the CDR. The CDR was then declared a failure. Directions were given in respect of the Father’s summons for variation of access. In addition to the filing of evidence, the parties were ordered to be assessed by the single joint psychiatrist, Dr. Barry Connell.

30.The Father’s application to this Court for leave to appeal was heard and dismissed in 2017. He then applied to the Court of Appeal for leave to appeal. His application was dismissed in early 2018. The Court of Appeal emphasized that the order from the Family Court was interim in nature and that this Court was the appropriate forum to vary such an order. The Father interpreted the Court of Appeal’s reasons as encouragement for him to make an application for variation of interim care and control and access. Since that time, this Court has been bombarded with applications.

31.In January 2018, the Mother’s solicitors contacted the Father’s solicitors, requesting for the father’s consent to allow the Mother to take the children to Japan for a skiing holiday over the Easter school break. Whilst the Father stated that he had no objection “to the (Mother) taking the Children to Japan for a holiday”, he refused to give his consent. He basically wanted tit for tat before he would consent to the Mother’s request to take the children out of the jurisdiction. He suggested that the Mother could go to Japan with the children over the Chinese New Year holidays if she consented to him taking the children to England for the Easter holidays [A3/518].

32.The Mother therefore took out a summons dated 15 January 2018 for leave to take the children to Japan for A from 28 March to 6 April 2018 [A3/511-512]. In response, on 23 January 2018, the Father took out a summons for an order that:

(1)   Paragraph 2 of the Order dated 29 September 2017 where, inter alia, the Father was granted interim interim supervised access to the children, with such access to be supervised by a Trained Professional jointly appointed by the parties, be further defined to the effect that the Mother or her Domestic Helper shall deliver the children to the taxi rank located within the Father’s residential complex, where they shall be met by the Trained Professional;

(2)   The Father do have leave to take the children out of Hong Kong to England to visit their paternal grandparents, to be accompanied by a Trained Professional, at the Father’s own cost for the period 14-23 February or 29 March to 6 April 2018 [A3/520-521].

33.On 26 January 2018, the parties appeared before the Court. Despite having no objections to the Mother’s proposed holiday in Japan, the Father resisted the Mother’s application. Directions were hence given for the filing of evidence in preparation for argument. The earliest hearing date on which counsel for both parties were available was in May 2018. As a result, neither party was able to take the children out of Hong Kong for a holiday over the Chinese New Year or Easter. In the light of the Father’s difficulties with access, the court ordered an updated report from Dr. Lora Lee and an updated Social Investigation report.

34.Before the above mentioned summons could be heard, the Father took out another summons dated 8 February 2018 [A3/527-530], for an order that:

(1)   Paragraph 2 of the Order dated 29 September 2017 where inter alia, the Father was granted interim interim supervised access to the children, with such access to be supervised by a Trained Professional jointly appointed by the parties, be further defined to the effect that the Mother so, or instruct her domestic helper to, deliver the children to the taxi rank located within the Father’s residential complex, where they shall be met by the Trained Professional;

(2)   The Non-Molestation Undertaking by the parties recorded in the Order of 19 May 2017 be amended to permit the Mother to enter or come within 250 metres of the Father’s residence solely for the purpose of delivering and collecting the children for access with the Father as per paragraph 1 above.

35.On 14 February 2018, it was ordered by consent that:

(1)   Paragraph 2 of the Order dated 29 September 2017 be further defined to the effect that the Mother or her agent to deliver the children to the entrance of the Broadway Cinema at Cyberport from 14 February 2018 onwards for supervised access, where they shall be met by a Trained Professional;

(2)   In lieu of the supervised access on Monday 19 February 2018, the Father to have make up access to the children from 2:00 pm to 5:00 pm on Thursday 22 February 2018 and the Mother to deliver the children to the entrance of the Broadway Cinema at Cyberport at 2:00 pm where they will be met by a Trained Professional.

36.On 26 February 2018, the Father took out an application for maintenance pending suit. On 26 January 2018, directions were given for the filing of evidence in respect of the Mother’s summons dated 15 January 2018 and the Father’s summons dated 23 January 2018. Updated reports from Dr. Lora Lee and the Social Investigation Officer was also ordered. The summons were fixed for argument on 20 April 2018.

37.On 9 March 2018, the Father filed another summons for removal of the 2 children to the United Kingdom to see their paternal grandparents between 16 and 31 March 2018 and that the Mother to deliver the children to the Parent and Children Contact Centre at 5:00 pm on 16 March 2018 with their travel cases, where they will be met by the Father [A3/577-578]. The Father stated that the paternal Grandfather was in hospital with failing health and he wanted to the children to see their grandfather. That application was opposed by the Mother. However, she agreed to take the children to the United Kingdom herself and to visit the grandfather in hospital.

38.On 22 March 2018, the Father took out yet another summons [A3/598-600] for the following orders (to supersede his summons dated 6 November 2017):

(1)   That the arrangements for the children be varied such that:

A.   (a)   The Father’s access need no longer be supervised;

(b)   The Mother and the Father shall be granted shared interim care and control of the children with the following care arrangements being in place:

(i)   The children reside with the Father except for alternate weekends;

(ii)   On alternate weekends, the Mother do collect the children from school on Friday afternoons and drop the children off at the Father’s home on Sunday at 7 pm;

(iii)   One day per week to be mutually agreed, the Mother will collect the children after school and return them to the Father’s home at 7 pm;

In the alternative:-

B.   The Father’s access no longer be supervised;

(b)   The Mother and the Father shall be granted shared interim care and control of the children with the following care arrangements being in place:-

(c)   the children reside with the Mother with the weekend care arrangements to be as follows;

Week 1

The Father do collect both the children from school on Friday and they spend the weekend with him and he delivers them to the Mother’s home on Sunday evening at 7:00 pm;

Week 2

The children do remain in the care of the Mother

Week 3

The Father do collect G from school on Friday and return her to the Mother’s home at 7:00 pm on Sunday, with H remaining in the care of the Mother; and

Week 4

(i)   The Father do collect H from school on Friday and return her to the Mother’s home at 7:00 pm on Sunday, with G remaining in the care of the Mother;

(ii)   On Monday and Wednesday each week the Father do collect the children after school and return them to the Father’s home at 7:00 pm

(2)   Public holidays and school holidays to be shared equally between the parties;

(3)   The parties to appoint an experienced Parental Co-ordinator; and

(4)   Costs reserved

39.On 29 March 2018, leave was granted to the Father to withdraw his application for leave to remove the children to the United Kingdom.

40.On 13 April 2018, the Mother took out a summons for interim maintenance of the children. By a summons dated 3 May 2018, the Mother applied for leave to remove the children for holidays from 29 June to 26 August 2018 and that the Father be ordered to deliver the children’s passports to the other’s solicitors 7 days prior to any holiday ordered.

41.On 16 April 2018, upon hearing Counsel for the Mother and the Father in person, the court ordered that the Father’s 2 removal summonses and the Mother’s removal summons to be heard together on 11 May 2018.

42.On 24 April 2018, the Father took out a summons to remove the children to visit the paternal grandfather in the United Kingdom between 14 July and 5 August 2018.

43.On 11 May 2018, the Father filed yet another summons for, inter alia, the following orders:

(1)   That the Father do have leave to remove the children to the United Kingdom to visit their grandparents from 18 to 26 May;

(2)   That the Mother do deliver the children to the fountain at his residence with their travel cases at 5 pm on Friday 18 May 2018, where they will be met by the Father;

(3)   The Father do have leave to remove the children to England to visit their paternal grandparents from 14 July to 5 August 2018; and

(4)    The Mother to deliver the children to the fountain at his residence with their travel cases at 5 pm on 14 July 2018, where they will be met by the Father.

44.On 20 April 2018, the Court gave directions for the filing of evidence in preparation for the custody trial.

45.On 11 May 2018, it was ordered by consent that leave be granted to the Mother to remove the children for a holiday to Japan or Taiwan for 2 weeks. The Mother was ordered to provide the flight itinerary to the Father at least 7 days before departure. The Father was ordered to provide the passports of the children to the Mother at least 6 days before departure.

46.This Court has urged the parties a number of times to concentrate on the preparation of the custody trial instead of interim interim arrangements. It was made clear to them that there are numerous disputes on facts which can only be determined at trial. This advice was not heeded.

Issues

47.The children have become increasingly resistant to access with the Father. The relationship has deteriorated to the extent that the Father has not been able to see the children in the last few months. There are cross allegations of psychiatric or psychological illnesses. Further, the Father says that this was due to alienation by the Mother. He alleges that the Mother is simply unable and unwilling to encourage the children to have access with him and that this was in breach of the children’s rights to have a family and is damaging to the children. On the other hand, the Mother says that there have been problems with the relationship between the Father and the children for quite a long time. The Father’s incessant photo and video taking, obsession with the children’s homework, the unhygienic conditions in the Father’s home, the Father’s relationship with his domestic helper and the Father’s use of violence and verbal abuse against her, the breach of his promise to return the children’s belongings to them, the refusal to allow the children to go on a skiing holiday all contributed to the problems. She stated that she would like the children to have a relationship with the Father but this would not be possible unless and until has insight into the problems and takes steps to repair the relationship, she cannot force the children to see him.

48.The issue is what interim arrangements are in the best interests of the children.

Applicable Legal principles

49.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;

50.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.”

51.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.”

52.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.

The Evidence

53.The evidence filed by the parties is voluminous and they involve an enormous amount of dispute of facts. It is simply impossible for the Court to repeat them here. Further, as explained to the parties on various occasions, at this stage of the proceedings, the Court is not in a position to come to any final conclusions on factual disputes. What is not in dispute is that the children are now extremely resistant to having access with the Father. In the past, access at the PCCC was relatively more successful. However, the children are now refusing to enter the playroom even when they are delivered to the PCCC.

54.There was no dispute that the children continued to live with the Father after the Mother moved out of the former matrimonial home. The Father says that he had a perfectly normal and loving relationship with the children before the commencement of these proceedings. He asserts that the sharp deterioration of the children’s attitude towards him was caused by the Mother’s alienation. On the other hand, the Mother asserts that the Father was obsessive and controlling and that was the reason for the children’s resentment.

55.The Father has produced a number of Affirmations from access supervisors to say that the Mother has not given any positive encouragement to the children to have access with the Father. In short, she was described as rude, unhelpful and sometimes obstructive. However, the Father’s allegations are not supported by the expert reports. There are now a total of 10 reports.

56.The children have not been very receptive to the Father from the outset of these proceedings. Pursuant to the order dated 19 May 2017 and prior to the filing of the 1^st Social Investigation Report, the Father had 5 access sessions under the supervision of the Social Investigation Officer. The Social Investigation Officer also attended 2 school activities at the Father’s request. Those access sessions (both face time and face to face access) were described in some detail in the report [expert bundle 10-14].

57.In the report, the Mother described the Father as obsessive and controlling over a whole range of matters including home care. These include keeping useless items or refusing to allow disposal of then unless and until they have been checked over by him and photos have been taken. There was no dispute that the Father kept many carton boxes in the former matrimonial home. The children had red dots all over their body and their doctor subsequently confirmed that those were insect bites. The cartons have now been removed.

58.In respect of child care, the other stated that the Father only allowed the children to do homework in his presence. He would ask the children to redo the past exercises in a new workbook when the previous notebook was torn by the Father erasing work that was done in his absence. The Father would wake the children up for bed time stories even when they were already asleep. He went into the bathroom to take photographs of the children when they were having a bath. He ignored the children’s preference for food and activities during their trip to Japan in April 2017.

59.Those allegations are denied by the Father. However, when the children were interviewed individually, G’s account of the Father’s behavior and their interactions with him were largely consistent with the Mother’s allegations [Expert bundle/17]. G explained to the Social Investigation Officer that those were the reasons why she felt annoyed and fearful towards the Father. She also told the Social Investigation Officer that the Father had hit the Mother’s car many times and she had witnessed him hitting the Mother on 5 occasions. She asked to have access together with H after the first supervised access. After the 4^th supervised access, she told the Social Investigation Officer that she did not want to see the Father again [Expert bundle/18].

60.H also told the Social Investigation Officer that the Father had hit the Mother. Her attitude to access has always been negative [Expert bundle/18].

61.The complaint about the Father’s behavior towards homework was also consistent with the information provided to the Social Investigation Officer by the school. According to G’s class teachers, the Father insisted that the school provided him with each and every piece of document, photograph, copies of work produced and records of emails relating to G’s learning throughout her time at this school. The principal and teachers added that the Father was very particular about the children’s schooling. He once asked for new homework books from the school as the old one was wet in Kindergarten. He also insisted that the school teacher should enter all the old dates in the new homework book in the exact way as those in the old book. On one occasion, he asked for a new temperature book from the school for G, as the old one had to be replaced when she was in Kindergarten 3. He also insisted that the teachers sign each of the entries in the new book in the exact way that they did in the old one. The teachers also noticed that the Father was very keen to take photographs of every piece of written material relating to the children’s learning, for example the lesson plan displayed outside the classroom. After G graduated from kindergarten, the Father asked for all the photos of G.

62.After taking into account the information obtained from various parties, the Social Investigation Officer came to a conclusion that the Father’s alleged obsessive and controlling behavior appeared to be worth the concern. The Mother’s account of such behavior was consistent with his investigation with the children, the family members and the school. As for the Father’s allegation of alienation, the Social Investigation Officer stated:

“Despite (the Father’s) view of alienation on the two children by (the Mother), the Investigating Officer takes the view that (the Mother) has been putting much effort to facilitate the access or else the total number of supervised access to date would not have been possible. Her suggestion of unsupervised face-time access for (the Father) is appreciated. On the other hand, the two children showed fluctuating response towards (the Father) during supervised access and school activities. Subject to expert assessment by the child psychologist…, the Investigating Officer considers that there may be an issue of loyalty to parents or issue of rejection due to witness of violence and/or experience of undesirable treatment in the context of report of spousal violence and undesirable child treatment in this case. Earliest psychological intervention on the case, for therapy and assessment report purpose, is strongly recommended…in view of the two children’s resistance to face-to-face access, supervision by social worker,…is recommended, with the understanding that the exact arrangement of supervised face-to-face access must depend on the two children’s readiness and the supervising social worker’s professional judgment and availability”.

63.Prior to the 2^nd Social Investigation Report, there were 5 supervised face-to-face access sessions. These sessions were also described in some detail in the report [Expert bundle/28-32]. In summary, the access were described as follows:

“The Investigating Officer considered appropriate to keep weekly supervised access in view of the two children’s resistance at the present stage. It was acceptable for (the Mother), her god-mother or the maternal grandmother to stay in office, particularly if the two children became emotional and refused or showed much resistance to go for access without the former’s staying behind. As observed by the Investigating Officer, (the Father) effectively engaged the two children during eth supervised access by presenting gifts, giving their belongings that had been kept at his home back to them and showing and talking about things of their interest…On the other hand, the two children had short, intermittent eye-contacts with (the Father), responded briefly to his questions and smiled occasionally. They seemed to time themselves to leave after getting things from him and left right away without initiating to say goodbye (except on 12.8.2017 when S initiated to say goodbye).

64.A showed the Investigating Officer her emotion diary. She had a sunny mood when she was with the Mother. Both children had a “thunderstorm” mood when they were calling or seeing the Father and they indicated that they did not want to see him [Expert bundle/36-37].

65.The Investigating Officer repeated in this report that without either the Mother’s support or the Father’s effective engagement of the two children, it would not have been possible to carry out the supervised face-to-face access, despite their short duration. The Investigating Officer was of the view that the children’s resistance may well be caused by a loyalty conflict and that the Mother has demonstrated her capability to give assurance to the two children to soften their resistance towards access [Expert bundle/39].

66.The 3^rd Social Investigation Report was prepared specifically as a result of the Father’s application for variation of access. According to the Mother. H started to vomit daily at school in January 2018. In March 2018, this was lessened to 2 to 3 times a week before school and usually on the day of supervised access. G also showed rapid heart beating and shivering of hands and legs since January 2018. The medical practitioner who examined H suggested referring her to psychological assessment. Psychological or psychiatric assessment was also recommended by Mr. Lam, the Student Guidance Officer of H’s school. However, the Father refused to allow H to meet with Mr. Lam or other social workers. He also refused any referral of psychological or psychiatric assessment for either of the children. He stated that it would portray him as the cause of the 2 children’s stress. If they were suffering from any form of stress or anxiety, it was caused by the Mother who has falsely empowered them with adult decisions and failing to facilitate access and reassure them [Expert bundle/44-45].

67.By this stage, the Father was having off-site access supervised by trained supervisors. Those access sessions were not very successful. The Mother and the Hong Kong Family Welfare Society offered further access at the PCCC but her offer was rejected by the Father. The PCCC exceptionally offered to help out for a session of off-site access by supporting the access supervisors and demonstrating how to engage the 2 children at access. The PCCC had a meeting with the children to prepare them for the session. However, H threw a great temper when she discovered that the access supervisor would be present. She finally agreed to go with the assistance of the Mother. Two social workers from the PCCC escorted the children and the Mother to the taxi-stand. The Mother soothed H’s fear. Access took place at a McDonalds restaurant and lasted for 2 hours and 13 minutes with occasional mutual interactions among the Father and the children.

68.The Investigating Officer found that the Mother was co-operative and respected the handling of the children’s resistance and planning of supervised access by the PCCC. She generally encouraged them to attend the sessions provided that the children would not be distressed. She would let them stay longer than scheduled when the children did not ask to leave. However, she felt guilty about the children’s emotional disturbance and was in a dilemma of forcing them to see the Father. Otherwise she would be blamed by the Father and the access supervisors.  

69.On 12 January 2018, the PCCC had a review meeting with the children. G told the social worker that her relationship with the Father had deteriorated. S felt that it was better to have supervised access in the PCCC as they could do craftwork and play with toys. H also worried that if they were to have unsupervised access, she would be forced by the Father to something that they did not like [Expert bundle/49].

70.A confirmed to the Investigating Officer that she had rapid heartbeat and shivering of hands and legs before, during and after seeing the Father. She stated that the former domestic helper was annoying. The first 2 access supervisors recommended by Dr. Pandora Ng were good as they did not force the children, let them pack things at the Father’s home and allowed them to leave. The other access supervisors did not listen to them, did not allow them to leave or pack things from the Father’s home. She also preferred access at the PCCC although she was mostly unhappy to see the Father. Both children explained that the Mother had told them to attend access. She did not want to live with the Father as he was annoying, often scolded them, took photos of them and did not agree to them going on holiday in Japan during Easter. When asked what could motivate them to accept access, both children said “No”. When the Father said that he would never give up on the children, G perceived that it meant that the Father would continue to annoy them for the rest of his life. She stated that the Father would not force them to see him if he really loved them. H told the Investigating Officer that the former domestic helper was boring. The two supervisors recommended by Dr. Pandora Ng were very good as they were Chinese and would listen to the children. The other supervisors were annoying. She also asserted that she did not want to see the Father because he was also annoying [Expert bundle/51-52].

71.The PCCC’s view is that the children’s readiness and psychological preparation should be given serious consideration. There should be a supervisor that is accepted by both parties, who is able to establish a trustful relationship with the children as well as the Mother. The supervisor should also have professional training on counselling. Provided that the parties are able to agree on a supervisor, the PCCC was prepared to assist on off-site supervised access on a short term basis by facilitating the access supervisor to engage with the children. Parenting co-ordination service was also recommended.

72.Mr. Tso, the social worker of Caritas Aberdeen IFSC was also interviewed. He was of the opinion that the Mother has been taking good care of the children. The Mother has been trying her best to facilitate access.

73.The Investigating Officer observed an on-site supervised access at the PCCC on 23 March 2018. G laid on top of the Mother’s lap whilst H repeatedly said that she did not want to see the Father. The 2 social workers at the PCCC encouraged the children to go into the visitation room but they refused and they did not respond to any of the Father’s efforts to engage them. Subsequently, H started to shout that she wanted to leave and called the Mother. She stood near the main door of the PCCC. The Investigating Officer also planned to observe 2 off-site access sessions. However, those sessions were not carried out as G was sick and H refused to attend.

74.In conclusion, the Investigating Officer recommended that the Mother continues to have care and control of the children. He noted that there are polar professional views of the Mother’s attitude towards access. The views of Mr. Tso and the PCCC are positive whilst the views of the access supervisors were negative. The Investigating Officer agreed with Mr. Tso at the PCCC. He explained that resistance to access is a complicated issue that cannot be attributed simply to a single cause or to one party. A parent’s failure to push the child to attend access, or respecting the child’s wishes is not tantamount to allowing the child to make adult decisions. He was of the view that loyalty conflict cannot be totally eliminated. Resistance to access could be lessened by efforts of both parents or effective input of the facilitator, namely the PCCC. It could also be aggravated by other causes such as unpleasant access experience or dispute about the children’s holiday plans.

75.The Investigating Officer recommended that the Father should reconsider his position in refusing to allow the children to be assessed by a psychologist and psychiatrist.

76.The most recent difficulties in respect of access are described in the 4^th Social Investigation Report [Expert bundle/59-63]. The Investigating Officer tried to observe an off-site supervised access. The Mother tried to take the children out of their home to attend access. The children immediately started yelling that they did not want to see the Father. They also cried and screamed. H went back to her bedroom whilst G sat on the sofa to cry. The Mother soothed the children and then started to motivate them to see the Father. She even told them to go home with the Father to decorate the Christmas tree. However, both children were adamant in their refusal. Later on, the children did not even respond to the Mother anymore. The Investigating Officer observed that the Mother had shown much effort to motivate the children to attend access. 

77.Collateral information was sought from the children’s Head of school. She explained that whilst both parents loved the children, there were incidents that the children have become emotional and expressed that they did not want to leave with the Father and the access supervisor. Both children would express much concern when they were aware of upcoming occasions that the Father would turn up at school. She was of the view that the Father had to understand why the children did not want to see him and show unconditional love to them so as to rebuild the father-daughter relationship. Whilst she understood the Father’s frustrations, it was essential for the school to be maintained as a physically and psychologically safe place for all the children, and in particular G and H.

78.Dr. Lora Lee, the child psychological expert has prepared 3 report. In her 1^st report, Dr. Lee concluded that there was no doubt that the children are very close to the Mother and attuned to her emotions. She explained to the Mother that it was common that children would say things to please a parent, especially if they had witnessed domestic violence and decided to take sides to protect the parent that they feel the need to protect and care for. The Mother told Dr, Lee that she could not force the children to attend access.

79.At her interview with Dr. Lee, G brought a list of 44 things that she did not like about the Father. An example was that the Father had lied to her about her smart phone. A seemed to worry about having a joint session with the Father but she was not scared. In their joint session, G told Dr. Lee that the Father called her a monster. When Dr. Lee asked about a video taken on the Father’s birthday, they said that the Father scolded them because they did not look happy and they had to refilm the video. They also mentioned an incident at a swimming pool in Japan. Both children told Dr, Lee that they did not want to go to the Father’s home as they feared that the Father would not let them go.

80.At the joint meeting with the Father, G was grumpy and said that she did not want to see the Father. They hid their heads in the sofa when the Father entered the room. The Father tried very hard to engage the children, he brought presents, the children’s belongings and read to them. However, the children still refused to say goodbye or hug him at the end of the meeting. Dr. Lee proceeded to explain to the Father, the importance of returning the children’s belongings. However, the Father refused and said that he was not going to bribe the children to see him.

81.Whilst Dr. Lee found some of the features of parental alienation, she stated that it is clear that the children’s resistance and gross contempt was not caused by abuse but possibly a combination of factors. She was of the view that loyalty conflict seemed to play a bigger role.

82.In her 2^nd report, Dr. Lee found that the Mother was well intentioned in her attempts to encourage the children to see the Father and that she was able to restrain herself from making disparaging remarks about the Father. However, all of the Mother’s efforts were perceived in a negative light. The children were clearly very resentful of Dr. Lee during the preparation of this report. One of the supervisors recommended by Dr. Pandora Ng was interviewed and she described the 3 access sessions that she supervised as disasters. This supervisor resigned after the 3^rd session after being confronted by the Father. Dr. Lee concluded that the children’s resistance is the result of the parents’ difficulties. The Father was advised to stop taking pictures of the children. Dr. Lee went on to recommend a reversal of the care and control arrangement or moving the children to a boarding school. The Father is relying on this report in support of his application.

83.In her latest report, Dr. Lee concludes that there are now a multitude of issues which contributed to the deteriorating situation. Regardless of the factors leading to the estrangement between the Father and the children, it is evident that reunification should be the goal. She pointed out that loyalty conflict and rejection of one of the parents is not an uncommon phenomenon. However, if the previous relationship prior to the separation had not been strong, or that parent is not able to attune to the needs of the child, very often children experience cognitive dissonance, which they generally resolve by aligning with one parent.

84.Dr. Lee felt that the Mother has indoctrinated the children to fear and dislike the Father, but not purposefully. The Mother seems to be overly worried about the current situation and has difficulty in regulating her strong and sometimes erratic emotions. Combined with the Father’s inability to attune to the children’s emotions and respond appropriately, it was clear to Dr. Lee that the children are craving for adults that they can count on to feel safe. She further explained that there is a lack of supportive adults in the children’s lives. They feel that they can trust Dr. Pandora Ng and maybe their teachers. The children need help to identify positive coping strategies that can be used in the face of the parents’ failure to respect their rights (not the parents’ rights) and acknowledge their views, instead of imposing their views upon the children.

85.Dr. Lee found that the Mother means well and she noted positive change in the Mother. It is Dr. Lee’s opinion that the Father has unwittingly reinforced many negative comments and beliefs that the children have about him, by being over controlling, obsessive with picture taking, hoarding, not allowing them the freedom to travel, not allowing them to be more independent in their thinking and refusal to change.

86.Dr. Lee understood that the Father may be feeling the stress of losing his children but his erratic and blaming behaviors caused serious damage to his relationship with the children. The most worrying aspect is that the Father is still unable to see how he had contributed to the current situation but insisted that if the Mother, the school of the PCCC would simply tell the children to see him, and not allow them to choose, the situation would not have happened.

87.According to Dr. Lee’s report, the questionnaire result indicated that A is in distress and finding it hard to get support and trust from others. The children’s teachers and Dr. Ng have made comments about the children’s physical and emotional condition. At school, H has reportedly become more impatient, grumpier with friends after Christmas and has been having stomach ache since January 2018. She seemed embarrassed when she was with the Father, leaned away from him during the whole meeting and seemed very wary about talking about him. During the three way conference, G cried when the Father sat next to her, felt embarrassed when the Father wanted to connect with her and would not talk to him directly without prompting. She is distressed when the Father is around and she even hid behind her friend once when the Father volunteered in the art room at school.  

88.Dr. Ng has noted a pattern of increased anger and anxiety shown by the children after each supervised access. She felt that H’s physical symptoms, such as vomiting and stress is more psychosomatic and G had a flu a couple of times as her immune system is weakened.

89.However, Dr. Lee found that the children are stronger than before and are better able to express their needs and rights and they are respectful when they feel that they are respected. She thought that the Father had contributed to the dynamics through the use of primitive defences. She thinks that both parents require intensive therapy. Both parents need to gain insight into their role in contributing to the current situation and not in blaming the other and or expecting the other parent to change. Emotional safety and prevention of additional harm toward the children should be the priority. Dr. Lee believed that the children should remain under the care of the Mother until the relationship between the children and the Father has improved and the Father has been able to demonstrate and show greater parenting capacity and insight.

90.The parties agreed to be assessed by Dr. Bierman, a psychologist. According to Dr. Bierman’s report, the Father produced a MMPI profile that was invalid, suggesting that he may have answered questions in a “yea-saying manner”. This type of invalidation is sometimes seen in clients with severe psychopathology. Dr. Bierman explained Dr. Lee’s reference to the Mother’s lack of “parental capacity in facilitating access”. He stated that it was clear that Dr. Lee was referring to the Mother’s difficulty in overcoming the children’s resistance to access, not to limited parental capacity per se.

91.Dr. Bierman also referred to collateral information from the school. According to the Head of school, G was frightened by the Father, that she was reaching out for help, and that it was timely to refer her to a counsellor. She included 4 referrals. She reported that the Mother always appeared to be focused on the children’s best interest, has a positive relationship with the children and deals with the school in a positive parenting way; she is not demanding, not inappropriately rude or overly concerned with issues of the children. She is a good parent to deal with perfectly rational, and the children have a positive relationship with her. On the other hand, even before the situation with the parents’ separation, the teacher sometimes found the Father to be quite demanding. He was sometimes over the top, particularly with G since H has only been at school in the past year. He would always make unreasonable requests for the teachers to make copies of their work and photos of their drawings. He wanted to collect every moment of their life, and the head of school has had to follow up for the teachers on a number of excessive requests. The school found the Father to be a little bit manipulative. There was little sign of stress with G until the end of last year. The teachers gave the children an opportunity to tell the teacher what they want them to know. The children often share very personal information. On this occasion, G wrote something to the effect that “I want the teachers to know about not liking my dad and being afraid of him”.

92.Dr. Pandora Ng told Dr. Bierman that the children have grown in confidence and their ability to express and regulate their emotions. However, they are still very disturbed and distressed when certain incidents come up in their lives. The children are emotionally fragile. She found the Father to be very clear but rigid. He interprets any expression of independence as the Mother’s alienation and will not let go of his way of seeing things.

93.Dr. Bierman concluded that the Father is intolerant of the opinions or wishes of others, including the children who may have modelled this characteristic for themselves. He has interpreted numerous complaints from the children, school and reporting professionals as examples of the Mother’s alienation of affection, without taking any responsibility to himself. His defensiveness and externalization of blame was apparent in their final interview. He seems to expect others to comply with his wishes, and is intent on enforcing his will over the expressed wishes of others. This point was driven home in his final statement that “The solution is very simple; the mother is told to back off and she’s told to let the children have a good time with their father and get on with it. That’s the solution”.

94.Dr. Bierman further stated that the Father appears to be rigid in following his own rules and adhering to minor details. He shows a sense of righteousness about the way things “should be done”. He seems unyielding and dismissive of the negotiations the Mother had with the children about where to go and when, and sees her as indulgent. His thoughts and behaviours do appear obsessive and compulsive; a characterization he denies. Those behaviours are ego syntonic. That is, it makes sense to him to think and behave as he does; it does not cause him distress. In the Father’s opinion, his behaviours are proper, warranted, and morally correct. When confronted with negative feedback, he externalizes blame onto the Mother, claiming again her alienation of the children; that they have been taught that they are not supposed to love him. He is conspicuously non-reflective regarding his own emotions.

95.The Father’s approach to the evaluation by Dr. Bierman appeared to be open and honest. However, psychological testing, which was invalid due to the Father’s way of approaching the instrument, indicated at minimum defensiveness and at most a wish to conceal. The doctor found that it was implausible that the Father could have misunderstood the questions or failed to glean their intentions.  Dr. Bierman found that the Father perseverates on details up to a point where a problem has been identified and must then be negotiated or resolved. At that point, he seems to jump to a conclusion, relying on his own Counsel to determine the truth of the matter and the best way forward. This denial of other’s rights or investments in negotiated outcomes, “magical thinking” that his belief about a thing can change the nature of that thing, inability to take the perspective of the other, and apparent unawareness of his lapse in attention is most concerning.

96.According to Dr. Bierman, the Father’s perception of events around him seems distorted, ego syntonic and resistant to reality-check by others. This constellation of symptoms indicates issues related to his character or personality, are not related to more superficial foci of clinical concern, and may rise to the level of diagnosable personality disorder. Clinical presentations for a disorder of this nature are heterogeneous. They usually include excessive neatness, which is not the case here, and miserliness of finances, time and affection, which is present in hoarding behavior, to a lesser extent in financial matters (alleged lateness of payment), and alleged in terms of his affection. At minimum, one can conclude that personality traits are present in the Father that affect his ability to parent in a flexible, tolerant, and child-centered way. This has impacted the children and the Father must bear some responsibility for their resistance to him. Dr. Bierman recommended that the Father should undergo psychotherapy and psychoeducation.  

97.All the experts are at idem that the Children have been affected by the conflicts between the parents. The children are very fragile and are distressed by access with the Father. Raising children requires flexibility and accommodation on the part of the parents. This is even more important in high conflict cases. The Father’s behavior is described as rigid, obsessive, compulsive and ego syntonic. He is unable to take the perspective of others. In short, the Father’s proposed variation is not supported by any of the updated expert reports.

98.The Court understands that the Father is traumatized by the children’s refusal to see him and that he fears that he would lose the children. However, the Father appears to think that the children could be forced to see him. This position is consistent throughout these proceedings, and in particular in both his applications for variation of custody/access and temporary removal. He says that the children will “kick and scream” for a few days but they will get used to the idea of spending time with him and will be fine. With respect, the Father’s proposal will have exactly the opposite result. Forcing the children to do something which distresses them will only serve to further damage their relationship with the Father.

99.At this stage of the proceedings, before the Court is able to hear viva voce evidence and make any findings and in the light of the expert reports, it is difficult to see how any of the Father’s applications can be in the best interests of the children.

100.By reason of all the above matters, the Father’s two applications are dismissed. There will be an order that there be no order as to costs, such order shall be in the form of an order nisi.  

Petitioner : Represented by Mr. G. Surman instructed by M/S Au & Vrijmoed

Respondent : Acting in Person