S, V v. M, S

FCMC 2868/2018

[2020] HKFC 197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2868 OF 2018

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Dates of Hearing: 2 – 6 December 2019 and 14 – 15 April 2020

Date of closing submission from the Official Solicitor: 21 May 2020

Date of closing submissions from the parties: 4 June 2020

Date of closing replies: 24 June 2020

Dates of subsequent letters: 28 August, 2, 9 and 10 September 2020

Date of Judgment: 18 September 2020

__________________________

JUDGMENT

(Sole care and control to one parent and access to the other, or joint care and control/shared care)

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Introduction

1.The court is concerned with the future arrangements for the two children of the family, two girls now aged 15 and 12 years old. The elder child, E, was born on the XX December 2004 and she is now attending a boarding school in the United Kingdom. Thus, the issues concerning E are somewhat limited. It is of note that the parties already have joint custody of both children by virtue of a court order dated the 25 June 2018 and the school holidays are now effectively shared. Consequently, the focus of this judgment is on the arrangements for the younger child, R. R was born on the XX August 2008 and she has just turned 12 years of age. She currently attends an international school in Hong Kong.

2.One of the difficulties in this case has been the “suggestion”, until very recently, that the father has behaved in an inappropriate way with respect to the girls. The “suggestion” initially seemed to be that there was a sexual aspect to the father’s relationship with them, something, which in turn, was vigorously rejected by the father. Consequently, the court has had to tread somewhat cautiously and on the 12 October 2018 a psychologist’s report was called for. Dr B and her team were subsequently appointed as the courts Single Joint Experts. In addition, on the 19 September 2019, the Official Solicitor was appointed to separately represent the interests of both girls.

3.It is against this background that one has to view the history of the litigation. Access has, on occasion been extremely difficult, with the mother insisting inter alia that the children have separate bedrooms when the father takes them away on trips, that any interconnecting door be made of solid wood or that there be no interconnecting door at all, that R be allowed to lock her bedroom door when staying at his home, that he not enter the bathroom when the girls are in there etc etc. It would be fair to state that the mother has adopted an extreme “gate keeping approach.” She is currently reluctant to allow R to stay overnight with the father during term time, unless E is also present, although I am told that even when E has been present in Hong Kong during the COVID pandemic, and staying with the father, the mother has not always allowed R to join her sister overnight. There have also been allegations made with respect to drinking, with both parties initially undertaking not to drink alcohol when the girls were in their care. This undertaking was subsequently discharged.  

4.When faced with an extreme situation like this, one option open to the court is to order a Fact Finding or a Specific issues trial. This was one of the options here. Ultimately however, it was decided that this course of action would be neither cost effective nor sensible from a time perspective. It is of note that at the end of the day the focus had shifted somewhat with the mother taking a somewhat different approach at trial. It was her case subsequently that her concerns were more to do with the need for there to be appropriate boundaries.  

5.It is also noted that it is the father’s case that historically he was the more hands on parent and that he had been responsible for a great deal of the practical care of the girls during the marriage. This is not accepted by the mother and in any event, she argues that it would now be better for R to be based with her and to have access to the father during the day time only. The father for his part argues that care and control should vest in him with reasonable access to the mother as he is more likely to be able to ensure that R has a healthy relationship with both of her parents. Alternatively, he suggests that the court make an order for shared care. He wishes overnight access to be restored as a matter of urgency.   

Background

6.By way of background reference may be made to the father’s 1^st affidavit dated the 21 May 2018, where he sets out a brief background to the parties’ marriage as follows:

5.   The Petitioner is now 50 years old [now 52] and is a housewife. I am now 58 years old [now 61] and am the Representative Director of a Japanese culture and fashion trading company named M Co. Ltd., and its Hong Kong company named M Hong Kong Limited. I was born and brought up in Japan. We met in 2001, and married in Hong Kong in 2004. We then resided in Tokyo after the marriage, but we travelled back to Hong Kong for visits from time to time. In 2012, we relocated to Hong Kong and have since then been living in Hong Kong.

7.As indicated above, the father is Japanese and the mother is Hong Kong Chinese. The mother is currently taking a part time Master of Arts in X at HK Polytechnic University and there has been some debate concerning her class timetable and her general availability for R. Other than that, she does not work. The father for his part mainly works from home, even prior to COVID, but he is required to travel from time to time. He generally returns to Japan for a few days on each occasion. He works for a family company established by his father. His son from his first marriage also works for the same company.

8.This was the second marriage for both parties. It seems that unhappy differences arose between the couple and that the marriage finally broke down in or about the summer of 2017. The father moved out on the 15 February 2018 following the signing of a mediated agreement. It is his case that the mother did not comply with this agreement. In any event it would be fair to state that there have been difficulties ever since, with the focus being on the ongoing arrangements for the girls.

The current arrangements

9.As I have said the parties have been in and out of court since the divorce petition was issued, mainly with respect to the arrangements for the girls. At present the father has access to R each Wednesday, Thursday and Friday from after school until 9:00 pm (although he sometimes returns R to her mother’s prior to that so that she can get to bed a bit earlier). He also has access on alternate Saturdays and Sundays. School holidays for both girls are split between the parties on a more or less equal basis.   

The party’s open proposals

The father’s open proposals

10.The father’s open proposals are set out in narrative form (which is not my preferred approach), but in any event I have reproduced it almost in full as set out below:

Present Access Arrangements

5.   Pursuant to the Order of Court dated 19th September 2019, the Father’s access with R is on Monday, Wednesday and Friday from after school until 9pm and day access on alternate weekends (Saturday for Week 1 and Sunday for Week 2, etc.) from 9am to 9pm. Upon the agreement of the parties, the access every Monday was changed to every Thursday instead. In addition, the Father has also been responsible for the picking up and dropping off of R to and from school every day. This Order varied the previous weekend staying access of the Father to day access, pending trial.

Father’s Proposal

Term time access for R

6.   Having perused the latest SJE psychologist’s report, the Father is pleased to note the recommendation that the overnight access to the Children is recommended as a matter of urgency. After thorough consideration of R’s welfare and carefully considering the recommendations made in the report, the Father seeks an Order in terms of the recommendation made i.e. care and control be granted to the Father with access to the Mother involving a 50/50 week-on, week-off shared split or alternatively, a 2/2/5/5 shared Care and Control Order as follows: -

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
1st Week	M	M	F	F	M	M	M
2nd Week	M	M	F	F	F	F	F

7.   As the Father is required to attend regular business trips overseas, he has kept to what was previously recommended in the first SJE psychologist’s report, whereby the Mother be contacted as the first preference to provide care for R during his absence and he is agreeable to continue to inform her of his upcoming business trips with at least 7 days’ advance notice. He asks that this be on a mutual basis and that he be informed if the mother is to travel overseas, and be given the opportunity to look after R.

Term time access for E

8.   As E remains in boarding school in the UK, the Mother has provided an undertaking through the 25^th June 2018 Order that she would provide the Father with all adequate school information in respect of E’s studies. This has not been consistently observed, so the Father requests that the Mother observe her undertaking.

9.   So far, the Father has visited E at school on two occasions, although the Mother saw fit to introduce various restrictions on E’s time with her Father, including the insistence that two separate hotel rooms without connecting doors be booked. The Mother, on the other hand, had also visited E once in May 2019 although this was not communicated to the Father beforehand and it was only confirmed in the Mother’s latest affidavit, that she in fact flew to the UK with E then for the start of term.

Forthcoming Holidays

10. Given the repeated indication of the Court that holidays are to be split 50-50, it now seems to be accepted by the Petitioner that all long holidays of the Children are to be shared equally, although the Mother has indicated that she is only agreeable to R having staying access with the Father if E is there as well. The Father does not agree with this requirement.

11. For the upcoming Christmas holidays, the Court had previously ordered on 14^th May 2019 that the same be equally split with the Mother having the first half and the Father having the second half. He is happy for this arrangement to continue and trusts that staying access with the Children will not be an issue especially in light of the latest SJE psychologist’s report. For the other long holidays as well as E’s half term breaks, the Father proposes that the same continue to be shared equally, whereby the first and second halves of the holidays can be alternated.

12. Should either party wish to fly to the UK to visit E, it is proposed that they inform the other parent at least 7 days in advance and allow the parent remaining in Hong Kong to care for R.

13. For single day holidays, the Father proposes that the same be spent with the parent having access on that day. During parties’ own birthdays and special occasions including Father’s Day and Mother’s Day, these can be spent with that particular parent on the day and returned at 9pm. For illustration purposes, if Mother’s Day falls on a day in which the Father originally has access, the Father will agree to the Children spending time with the Mother until 9pm.

14. As encapsulated in the Order dated 4^th April 2019, parties had agreed that if either of them wanted to take the Children out of Hong Kong for trips, they would first discuss and agree with the other parent before making travel arrangements with the Children and provide the planned travel destination and itinerary to the other parent 28 days before the intended travel date. A confirmed itinerary would then be provided 7 days prior to the intended travel date. The Father is happy for this arrangement to continue.

Safekeeping of Children’s passports

15. Currently, the Mother is in possession of the Children’s Hong Kong and Japanese passports. The Father therefore proposes that the Children’s Hong Kong passports be kept by the Mother whilst he keeps their Japanese passports and HKIDs.

The mother’s open proposals

11.The mother for her part proposes as follows:

1.  The Court has previously ordered that custody in respect of both the elder daughter, MKE(“E”), and the younger daughter, MMR (“R”), be granted to Mother and Father jointly on 25 June 2018.

2.  Mother invites the Court to make the following orders in respect of E, who is currently attending boarding school in the UK:

a.  Care and control be granted to Mother;

b.  Access including staying access be granted to Father:

c.  Long school holidays, i.e., summer holiday, Christmas and New Year and Easter holiday of E be split equally between Mother and Father;

d.  Short school holidays, i.e., school breaks in October, February and May each year or other short school holidays that last for not more than 8 days be shared by Mother and Father on an alternate basis. For example, if Father shall have staying access to E during the October break, Mother shall E staying with her during the February break, and so on. The non-staying parent shall have day access to E during the other’s staying access.

e.  Mother and Father are at liberty to visit E in the UK at any time. If Father does visit E and intend to travel with E overnight, Father shall arrange a separate room for E at the hotel or any accommodation to be arranged by the Father.

3.  R currently attending AB International School in Hong Kong:

a.  Care and control be granted to Mother;

b.  Father shall have defined access to R;

i.  After school to 9pm on Wednesday and Friday;  

ii.  9am to 9pm on Saturday or Sunday on an alternate basis;

iii.  9am to 9pm every day for half of the school holidays; and

iv.  Staying access if E is also staying with Father.

c.  Father may continue the current arrangement of pick-up and drop-off R to and from school.

4.  Parties shall give 14-day notice of travelling plans together with itinerary to the other party. Father shall undertake to arrange separate (but connecting) room for E and R during travels.

The issues

12.The parties each identified the issues as set out below:

i) The issues from the father’s perspective:

1.   Should there be sole care and control to the Mother or the Father? Alternatively, should there be an order for shared care and control?

2.   Whether the Father should have staying access to the younger child R in the absence of the elder child E.

3.   How the holidays of the Children should be split.

4.   How many days’ notice should be given by the parties to the other if they intend to travel.

5.   Which parent should keep the travel documents of the Children.

6.   Whether the Mother has sought to interfere with access and the relationship between the Father and the Children.

ii)The issues from the mother’s perspective:

The mother set out what she considers to be the issues in tabula form by reference to both her position and the father’s perceived position as follows:

Petitioner Mother’s List of Issues

Issue	Father’s Stance	Mother’s Stance	Dispute
E: Care and Control	Silent	Care and Control to Mother	Who shall be granted Care and Control to E?
E: Holiday Access	50/50 split	For long school holidays: 50/50 split For short school breaks of not more than 8 days in October, February and May: one parent shall enjoy staying access for the entire break and the non-staying parent shall have generous day access	Whether for short school breaks, there shall be 50/50 split at each break or Father and Mother shall, alternately have staying access of the entire break?
E: Parents’ visits in the UK	Father proposes the travelling parent should inform the other parent 7 days in advance for the visit	Mother proposes such notice be given 14 days in advance Mother also proposes that in case Father wishes to travel overnight with E during the visit, Father shall arrange two separate hotel rooms with connecting doors.  Father shall respect the privacy of E by knocking the door and obtaining E’s permission before his entry.	1.7 or 14 days advance notice? 2.Should separate room be arranged for E when Father travels with E during the visit? 3.Shall Father provide undertaking to obtain permission before entering E’s room during such visit?
E: School information	Father accuses Mother has not been consistently complying with the undertaking of providing Father the school information	Mother denies the accusations.  To deal with Father’s complaint, Mother has requested E’s school to send all information to both Mother and Father in the future	/
R: Care and Control	Care and Control to Father.  Alternatively, Shared Care and Control to Mother and Father	Care and Control to Mother	Who shall be granted Care and Control to R?
R: Term time access	50/50 week-on, week-off.  Alternatively, 2/2/5/5 Shared Care and Control	Father’s access: After school to 9pm on Wednesday and Friday; 9am to 9pm on Saturday or Sunday on an alternate basis; Staying access if E is also staying with Father; and Father to continue pick-up and drop-off R to and from school.	Extent of father’s care / access during R’s term time
R: In case a parent is not available to care for R	In case Father is required to attend business trip and is not available for R, Father shall notify Mother 7 days in advance for Mother’s assistance	Mother proposes such notice be given 14 days in advance for Father’s business trip and 7 days in advance for unforeseeable urgent matters.	How long should the advance notice be given in case a parent is unavailable to care for R?
R: Holiday Access	50/50 split	Father’s access: 50/50 split In case E is not with R: 9am to 9pm every day In case E is with R: Staying access	Shall Father have staying access to R during the holiday in the absence of E?
Children: Single day holiday	Father proposes for single day holidays, Children shall stay with the parents having access.  For special occasions such as Father’s day, Mother’s Day, Father’s birthday or Mother’s birthday, the particular parent shall have the Children until 9pm if access falls on the other parent.	Agreed	/
Children: Traveling	Father proposes the parent intending to travel with the Children shall inform the other side 28 days in advance with the planned travel destination and itinerary.  A confirmed itinerary be provided 7 days prior to the trip.	Mother proposes the advance notice be provided 14 days instead of 28 days in advance.  Confirmed itinerary be provided 7 days prior the trip.	How long (14 days or 28 days) should the parent travelling with the Children inform the other parent in advance for the trip?
Children: safekeeping of identification documents	Father proposes the Japanese passport and HKID be kept by Father, and Hong Kong passport be kept by Mother	Mother proposes Mother shall keep all identification documents	Who shall keep the Children’s Hong Kong ID and Japanese passport?

iii) Thus, the court agrees that the following issues now need to be determined:

R

What should be the practical arrangements for R’s care going forward?

What arrangements should be put in place during term time?

Should those arrangements include overnight staying access for the father with R, in E’s absence?

Should any further orders be made for single public holidays not falling during the school holidays or other single non-school days, other than those already agreed?

Should any other orders be made with respect to special days such as birthdays etc? 

What orders should be made for care and control/shared care/joint care and control given these arrangements?

E

Should there be any order for care and control/shared care/ joint care and control for E?

Should any other orders or directions be made with respect to E’s contact with her parents during term time?

R and E

How should the holidays for both children be split?

How should overseas trips be dealt with?

Which parent should keep the travel documents of the children?  

The law

The law in Hong Kong

13.The main provisions regarding children can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that:

(1)  The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a)  in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

14.The general principles governing such applications are set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which states that:

GENERAL PRINCIPLES

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in 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 wishes 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;

List of factors

15.In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. Although this list of factors has yet to find its way into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to the arrangements for children including, care and control, access, joint care and control/shared care and the best interests of children generally. The checklist states that the following matters may be taken into account by the court when determining matters of this nature:

(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 to 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)  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or 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.”

16.It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire for the court and that it can assist in the decision-making process. In this instance however, it seemed to me that it may be important to go through this list item by item. Consequently, a more detailed consideration of the checklist will be set out below.  

Case law

17.The parties have both produced a number of different cases for the court’s consideration including the Court of Appeal’s decision in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191. Reference should also be made to a case produced by Ms Anita Yip S.C. for the mother, namely PJM v GPN FCMC 4999 of 2014 [2018] HKFC 65 (2 May 2018). In that case I made an order for shared care, and in doing so commented as follows:

13.  Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control and shared care:

Joint care and control

21. Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22. The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/rens best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case.  As I have said it is not possible for me to make a “parallel parenting” order as such.  However, I would like to make an order that supports the concept of parallel parenting. Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access.  This will make no difference at all to the practical arrangements that I intend to put in place.  They would have been the same in either event. However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

Detailed arrangements were then set out accordingly.

A similar approach will be taken in this case.

18.Reference has also been made to the High Court decision in H v N (Children: Variation of Interim Order) [2012] 5 HKLRD 498. In that judgment Poon J held inter alia that:

(6) Access to a parent was a child’s basic right. Here, F would be granted weekend staying access. M’s objection was not objectively substantiated on the evidence. Further, Cs should not be deprived of the opportunity to live and share their time with F over weekends at this formative stage of their lives. (See paras.43-44.)

Background to the litigation and an identification of the allegations made

19.The “suggestion” that the father had behaved inappropriately began when the mother filed her divorce petition on the 14 March 2018. The petition was unexpected and, as stated above, followed a mediated agreement dated the 14 February 2018 in which it was agreed inter alia that the father would move out of the former matrimonial home (FMH). Interim access arrangements were also agreed. Further the mother agreed not to prohibit the father’s entry to the FMH, not to change the locks on the door of the FMH and not to intervene or throw away the father’s personal belonging. The parties also agreed to try to mediate on other issues. Unfortunately, this promising start did not continue and contrary to what is considered to be best practice in matrimonial proceedings, the mother filed a very aggressive unreasonable behaviour petition. She also changed the locks on the matrimonial home and barred the father from entry. The particulars made a number of serious and unpleasant accusations against the father. Thankfully, on the 28 June 2018, those particulars were amended. On the 11 December 2018, the decree nisi was granted on those amended particulars.

20.In the Statement of Arrangements for the Children, the wife proposed that the father have defined access to the children in her presence. No explanation was given for this. Unfortunately, it seems that this set the tone for what was to come.

21.In retrospect, post-trial, and having reread all of the affidavits and other related documents and having seen both parties in the witness box, I accept that prior to the father moving out of the FMH, that he was a very involved and hands on parent. I also accept that he was originally responsible for the morning routine when the girls were at school. Even now he rings R in the mornings to make sure that she is up and about. The mother does not dispute this and says that this was because she has trouble sleeping and consequently, she would often wake up late. I also accept that the father would generally pick the girls up from school and help them with their homework etc etc. He was certainly an involved and an available parent for the girls. As he worked from home, he was also able to be flexible and to work around the girl’s timetable and their own commitments. Similarly, I also accept that the mother was an involved parent and that much of the organization for the household rested on her shoulders.  I also accept that she was responsible for a lot of the girl’s daily care especially when they were younger and living in Japan.   

22.Following the filing of the petition difficulties ensued with the father’s contact with the girls. I do not intend to go through all of those difficulties, but they included the mother’s request for supervision and her reliance on the particulars in the original divorce petition as a basis for refusing access. Overnight access and holiday access were particularly problematic and the parties were in and out of court on a regular basis. Twenty orders were made primarily with respect to the arrangements for the girls from the 3 May 2018 to date. Unfortunately, those orders were not always complied with. On a positive note however, joint custody was agreed as set out above and the father also agreed to the elder child E going to boarding school in the UK, even though on his case he was not informed of the application nor involved in the process. However, a consent order to that effect was also made on the 3 May 2018. It is of note that the father continues to complain that the mother does not readily communicate with him or provide him with necessary information about either child.

23.Shortly thereafter however, on the 22 June 2018 the mother filed an affidavit, in which she again suggested that the father had behaved inappropriately. She sets out her concerns as follows:

My Concerns

14. I have all along been very concerned about the Respondent having access to the Children without any assistance from me and/or domestic helper. As stated in the Petition I filed, the Respondent consumes a lot of alcohol (wine and beer) during and after dinner and throughout the evening nearly every day. The Respondent would get drunk at times and sleep on sofa on his own. I am very concerned that the Respondent would not be capable of taking care of the Children, when he has consumed alcohol, especially they are of tender age (13 and 9).

15. There were incidents that the Respondent’s conducts had caused distress to the Children, including but not limited to the incidents stated in paragraph 9(3) of the Petition, of which the Respondent entered the bathroom when E was using the same. I am not in the position to second guess the intention of the Respondent. However, solely for the purpose of protecting the Children’s feelings, I am not agreeable to the Respondent’s request of staying access, and I would revisit my position upon receiving the recommendations of the Social Investigation Officer.

16. Frankly, I am very concerned overall because of the saddening incident that the Respondent’s elder son from his first marriage committed suicide in about 2011 / 2012 when he was only about 25 years old, after the Respondent divorced his first wife. I was told by the Respondent that they had a distant relationship and the elder son’s suicide might have to do with the dealings between the elder son and the Respondent. I do not know how to articulate my feeling but this worries me and makes me not able to just “trust” the Respondent to take care of the Children.

24.The next major incident occurred on the 15 June 2019, which was the day before Father’s Day. In summary, and trying to put this as neutrally as possible, it seems that there was a huge furore when R locked her bedroom door when she went to bed. It seems that when the father queried this R became very emotional, which in turn led to the mother becoming involved over the telephone. The mother then came to the father’s home early on Sunday morning, with a man who the father did not know and proceeded to remove R from his care. Access became even more problematic after this incident.

25.The mother then made further serious “suggestions” of inappropriate behaviour on the part of the father in her 2^nd affidavit dated the 29 July 2019, stating inter alia as follows: 

26. On 14 June 2019, R was in a bad mood after she had returned from her father’s place and kept on saying that she didn’t want to go to her father place again. I asked her for the reasons, she told me as follows: -

a.   Her father touched her body while she was sleeping and made her feel very uncomfortable;

b.   He kept on kissing her, and his way of kissing was “full of his saliva” and made her feel very uncomfortable;

c.   He kept on going into her room during the night and didn’t let her lock her room door;

d.   She couldn’t sleep well at his place during overnight access;

e.   He kept on drinking wine and lied that he did not;

f.   He didn’t play with R and just asked her to watch TV. She was bored with nothing to do;

g.   His helper was rude and kept on touching and squeezing her face, she checked what R was doing all the times and that made her feel very annoying.

27. Naturally, I was worried and upset when I found out about R’s complaint. It was difficult to verify what she said but I had no reason to disbelieve R. I could have called the Respondent and asked him what happened but one thing which I honestly shared with my daughter was that it was very difficult if not impossible to communicate with the Respondent. He was stubborn and would not listen and insistent upon his own version and belief. Like R, I was feeling hopeless and helpless. R was appealing to me for help and I very much wanted to.

28. However, as the term access also came to an end, I did not want to be accused that I was interfering with the Respondent’s access, and I wanted to give the Respondent benefit of the doubt, so I did not discourage R from going to the Respondent’s on 15 June 2019. However, from the phone calls I had with R, they showed me that R simply could not stay any longer at the Respondent’s, and I had no choice but to do what is needed to protect my daughter’s interest.

The mother states that this conversation took place the day before the access of the 15 June and the incident over the locked door.

26.This theme was also elaborated upon in the letter from the mother’s solicitors to the father’s solicitors dated the 27 June 2019 when the following was stated:

2.   Since early June, R kept telling our client that she was “scared and uncomfortable” to stay overnight at her father’s place. Our client asked her why. R revealed to our client that she was touched and kissed by her father but in a way she felt very uncomfortable and it is not feeling normal. R said she wanted to leave her father’s place but she could not even lock her bedroom door for a moment of privacy. She was so frustrated and she sent her whatsapp message to her father. She told our client she just wants her father to know how she really feels.

3.   Our client then asked R if it was some kind of light padding by her father on her shoulder with a goodnight kiss; and what made her so insist to lock the bedroom door. At first. R was hesitated to tell, when our client asked her again, R then revealed that, she usually did not lock the door of her bedroom at her father’s place during the day time, but at night, she noticed that her father come to open the door of her bedroom. The sound from the television and the light at home woke her up. She then noted that her father started touching her from her neck area to her waist (along her spine) and move down near her butt; she also felt her father squeezed her with his fingers at the times, which gave her a very “discomfort” feeling. R asked her father to “go away” but he did not.

4.   Our client asked R if that was just a one-time incident. R said no because such unpleasant incident had been happened before during her stay at her father’s home at night. R also told our client that her father sometimes kissed her cheeks for ‘long kiss’ and with a lot of saliva. And she smelled alcohol from her father and was feeling so scared. This is very alarming and such “welcome touch” and “long kisses your client applied to R must be stopped at once.      

5.   Our client does not intend to stop your client’s normal staying access to R, however, such staying access shall be conducted in a proper manner. We are instructed that R has told her school counsellor about her unpleasant incident while she was staying with at her father’s place at night time especially without any trustable person around her.

It is of note that in the same letter the mother proposed flying to Japan so that she could be on “stand by’ during the father’s share of the summer school holiday.  This ultimately did not happen, but only after the court directed that it should not.

27.The mother then took R to see a psychologist. It is of note that this was not done with the father’s agreement, or even with his knowledge, even though the parties technically have joint custody. Nor did the mother seek the leave of the court. The mother says she had no alternative given the gravity of the situation. This is not accepted. Rather it seems to the court that this was done with one eye on the litigation and with a view to obtaining a litigation advantage.  The mother later sought leave to produce a report from this psychologist. I did not accede to her request in that respect.

Each party’s case on the allegations made and generally

The mother’s case

28.By the time that this matter came on for the first tranche of trial in December 2019, the mother’s case had changed somewhat, in that she no longer took the stance as set out in her solicitor’s letter referred to in paragraph 26 above or in her affidavits and there was no longer a “suggestion” that the father had behaved in a way that was sexually inappropriate towards his daughters. Instead the mother said that the high level of conflict was more to do with appropriate “boundaries” and “privacy”. Thus, in her final affidavit, filed on the 11 October 2019, shortly before the first tranche of the trial, she said inter alia as follows:

73. … From the behaviours of the Respondent I had set out in the Petition, incidents took place in May and June this year, it is my view that the difference on the perspective of the Respondent and R on boundaries and privacy had led to the current highly conflicted situation. It is my view that by having the Children stay in a different room, it could take away some tension from the relationship, particularly with R.

This theme was later developed by her counsel during the trial.

The father’s case

29.The father for his part says that he has never behaved inappropriately towards the girls and that the mother’s “suggestions” are putting them squarely in the “miserable middle”. He says that she is controlling and that she seeks to exclude him from their lives. He does not agree that there are any “boundary” or “privacy” issues.   

Conclusion on the allegations made

30.As indicated above, there is a certain “smoke and mirrors” aspect to the case initially put forward by the mother. A sense that the court had to take her suspicions seriously given the “suggestion” that the father may be a sexual predator of some kind. Although this was never expressly stated, as set out above, it is clear that this was most certainly implied. At the end of the day however, the mother has shied away from proceeding with this approach and took a rather different stance at trial. However, in the meantime the father has been denied staying access to R during term time. For the avoidance of doubt, the court agreed to this in the interim, in order to relieve R from being placed in an almost impossible position in the run up to the trial.  

31.In conclusion therefore, and for the avoidance of doubt I accept that the father has not behaved inappropriately with respect to the girls, or otherwise. I do not necessarily believe that the mother set out to destroy the father’s relationship with them, but that was very nearly the by product of her very extreme gatekeeping type behaviour. In counsel’s opening submission for the mother it is suggested that the mother’s change of stance shows that she had become “more understanding and conciliatory” and the father “more aggressive and dismissive” as the litigation had progressed. For the avoidance of doubt that is not accepted. However, on a more positive note, it is acknowledged that the mother now agrees that the father should have “substantial involvement” in R’s care and that

The only significant differences are that they disagree on the quantum of the father’s care/access and whether Father should have staying access to R, in the absence of E.       

The reports

32.In total 5 reports have been filed in relation to this matter - two reports from the Social Welfare Officer, dated the 27 September 2018 and an updated report dated the 27 November 2019, together with two reports from the Single Joint Experts i.e. Dr B and her team. The first of these, the Child Custody Evaluation Report is dated the 26 November 2018 and the second the Child Psychological Evaluation Report, is dated the 14 November 2019. In addition, the Official Solicitor filed a report on the 22 November 2019, together with a closing submission as referred to above. The difficulty is that the reports are not of one mind. Put simply the Social Welfare Officer’s reports and the Official Solicitors report, largely support the mother and the Single Joint Experts reports generally support the father. Not surprisingly therefore, the mother asks me to place very little weight on the SJE’s reports and similarly the father’s counsel seeks to rely on the SJE’s reports and undermine the others.

The Social Welfare reports

33.It is trite but nevertheless worth repeating that recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. The reports are said to be the “eyes” and “ears” of the court.

34.As indicated above in this instance the Social Welfare Officer filed two reports. In the first report dated the 27 September 2018, which was filed just six months after the divorce petition was issued, she said inter alia as follows:

36. From the children’s perspective, both of them had expressed explicitly about their wishes to maintain status quo and a demand for more flexibility and space from the father side on access arrangement. They were happy to meet with the father but appeared to be resistance to inflexible schedule and staying access at the father’s residence which was persistently requested by the father. Among the two, E demanded for more freedom and spontaneous access while R was more compliant. At the age of 13 and 10, the two children are considered old enough to express their views and their views should carry considerable weight.

37. Considering that the two children had encountered huge family changes in the past year, it is advisable to maintain the status quo in child care to a large extent for sustaining the continuity of care and the senses of security. Meanwhile, the access to children during holiday could be equally shared to foster a more balanced development of parent-child relationships. Nevertheless, a quality access does not necessarily mean staying access, especially when the children are at their adolescence. Therefore, the children shall have the liberty to accept or refuse staying access. To foster smooth and quality access, the father is advised to be more sensitive to the needs and wishes of the children with due consideration to flexible arrangement while the mother shall respect the father’s private time with the children and avoid arranging activities during access to prevent unnecessary struggle and disturbances to the children.

She recommended care and control of the girls to the mother, with reasonable access of E and defined access of R to the father.

35.The difficulty however, is that by allowing reasonably young people to choose when to see a parent and to determine for themselves if staying access should take place, when there is also an ongoing conflict about that very issue, is likely to place them in an impossibly conflicted situation. As such I cannot agree to Ms. T’s suggestion in this respect. It is also of note that currently the father has contact to R from after school on each Wednesday, Thursday and Friday and for the whole day on alternate Saturday’s and Sundays.

36.In Ms. T’s second report she reiterates her belief that the girls should be able to choose whether to have staying access with their father. In summary she said as follows:

Remark and Recommendation

37. The present investigation indicated that caring arrangement of E including an equal split of school holidays with staying access to both parties was materialized largely smooth in the past year. All the parties including E, the parents and R were happy with the arrangement especially after an enjoyable trip with friends together in this summer. Both E and her parents considered the family time on each side as satisfying and rewarding. E looked peaceful, relaxed and very much contented with the present situation. It is understandable as E was lifted from parental dispute for quite some time while her time in HK had become warm greeting time with family members and good friends massed with desirable activities. It could be a different scenario if E remained in HK where schooling, activities and daily routine were more vibrant and demanding.

38. After the departure of E last year, R missed her good companion and a main support person in the family while she became a more prominent focus of the custody and access issue of her parents. It is understandable that she felt pressured and somewhat torn between with manifestation of minor emotional disturbances, including moody condition as identified by teachers in school and minor stealing behavior. Luckily, her emotional disturbances was promptly addressed and attended to.

39. Due to her past poor experience with the father, the mother remained very concerned and skeptical about the father’s drinking habit and boundary issue with the girls. Observation on father-daughter interaction and other available information however did not suggest R was abused by the father of any kind. Nonetheless, the father should pay more attention to the fact that R is not a little girl anymore but a young adolescent who needs her own comfortable zone and boundary. Fairly speaking, the mother’s involvement of R to keep record of father’s drinking habit is not appropriate and contravened the principle of minimizing the negative impact of parental conflict on children. Yet, it is factual that the father did consume alcohol during access although he undertook to refrain from in the court hearing before the undertaking was ordered to be released by court on 14.5.2019.

40. As mentioned in the last report, both parents were devoted in child care and had provided different forms of support to the two girls since their birth. The bonding of the girls with each parent is strong and close. Despite so, R had since last year expressing her wish to live with the mother continuously and meet with the father as directed. Her stance has not changed up to this point. Putting aside the unproven allegation against the father and his drinking habit, it is worth noticing that R is a sentimental girl who used to seek emotional support and comfort from significant others of her same gender, i.e. her mother and sister, while interacting comfortably and joyfully with her father. Obviously, the mother is R’s figure for attachment and sharing while the father is more a good companion and playmate. Besides, R has grown to be a young adolescent who is shifting her focus to out-of-home social life and personal development. With her solid and secure emotional bonding with the mother, R may be more facilitated to achieve her developmental milestone at this stage.

41. Experiencing episode of emotional disturbance, the meeting with various professionals for different purposes and the change of access arrangement, it is totally natural that R wanted to lead a decent and “normal” life which she considered by now almost in shape. Judging from R’s expressed preference to live with the mother whose constant care is a source of comfort and affinity to her, it is considered in the best interest of R to maintain largely the present caring and access arrangement.

42. Meanwhile, both children’s holiday are suggested to be split equally between two parties with liberty given for them to accept or refuse staying access.  To foster smooth and quality access, the father is advised to respect the comfort zone and privacy request of the girls while the mother shall not interfere the father’s private time with the girls and his opportunity in parenting his children even in the course of disagreement or conflict, which is normal in every parent-child relationship.

The Single Joint Experts Reports

37.Ms. Anita Yip S.C made significant, and in my view largely unfounded criticisms of Dr B and her team. In her closing she made great play of the fact that R had apparently said different things to the SJE when compared to the comments made to the SWO and the OS. Dr B is not to be blamed for this. It is also suggested that her live evidence was not consistent with her written reports. This is also not accepted. Ms. Yip also said that Dr B suggested that R was “coached” or “prompted” by the mother to say something bad about the father, whereas this was not stated in her report. Although I accept that those words may not have been expressly used, the meaning of the report was clear. As pointed out by Ms. Irving for the father:

12. That fact that the word “coaching” was not in the report is neither here nor there, as it evolved in the course of asking and answering questions in cross examination. Dr. B had said of R in her oral evidence “It seemed as though she was repeating something somebody else had told her was not okay” and when asked further about this, used the word “coaching”.

13. But Dr. B had said in her first report that the Mother was “actively planting negative messages about the father” [B/35] in the minds of both girls, which is exactly what she had referred to the quotation above.  Whether called “coaching” or not, it is the same thing; repeating a message taught by someone else.

14. Dr. B did go on to explain that this is “not conscious coaching....; what I mean is that she is being coached to believe a certain way about her father” T/16N.

15. Dr. B was challenged as to where in her report was it suggested there was coaching, prompting or encouraged to think... and while Dr. B replied quoting the “me and my mum don’t feel comfortable” example, she might equally have referred to the part quoted above, about the Mother “actively planting negative messages about the father” which is a perfect example of Dr. B recording that the mother had been encouraging the girls to think about their father in a certain way.

I accept this analysis of the evidence.

38.Ms. Yip also accuses Dr B of advocating for the father, of being dishonest and also of essentially making up evidence. None of this is accepted. Dr B was, as ever, a helpful and straightforward witness. It seems that her only crime was not to side completely with the mother.

First report dated the 26 November 2018     

39.In the first report Dr B and her team reported as follows when discussing the parents:

Family System

Mr. M [the father] reports that when young he did not have a close relationship with his parents. He adds that he did not feel they demonstrated much love towards him. His parents remained married until his father passed away but did not appear to have a particularly happy marriage. He describes his parents as implementing permissive parenting and rarely interfering with him.

Ms. S [the mother] reports that she comes from a broken family and had a difficult childhood. Her mother was a traditional Chinese woman who believed girls did not contribute to a family and therefore favored Ms. S’s elder brother. Her mother was still young when she separated from Ms. S's biological father, and liked freedom to work and enjoy herself so Ms. S lived separately from her for most of her first 18 years; she was sent to various places, including a neighbor’s home to live for a few years, a children’s center, boarding school and alone with her brother for a period. Moreover, Ms. S’s mother was very critical towards her and said she was stupid and incapable of doing well academically. Furthermore, she implemented physical punishment even when Ms. S had done no wrong. Ms. S believes her mother’s negative parenting style forced her to become independent, tough and persistent. In addition, she reports that when she was between five and six years old and living with her mother’s friend’s family she was sexually abused by a neighbor.

40.In so far as their living arrangements are concerned, the report adds:

Prevailing Living Arrangements

Currently, Ms. S lives in the marital home on Park Island. R lives with her, as does E when she is home from boarding school. The total area of the rented three-bedroomed accommodation is approximately 2,000 square feet. The sisters’ bedrooms are adjoining and have a sliding door between. A full-time, live-in domestic helper is employed. Mr. M lives in a three-bed roomed rented apartment in the same complex on Park Island, a few minutes walk from the marital home. One of the bedrooms has been furnished for the girls and contains a television and a supply of pajamas and clothing for R. Mr. M employs a live-in domestic helper who currently occupies one of the three bedrooms. Both homes have been inspected by the Social Welfare Officer and deemed to provide good living conditions.

41.When directly commenting on the interview with E, the report stated that:

E herself reports that she has settled well into QEC and is happy there. When in Hong Kong she enjoys visiting her father and she states that she would like to spend part of her school holidays with him and part with her mother. She also likes to return to Hong Kong to meet up with her friends here. She says that during her current school holiday she prepares her own breakfast and leaves her home to spend the day with her friends before her mother is awake. She adds that her mother is often not at home. She was directly questioned by the Evaluators about sleepover access with her father and stated, “I’d go but I don’t think Mum would want me to”. She further reported that she dislike packing her belongings, including her electronic changers and devices and skincare products, to move back and forth between the parental homes. She added that her bedtime at her mother’s home is around 11:30 pm whilst at her father’s it is 9:30-10 pm. She reports that there have been no inappopriate behaviors by her father towards her although she thinks her mother “imagines there’s stuff going on.” She adds that before the parental separation her mother became very angry when R sat on their father’s lap. She also disclosed that she believes her mother does not want her or R to suffer the misfortunes experienced by Mr. M’s sons.

42.Whereas R said as follows:

R herself says she believes that her father stole money from her mother as well as a letter written by her mother. She also reports that she enjoys her access visits with her father and the games of chess, cards and Uno that they play together. On direct questioning in relation to overnight access, when asked why she does not want to have a sleepover at her father’s home R replied, “I don’t know” and added that her mother is okay with her going to his home during the daytime. She further stated, “Me and my mum don’t feel comfortable [with me staying overnight there] without someone there to supervise.” On further probing as to why she does not feel comfortable she said, “Because he’s a guy and I’m a girl.”

On direct questioning R disclosed that she eats dinner alone on the weekdays she spends at her mother’s home and also eats nuts, crackers and biscuits whilst her mother is not there. She stated that she goes to bed at 10:30 pm on Saturdays, and her mother is sometimes still at school then. She denied any inappropriate behaviors by her father and further stated, “Dad doesn’t touch me in a bad way.”

43.These paragraphs with respect to the girls have been repeated several times in the affidavit evidence and in the party’s respective submissions. I largely accept that these views are an accurate reflection of the actual views of the girls as at November 2018 – nearly 2 years ago. I also note concerns about the mental health of the father and E in particular as at that stage. In the part of the report entitled Clinical Implications and Observations the following is stated:

CLINICAL IMPLICATIONS AND CONCLUSION

Upon receiving joint instruction from Mr. M and Ms. S, this Custody Evaluation has been prepared for Court purposes in order to:

1)   Provide a psychological report on the family (both children and the Petitioner and Respondent);

2)   Include recommendations with respect to Care and Control arrangements made by the Court on the children’s behalf.

Despite being capable and caring parents with mostly complementary personalities and parenting skills, Mr. M and Ms. S seem to be having clinically significant difficulties transitioning from being an intact family unit to a functional separated family system. While Mr. M appears to have a better understanding of the importance of a cooperative and civil co-parenting arrangement for their children’s emotional and psychological well-being, Ms S continues to actively plant negative messages about Mr. M in the fertile minds of both E and R. Ms. S and Mr. M are encouraged to genuinely question their motives before any information about the other parent is offered to either child. Furthermore, they are cautioned against sharing disparaging information with the children based on the simple premise that E and R’s healthy emotional development hinges on the absence of parental conflict and the presence of supportive co-parenting.

Test data, clinical observations and information provided by corroborative sources do not support Ms. S’s fears that Mr. M enacts sexually or socially inappropriate behavior on or in the presence of either of the M girls. Ms. S’s history of sexual abuse in early childhood is noted, however, and thus there is a possibility that her residual emotions surrounding this traumatic experience are at risk of shaping the thoughts, beliefs, and behavior of her daughters with specific reference to their relationship with their father. While it is not unusual for mothers sexually abused as children to report confusion about healthy family characteristics, this confusion creates interpersonal conflict which increases internal stress for the mother and external stress for the child(ren). As a result, Ms. S’s seemingly irrational fears are working to undermine and erode the basic sense of trust and security E and R once gained from one of their primary attachment figures, their father. Not only does this constitute as a form of emotional abuse, albeit there is a possibility that Ms. S’s fear is very real in her mind, the long-term effects of chronic relational adversity are well documented and can disrupt healthy development across social, emotional, self, cognitive and biological domains.

It is of particular note that research does not link non-sexual exposure to parental nudity with psychological harm; rather, high body self-image and family social nudity are positively correlated. In the absence of abuse, there is no specific reason why a child/adolescent should be protected from observing gender differences in the presence of a trusted parent, especially in the safety of the family home; however, establishing clear boundaries is paramount as the act of observing rules surrounding nudity, modesty, personal space, and safety forms the basis of the development of a set of more complex psychological concepts such as privacy, self-respect and consent. It is also important for parents to be aware of and respect cues given to them by their children, especially as they enter puberty, with regard to the emotional effects their displays of nudity may evoke and how this impacts the child’s own personal need for privacy.

Because children of divorce are at much greater risk of emotional and adjustment issues, it is arguable that the signs of psychological distress just beginning to manifest in R and more strongly observed in E stem from a loss of faith in their primary attachment figure yet there is little doubt that the division created by Ms. S within their family unit is, in the very least, a major contributing factor.  While R’s lack of trust in her father appears to have increased her psychological and emotional dependency on her mother, E has withdrawn as a mode of “responsible” self-defense, turning her negative feelings inward, and she is now depressed, anxious, self-critical, feeling alienated from others, views the world in a negative manner and experiences some, possibly well founded, paranoid ideations.

Furthermore, although Ms. S is psychologically closer than Mr. M with her daughters her expectations, in terms of both their needs and her role as a primary caregiver, could be considered by some as bordering on neglectful and especially in R’s case, highly developmentally inappropriate, especially so during this difficult family transition.

The stark reality remains that Mr. M is the primary caregiver by virtue of elimination as Ms. S is rarely available to parent. She does not get up before school in the morning, and is absent on Tuesday and Thursday evenings until past bedtime. R currently spends Wednesday and Friday at her father’s house until bedtime, as well as Saturdays, with the result that the time Ms. S spends with R is limited to Monday evenings and Sunday after church.

In contrast, Mr. M picks up his daughter and takes her to school every morning, and he is actively involved and interactive with her during the times that she is at his house (Wednesday, Friday and Saturday). Ironically, Ms. S is concerned that Mr. M does not enforce appropriate boundaries while at the same time she fails to acknowledge that in her absence there can be no parental boundaries at all.

Unsurprisingly, when parents show better emotional adjustment after the divorce, so do their children. Anger and conflict are normal, but it is also of the utmost importance that children witness their parents resolve these problems and disagreements and stick to compromises so that the family can function, adapt and maintain harmony whenever possible.

44.Again, these comments are accepted as being an accurate reflection of the situation as at that time. The report recommends inter alia, care and control of both girls to the father with generous access and visitation to the mother.

The second report dated the 14 November 2019 

45.In the second report the following Clinical Implications and Conclusions were reached:

CLINICAL IMPLICATIONS AND CONCLUSION

Following the Custody Evaluation Report on the S/M Family submitted to the Court on November 26^th, 2018, an updated psychological report in relation to the children of the family has been ordered by H.H. Judge Melloy in relation to the forthcoming trial commencing on December 2^nd, 2019.

Dealing with and overcoming relational difficulties between children, spouses and extended family members are a normal part of parenting. Defending oneself against serious yet baseless allegations and frequent litigation over rather trivial parenting disputes are not. (For example, in absence of any evidence of sexual abuse, bringing before the Court disagreements between a father and daughter regarding the “sloppiness” of his kiss on the cheek or his concern regarding the possible safety hazards of a child locking their bedroom door while they sleep are not usual). High-conflict family law litigation is not only stressful on parents, it is extremely detrimental to the psychological adjustment and wellbeing of children (Gilmour, 2004). Although Ms. S makes it very clear that she feels she should be awarded more time with E and R, the evidence to support such a notion is lacking. The basic fact remains that there is no credible evidence to suggest that Mr. M is a potential risk, of any kind, to the safety of either of his children.

A parent has a natural legal right to “enjoy the custody, fellowship, and companionship of an offspring” and Savard (2010) argues that “the obligation of each parent to encourage and nurture the relationship between child(ren) and the other parent is constitutional in nature”. Nonetheless、it is widely accepted that breaches to the parent-child relationship come in many forms such as words, actions, demeanor, and/or implication. Unfortunately for the M children, Ms. S appears to continue to be unable to appropriately encourage and nurture the feelings of love her children have for their father. Instead, she has declared that she herself is the only parent capable of providing appropriate and effective emotional support to them.

In an attempt to understand Ms. S’s pattern of thinking, it appears that her lack of emotional connection throughout the marriage with Mr. M has become the lens through which she, rather erroneously, views his value as a parent. Projection dynamics act to maintain her belief that she is the emotionally superior parent, and therefore at every opportunity she highlights her perceptions of Mr. M’s interpersonal shortcomings and shares her negative thinking with her very impressionable daughters. By now and via repeated exposure, both E and R have begun to align their behavior with their mother’s views. Despite stating that “both parents are important”, “[R and E] need their father’s love” and [both parents] should “work together”, Ms. S’s actions and words appear to demonstrate quite the opposite: she encourages R to report back to her on Mr. M’s behavior, undermines his parental authority, blocks his access and attempts to stain his moral character. It is of note, however, that throughout the separation and divorce proceedings, Mr M has remained engaged, present and physically responsible for R’s daily care most of the time.

Whilst recognizing that E and R appear to be psychologically much closer with their mother, this parenting strength should not serve as a reason to exclude Mr. M from being present, on a daily basis, from important bonding moments inherent to the act of raising children. Rather, Ms. S’s strengths should be viewed a complimentary to Mr. M’s very different yet equally valuable parenting contribution. Most importantly. it is worth noting that the restriction of child access is not only a violation of Mr. M’s parenting rights, but it could further undermine E and R’s sense of safety and security when in the care of their father as well as limit his ability to apply new parenting skills as he learns and responds to his daughters’ ever evolving needs.

Given that Ms. S believes herself to be the more emotionally adept of the two parents, she is encouraged to use her skills and aptitude to assist R, in particular, work through disagreements and conflicts with her father in order to communicate and negotiate with him instead of using such situations as potential leverage to undermine his parenting skills, invalidate his parenting style and tarnish his character. As stated in the previous report, “Mr. M appears to have a better understanding of the importance of a cooperative and civil co-parenting arrangement for their children’s emotional and psychological wellbeing, while Ms. S continues to actively plant subtle negative messages about Mr. M in the fertile minds of both E and R”.  Ms. S is reminded that her children’s healthy emotional development hinges on the absence of parental conflict and the presence of supportive co-parenting.

Given that Mr. M appears to demonstrate normal-range parenting behaviors and Ms. S appears to be facilitating the development of a cross-generation parent-child coalition against him:

1)   Their repetitive pattern of interaction within the family system is likely to be pathological:

2)   The breakdown of appropriate generational boundaries between parents and children significantly increases the risk of emotional abuse:

3)   Boundary violation and a failure of Ms. S to recognize the psychological distinctiveness of E and R from her own wants and needs will possibly interfere with the girls’ development and may lead to psychopathology in adulthood.

Maintaining contact and overnight access with Mr. M and continuing to provide both E and R with on-going family therapy is recommended as a matter of urgency.

46.The report recommends care and control to the father, in the event that shared care is deemed unworkable:

Recommendations for Mr. M and Ms. S

-     Should it not be possible to grant a shared Care and Control Order, Mr. M should be granted Care and Control of E and R with access involving a 50/50 week-on, week-off shared split. Holidays and important events should be equally split on a rotating bi-annual basis.

In other words, and this was reiterated by Dr B in the witness box, shared care would be her preference, but concerns remained as to whether this is workable or not.  

The Official Solicitors Report and closing submission

47.The Official Solicitor filed a report on the 22 November 2019. He essentially took the stated views of the girls at face value and accepted that moving between two households was likely to be annoying or even frustrating and he concluded that:

21. Based on the above reasons, we respectfully submit that the following arrangement shall serve the best interests of the children:

(a)  The Mother shall have sole care and control of E and R;

(b)  The Father shall have reasonable access to E; and

(c) The Father shall have defined access to R with staying access only in the presence of E (detailed terms to be agreed by the parties or determined by this Honourable Court).

48.Ms. Irving points out as follows in her Reply:

The OS report

79. §12: It is said that the daughters’ preference for not staying overnight with the father was regarded by the OS as “genuine reasons”. This is a difficult submission to accept when Mr. C did not explore the “allege “combination of programming and exclusionary manoeuvres facilitated by [the Mother]””, yet dismisses these on the basis that there is “strong mother-children attachment regardless of its cause” [B124§ 16].

80. However, in the Closing Submissions of the OS, it is said “What should be emphasized that the children’s wishes and feelings do not entirely hinge on the unsubstantiated allegations made by the Mother against the Father” [Para 4] This appears to acknowledge that the children’s feelings have certainly been influenced by the Mother’s allegations, yet that has not been factored into Mr. C’s recommendations.

I accept this as a valid criticism and do not intend to attach too much weight to what is said in this report.

Conclusion

49.In conclusion then, although I accept that the girls have made their preferences clear, nevertheless those stated preferences must be seen in the context of this particular case. I largely accept the comments and concerns expressed by Dr B both in her reports and in the witness box. However, as will be seen, I have decided not to follow her recommendations in their entirety.

The character of the parents

The mother

50.In all trials concerning children it is incumbent on the trial judge to see the parties in the witness box so that she is able to form an assessment of the parents for herself. In this instance it was difficult to match the mother’s litigation behaviour with how she presented in the witness box. She came across as being both warm and charming. I also suspect, and this is bourne out by the evidence, that she is somewhat manipulative. I have no doubt that the girls would naturally wish to spend time with her. I do not know why, in truth, she allowed the litigation to get so out of hand. As indicated above, I accept that she may not have deliberately set out to destroy the girl’s relationship with their father, but this was very nearly the byproduct of her original “suggestions.” It may be that she has some emotional/psychological baggage that only she can deal with and that this is the reason for the extreme way that she chose to handle things. I do not know. I am not a psychologist. But it seems to me that it would be sensible for her to obtain some appropriate therapy as this order must be complied with. To that end it should be noted that it is the court’s intention, and rather unusually given that this is a children’s matter, to endorse a penal notice on this order.

The father

51.Conversely the father presented as having quite a “low mood”. He was quite muted in his responses and I accept the assessment made of him by Dr B that he presented as if he may be depressed. If this is the case, then it is imperative that he also receives appropriate therapeutic support for this. I accept that he is an attentive and caring parent, who is able to appropriately parent the girls. I also accept that this litigation has been a terrible and largely unnecessary ordeal for him.

The check list of factors     

The ascertainable wishes and feelings of the child concerned considered in the light of her age and understanding;

52.I accept that E has largely voted with her feet and that she has made it clear that she wishes to see both parents during the school holidays on a more or less 50:50 basis. She does not like having to shuttle between two households for short periods of time and on that premise the parties have agreed to alternate the shorter school holidays and to divide the longer ones.

53.Although R has also made her views known, I also accept that the father has not behaved inappropriately with respect to her. I also accept that her views are likely to have been influenced by the mother, albeit perhaps not directly.  It is a child’s right to see and have a relationship with both of her parents. This normally includes overnight staying access. This case should not be the exception to the rule. It seems to me that R should have overnight staying access with her father, even if E is not in Hong Kong and not able to be present at the same time. However, I am also concerned to reintroduce such staying access on a gradual basis.

The child’s physical, emotional and educational needs;

54.Both girls, but R in particular since she is currently in Hong Kong, need a parent to be available for them most of the time. They are both doing well academically and the school reports for both girls show this. During COVID, R has also benefitted from having the mother’s home set up for her, so that she was able to be home schooled in an optimal environment, with plenty of space and more than one computer available to her. The mother is also able theoretically to cater for most of her physical and emotional needs. The difficulty is that historically she has often been absent for study and other reasons from the home. It has then been the father who has taken up the role of being the available parent on the ground and he has performed that task well. Going forward therefore, the order that I intend to make is made on the premise that the mother will be a physical presence in the home, when R is in her care. Similarly, she should also be a physical presence in the home when both girls are with her over her share of the school holidays.     

The nature of the relationship of the child with each of the child’s parents and with other persons

55.I accept that the girls have a good relationship with both of their parents, but that they may have more of a natural affinity with their mother at this stage of their development.

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

56.The reintroduction of overnight staying access should have very little impact on R, given the fact that she is already having regular contact with the father.

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

57.The court is concerned with the practical arrangements for two children who are of mixed race. It is important that they have the opportunity to relate to both Japanese and HK Chinese culture.

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

58.In a nut shell it would be fair to say that the father presents as being the sensible parent. The one who sets rules and provides appropriate guidance. He is also the parent who takes the practicalities of parenting seriously i.e. getting R up for school, making sure she gets enough sleep, that she does her homework etc etc. Whereas the mother presents as being the parent who would provide the emotional support. The parent to whom the girls would probably turn to for help with friendship issues, boys etc etc. I agree with Dr B that together they undoubtedly made a very good team.

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

59.As indicated above I accept that R has not suffered any physical or emotional harm at the hands of the father. I am though concerned that she may be at risk of some psychological harm caused by the extreme nature of these proceedings and the fact that she has got caught up in the middle of them. She has also been asked to tell tales and to report back to the mother in a completely unacceptable way. Thus, I think she is at risk in the event that this conflict does not stop. It is of note that Dr B is of the view that E is also at risk and that she is in need of psychological support. I am pleased to note that some has, at long last, been provided. The court will expect E to continue to see Dr P, as needed.  

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

60.This has been set out above and will not be discussed further.

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

61.I accept that both parents should, in an ideal world, be able to meet the needs of the girls. However, as set out above, I also accept that they each have their own strengths and weaknesses. 

Discussion

R

What should be the practical arrangements for R’s care going forward?

What arrangements should be put in place for term time?

Should those arrangements include overnight staying access for the father with R, in E’s absence?

62.At present R is with her father on Wednesday, Thursday and Fridays from 4:00 pm – 9:00 pm and on alternate Saturday and Sundays from 9:00 am – 9:00 pm. Prior to the pandemic the father would pick R up from school. Since Covid, and during the period of home schooling he has picked her up at the entrance of the mother’s block of flats at 4:00 pm and returned her there at the end of the access period. In other words, R is with her father for approximately half of her non-school time, save for overnights. Given the fact that in retrospect there seems to be little substance to the mother’s original “suggestions”, it seems to me that there can be no question that overnight access should be resumed as quickly as possible. The concern is that this may backfire if not handled carefully. Consequently, I intend to make an order in two tranches. Initially, in the period from the start of the resumption of school on the 29 September, to the start of the school Christmas holidays, I shall order that R have one overnight access per week. This shall be either on Friday night, if the father is to have access to R on Saturdays and on Saturday overnight if the father is to have access to R on Sundays. Thereafter, I shall vary the order and the parties shall move to alternate weekends, with R having a whole weekend with one or other of her parents.

First tranche – from the 29 September 2020 – 18 December 2020

63.The father shall have the care of R overnight on alternate Fridays and Saturdays. This shall commence on Friday 9 October 2020. He shall pick R up from school on Friday (9 October) and he shall have the care of R overnight, returning R to her mother’s home on Saturday evening at 9:00 pm.  On the following weekend he shall have the care of R overnight from 6:00 pm on Saturday evening (17 October) until 9:00 pm on Sunday evening (18 October). This weekend arrangement shall then alternate. He shall continue to have contact with R on Wednesday and Thursdays’ from after school until 9:00 pm when he has overnights on Fridays and on Wednesday, Thursday and Fridays when he has overnights on Saturdays.

Second tranche – from the 11 January 2021 – 24 June 2021

64.The above order shall be varied in that the father shall have the care of R on alternate weekends from Friday after school until Sunday at 9:00 pm. He shall continue to also have contact with R after school on Wednesday’s and Thursdays until 9:00 pm. In the absent of any other agreement to the contrary, the father’s first alternate weekend shall be on Friday 15 January 2021 from after school until Sunday at 9:00 pm.   

65.In making this order I do not accept that R should be told that she has an option in this respect, or that she be given a choice. If this order is not complied with then there will be consequences. She is only 12 years old. An order for one overnight per week is the very minimum that one might expect in a normal divorce situation concerning a 12-year-old girl.  

Should any further orders be made for single public holidays not falling during the school holidays or other single non-school days, other than those already agreed?

Should any other orders be made with respect to special days such as birthdays etc?

66.The parties are agreed that single public holidays and other single non-school days should be taken as they fall. In other words, the mother shall have those days if they fall on a Monday or Tuesday and the father shall have these days if they fall on a Wednesday or Thursday. Fridays shall be taken by whichever parent has R staying with them for that evening. For the avoidance of doubt, in the event that R is scheduled to be with the other parent on either parent’s birthday or on Mother’s or Father’s day, then the arrangement shall be varied so that she can spend Father’s day and the Father’s birthday with the father from 10:00 am – 9:00 pm and Mother’s day and Mother’s birthday with the mother from 10:00 am – 9:00 pm or from after school until 9:00 pm if either birthday is on a school day. 

What orders should be made for care and control/shared care/joint care and control given, those arrangements?

67.In such circumstances the order for joint custody shall remain in place and I shall order that the parties have shared care of R as set out above.

68.In the event that either parent is unavailable to take care of R when she is designated to be with them, then the other parent should be given first option to care for her. This includes the father’s business trips. Both parties shall give the other as much notice as possible, and in any event not less than 7 day’s notice in advance of any such proposed trip.    

E

Given the arrangements in place for E, should there be any order for care and control/shared care/ joint care and control?

Should any other orders or directions be made with respect to E’s contact with her parents during term time?

69.Court orders should reflect the reality of a situation. In this instance E is at boarding school and her holidays are shared. It is agreed that the parties shall continue to have joint custody of her. In my view it is not appropriate for an order to be made for either care and control/joint care and control or shared care, as in reality neither parent is caring for E on a day to day basis. Consequently, an order shall simply be made that both parties shall have reasonable access to her.

70.In addition, it is further directed that both parents may have contact with E whilst she is at boarding school and that each shall give the other parent 7 day’s notice in the event that they intend to visit her at school and take her out for the day or for a longer exeat. As before, and for the avoidance of doubt the father shall arrange for E to have a separate room if he takes her out of school overnight – i.e. either a separate hotel room or a separate bedroom in other rented accommodation.  No other directions or undertakings are deemed necessary in that regard.

R and E

How should the holidays for both children be split?

How should overseas trips be dealt with?

Which parent should keep the travel documents of the children?

71.The longer school holidays shall continue to be split, as initially set out in the court order dated the 14 May 2019. With effect from Easter 2021 the shorter school holidays may be alternated with both children being based with one parent and seeing the other during that period. Prior to that it seems unlikely that either child shall be spending the shorter school holidays in Hong Kong. It seems that in so far as R is concerned there will be no Autumn half term break in 2020. The situation next year is largely unknown.   

72.Each parent may take the girls away for their share of the school holidays and not otherwise. They shall each inform the other at least 14 days in advance, with a confirmed itinerary at least 7 days thereafter. It is suggested that the parties file a separate consent summons giving each other general leave to take the children out of the jurisdiction of Hong Kong from time to time for holidays and other excursions.

73.In so far as travel documents are concerned, E shall keep all of her own travel documents including her HKID. Copies shall be provided to both parents. In so far as R is concerned, she shall retain her own HKID, with a copy being provided to each parent. Otherwise the father shall retain her Japanese passport and the mother shall retain her Hong Kong passport.

Other orders/directions

74.It is further directed and/or ordered that:

a)   the parties shall appoint a Parental Co Ordinator to assist them with carrying out the terms of this judgment/order.

b)   The First Appointment shall be adjourned to the 17 December 2020 at 9:30 am.

c)   There shall be a further callover with respect to arrangements for R on the 7 May 2021 at 9:30 am.  

d)   Both parties do personally attend both hearings.

e)   Both parties do obtain some therapeutic support for themselves and the therapeutic support for E to continue. Consideration also to be given to R similarly receiving some therapeutic assistance.

f)   A short updated Social Investigation Report be called for with respect to R, staying access and shared care only, to be filed on or before 30 April 2021.

g)   A penal notice to be endorsed on this order and the parties to be warned of the consequences of non-compliance.

h)   Liberty to apply.

Costs     

75.I appreciate that there may be some argument over costs, but notwithstanding this, given that this is truly a child related matter I shall make an order nisi to be made absolute in 14 days’ time that there be no order as to costs, such costs to be taxed on a party and party basis if not agreed. There shall be certificate for counsel. In the event that either party wishes to challenge this, it is suggested that in the first instance a summons is issued returnable on the 17 December 2020.

Ms. Anita Yip S.C and Mr. Ken SH Chan instructed by ONC Lawyers appeared for the Petitioner

Ms. Frances Irving instructed by Ip & Heathfield for the Respondent