Cwc v. Kscg

FCMC 15082/2017

[2020]HKFC 176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 15082 OF 2017

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J U D G M E N T
(CUSTODY)

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1.This is the trial on whether there should be joint or sole custody of the children of the family, namely the elder daughter aged 10 (“Daughter”) and the younger son aged 5 (“Son”) after a failed Children Dispute Resolution (“CDR”) hearing. The respondent father (“Father”) asks for joint custody, whilst the petitioner mother (“Mother”) asks that an order be made granting her sole custody. 

2.During the CDR hearing, parties have agreed on the care and control, and also access matters of the Children.  Parties could not agree on the custody matter and the case was adjourned for trial.  The only matter for the court’s determination for this trial is whether custody be granted to the Father and the Mother jointly, or sole custody be granted to the Mother. 

Background

3.The Husband was born in 1966 and is 53 years old.  He went to USA for furthering his studies after completing secondary level in an international school in Hong Kong.  After obtaining the Bachelor Degree of Architecture, he came back to Hong Kong and worked in the property management field.  Since about 2000, the Husband has become a director of companies and has been working in the family business.

4.The Wife was born in 1976 and is 42 years old.  her family migrated to USA when the Mother completed Primary 5 in Hong Kong.  She came back to Hong Kong in 1999 after graduated from a Bachelor Degree of Arts.  She worked as a trader in an investment bank and ceased working in 2009.  Since then, she has been a full time housewife.

5.The parties were married in 2003 in Hong Kong.  The Daughter and the Son were born in 2008 and 2013 respectively (collectively “Children”).

6.The Daughter was assessed to have Attention Deficit Hyperactivity Disorder (“ADHD”), predominantly inattentive presentation, at 6 years old.  She was prescribed medication and her inborn atopic eczema intensified as a side effect.  She was later assessed by a clinical psychologist to have superior intelligence with strength in verbal comprehension.  However, she was also diagnosed with dyslexia in Chinese word literacy and rapid naming.  In an assessment in June 2017, the Daughter continued to show clinical features of Attention Deficit Disorder (“ADD”) when she was not on medication.  The Daughter also has food allergy, which may cause serious skin itchiness for her.

7.The Son has serious food allergy which may lead him to cough, vomit, have hive skin and short of breath, which requires immediate medication of anti-histamine and if lack of effect, epi-pen (ie. life-saving injection in the thigh).  The need to use anti-histamine in the Son’s case takes place once a week in average.

8.In 2002, a flat was purchased by the Father, together with another flat purchased subsequently, which was on the upper floor of the flat already purchased, had been the former matrimonial home.

9.In about April 2016, the Mother had moved out of the master bedroom of the former matrimonial home.  According to the Mother, she started to sleep separately from the Father owing to the prolonged dissatisfaction on the Father’s indifferent attitude towards her and the Children.

10.On 8 July 2016, the Mother filed the Petition for divorce relying on the ground of unreasonable behaviour of the Father, which was served on the Father through his former solicitors in December 2016.

11.In July 2016, the Mother left Hong Kong with the Children to live in USA.  The Mother has been living with the Children and her parents in USA in a house bought by the Father in 2012. 

12.At the time when the Children left Hong Kong, the Daughter has completed Primary 2 in a prestigious school in Hong Kong and the Son has completed pre-nursery class at a kindergarten and international nursery in Hong Kong.  

13.When arriving at USA, the Daughter studied Grade 3 in an elementary school (“School C”), which she did well in school and performed satisfactorily in all subjects without the need for extra learning support.  She also received tutorial from a specialist in ADD on 2 afternoons during weekdays.  The Son attended nursery class when arrived at USA.

14.On 31 March 2017, the Mother applied for maintenance pending suit (“MPS”). 

15.In relation to the application for MPS, by consent, it was ordered on 3 August 2017 that the Father shall continue paying the Children HK$30,000 each per month.  The Father had also agreed to pay a sum of HK$10 million to the Mother, which was paid on 31 July 2017. 

16.The parties subsequently agreed that the Mother to file a fresh petition on the ground of one-year separation with consent to divorce, and all the relevant documents were ordered to be transferred to the new divorce case, that is the present proceedings, with the Petition filed on 17 November 2017. 

17.At the CDR hearing on 2 November 2017, the parties have reached agreements on several matters.  It was ordered that :-

(a)     Care and control of the Children be granted to the Mother.

(b)     Leave be granted to the Mother to remove the Children from Hong Kong to reside in LA.

(c)     Staying access arrangements from 25 to 30 December 2017 in LA were granted.

(d)     Leave be granted to the Mother to take the Children for holiday for 7 days in January 2018.

(e)     Leave be granted to the Father for access on half of the long holidays (ie. Spring holiday, Summer holiday and Christmas holiday) with detailed arrangements to be further agreed between the parties.  

18.Apart from the Orders made by the Court, there were also confirmation and undertakings made by the parties, including the following :-

(a)     The undertaking by the Father that he shall arrange a relative called O (“O”) to assist him in taking care of the Children during access.

(b)     The acknowledgement from the Father not to push for access if the Son displays sign that he is not ready for staying access or indicates an unwillingness of staying access.

19.Despite much agreements had been reached, the parties cannot agree on the issue of joint or sole custody, and therefore the case was adjourned for trial. 

20.After the CDR hearing, there was the application and argument hearing about whether a clinical psychological report should be called for.  There was also the suggestion that there may be children alienation, which may have affected the access of the Children.  After argument hearing, it was ordered on 13 March 2018 that a clinical psychological report be called for.  Updated Social Investigation Report and the Updated International Social Investigation Report had also been called for the preparation of the trial.

The Mother’s case

21.It is the Mother’s case that the parties have been unable to communicate effectively in the interests of the Children, from matters of schooling to medical issues and even over activities and access.  This has been the case throughout the marriage and since the parties separated, despite the Mother has always been willing to communicate and discuss the Children matters with the Father.  It is not something that the Mother has recently complained of to further her case for sole custody.  On the contrary, the Father has sought to rectify the situation over communication to support his case, but unfortunately with little practical effect. 

22.Ms Rattigan, Counsel for the Mother, submitted that the problem of the inability to communicate effectively in the interests of the Children is further exacerbated by the fact that the parties live in different jurisdictions and very different time zones.

23.Ms Rattigan further submitted that despite the reports from the Social Welfare Officer and the Psychologist both recommending joint custody, as the Mother was amenable to this at the time, it is clear that going forward this is simply not going to work, not least because the parties have been unable to even implement the recommendations made by the professionals in the hope that better communication could be achieved. 

The Father’s case

24.It is the Father’s case that he has demonstrated his dedication to the Children and he has displayed his genuine wish and ability to be a custodial parent.  It is recommended by the Social Investigation, the Updated Social Investigation Report and the Psychological Report that joint custody be granted to both the Mother and the Father, as it is in the best interests of the Children.

25.Ms Yip, Senior Counsel for the Father, submitted that the complaints made by the Mother about the difficulties, if not impossibility, to work with the Father as co-parents, are not genuine.  It was the Mother’s intention to exclude the Father.  The Mother should not be rewarded with sole custody just because she has tried to make it appears to be difficult.  Ms Yip has drawn the Court’s attention that in fact, the Mother and the Father has worked effectively in the recent year in making important decisions for the Children.   

Evidence

26.Both the Father and the Mother gave evidence during the trial, and no other factual witnesses were called.

27.The Mother has filed 4 Affidavits in relation to the Children, namely the 1^st, 3^rd, 4^th and 9^th Affidavits.  Her reasons for sole custody are set out mainly in her 1^st and 9^th Affidavits, whilst her 3^rd and 4^th Affidavits are more about the past access. 

28.The Father has filed 5 Affidavits in relation to the Children, namely the 2^nd, 3^rd, 4^th, 5^th and 8^th Affidavit. The Father’s 2^nd and 8^th Affidavits are more focused on the custody issue, whilst the 3^rd, 4^th and 5^th Affidavits are more focused on access and the Father’s previous application for the Psychological Report.

29.Ms Li, the Social Welfare Officer, gave evidence in Court and relied on her Social Investigation Report dated 3 August 2017 (“SIR”) and Updated Social Investigation Report dated 12 June 2018 (“Updated SIR”)  as evidence in chief.

30.Dr. Wong, the Psychologist, gave evidence in Court and relied on her Psychological Report dated 3 October 2018 as evidence in chief.

31.An International Social Investigation Report dated 21 July 2017 (“ISIR”) and an Updated International Social Investigation Report dated 24 May 2018 (“Updated ISIR”) were obtained.  Parties have agreed the ISIR and the Updated ISIR be adduced as evidence for the Court’s consideration, without the need to call the maker of the reports.

The legal principles  

32.In relation to the application for custody order for a child, it is stipulated in section 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, which 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-

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

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

“(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;”

34.In addition, reference is also made to the “welfare checklist”, with some of the items mirror the checklist to be found in the English Children Act 1989. Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdiction, there are a number of factors, which generally speaking need to be taken into account or considered, when determining children matters.  The “welfare checklist” is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to, inter alia, the custody matter and the best interests of children generally.   The checklist includes the following factors :-

(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)     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 are relevant.

35.I will consider those factors that are relevant.  However, I do not intend to go through them point by point.  Instead, I shall make general reference to some of the most relevant ones in my consideration.

36.The leading authority for the issue of joint or sole custody is the Court of Appeal case of PD v KWW (Child: Joint custody) [2014] 4 HKLRD 191.  There are also other cases cited by both parties in the submissions which I have also considered.

Analysis of evidence    

37.Ms Yip had, at the Opening Submissions, helpfully identified a list of issues for the Court’s consideration, as follows :-

“1. With reference to the welfare checklist, is granting the parties Joint Custody in the best interest of the Children? Alternatively, is granting the Petitioner Sole Custody in the best interest of the Children?

2. Should the Court adopt the recommendations made in the Reports on the custody issue?

3. On the facts of this case,

a) Can parties communicate on the Children matters? Is the Petitioner’s complaint about the parties’ failure to communicate genuine or just an exaggeration?

b) Is the Respondent an indifferent father or a caring and devoted father?

c) Are the Petitioner’s other complaints (ie. mediation, failure to agree on hiring another helper, legal costs, etc) relevant? If so, are they genuine or just exaggerations and should they become reasons why the Respondent should not be entitled to joint custody?

d) Should the Children be deprived of the joint custody because of them living in LA and the Respondent living in Hong Kong?

e) Is it in the interest of the Children to have both parents, who are educated yet very different, be involved as custodial parents?

4. How does the law on joint custody apply to the facts of this case?”

38.Ms Yip had further clarified that these are in fact matters for the Court’s consideration, together with the consideration of all other relevant circumstances of the case and the relevant factors in the welfare checklist.

39.I remind myself to regard the best interests of the Children as the first and paramount consideration and in having such regard, I shall give due consideration to (a) the wishes and feelings of the Children (having regard to the age and understanding of the Children, and to the circumstances of the case); and (b) all material information, including all the relevant reports, as listed in paragraphs 25 to 27 above.

40.The wishes of the Children have been ascertained by Ms Li and have been included in paragraph 26 of the SIR, which I have quoted in paragraph 59 below.  I will further consider the wishes of the Children and the relevant reports in subsequent paragraphs.

41.I accept that joint custody should be granted if it is in the best interests of the Children and if it is reasonable anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of the Children.  However, if joint custody is unworkable, a joint custody order should not be made solely for the purpose of encouraging the parties to overcome their differences or to recognise the continuing rule of the parties (Y v P [2009] HKEC 1322).   

42.It is useful at this juncture to quote the relevant paragraphs in the case PD v KWW (Child: Joint Custody) in relation to decisions to be made by a custodial parent :-

“31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.”

43.The implication and discussion of sole custody and joint custody is further discussed in paragraphs 36 to 41, which I find useful to quote :-

“36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion.  This is a misunderstanding.  Neither parent has any pre-emptive right over the other.  If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

     37.     In the same case, Cumming-Bruce LJ, another experienced family judge, said:

“…. it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

     38.     A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing.  While the right to be consulted does not include a power of veto, it is nevertheless a substantial right.  It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered. 

     39.     While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter. 

     40.     Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown o f the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41.     For this reason it is often said that there is a thin line between sole custody and joint custody.”

44.I have reminded myself the legal principles laid down in the case, in particular paragraphs 52 to 57 :-

“52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”

SIR and Updated SIR

45.In relation to the SIR, I accept Ms Li’s observation in paragraph 23 therein that :-

“The present investigation reveals that both the Mother and the Father love the Children very much, yet in different ways. In particular, the Mother has been a full-time mother to offer direct care to the Children. She has dedicated her every minute to plan for the Children, from daily meals to education. She has spent a lot of time in helping Daughter with her studies and look after the health of both Children. The Father has been a playmate to the Children and provided financial stability to the family. There is no doubt that both the Mother and the Father played different roles in the family. Yet, they seemed to perceive the strength of the other party as shortfalls instead of being a compliment to each other.”

46.Ms Li summarised her views in paragraph 26 of the SIR therein and recommended joint custody :-

“26. In considering the Children’s custody, I would like to take into their welfare and views as my paramount concern. Although it is beyond doubt that the Mother has been responsible for making most decisions for the Children relating to their welfare in the past, the fact that the Father is genuine to get involved in the decision making process should also be respected. Over the years, the Father has also demonstrated himself as a concerning and responsible parent. He also states his readiness to foster a peaceful and respectful communication with the Mother for the benefit of the Children. Joint custody is considered to be desirable to let both parents have active involvement in the upbringing of their child and promote their continuing parental responsibilities, which is beneficial to the child’s well-being. Though joint custody requires that both parties have harmonious and effective communication, which at the moment seems yet to be achieved, personal disputes and different perceptions between the parents concerning parenting styles should not hinder the goal of achieving this end or deny either party’s rights or obligations to contribute to the Children’s development or deprive their rights to enjoy the participation of both parents in their major life events and decision-making. Apart from this, both Children clearly express that they want to involve the Father in their major life decisions. While the Son is considered a bit young to understand the issue, the Daughter is considered mature enough to comprehend the issue and give her views rationally. It is believed that respecting the Children’s choice of joint custody would avoid depriving them the right to enjoy the Father’s participation in their major life issues as a father.”

47.In the Updated SIR, which was about 10 months after the SIR, Ms Li recommended joint custody and explained her reasons in paragraph 19 :-

“…… Regarding the custody, the Father is eager to fulfil the parental responsibility by participating in the Children’s major life decision-making. His love and concern towards the Children is beyond doubt in view of this active efforts in keeping contact with them and trying his best to engage them for maintaining the father-children rapport. He also takes the Investigating Officer’s advice to try to achieve direct communication with the Mother and to take co-parenting courses. At the same time, the Mother does not object to joint custody. Based on the above grounds, joint custody, being considered as the best arrangement for the Children’s interests, is recommended.”

48.Ms Li then went on to consider the access issue in the Updated SIR.  Although the Children’s access is not one of the issues for the Court’s determination in this trial, it is worth quoting paragraph 20 therein to have a better understanding of the circumstances of the case and the problems the parties now face, which will be relevant for my consideration in subsequent paragraphs :-

“20. In considering the access issue, sufficient time for interacting with the non-residing parent is of utmost importance to children of separated parents. In the present case, the Children are considered deserving the enjoyment and bondage in playing and interacting with the Father, who is impressed to love the Children genuinely. However, living in different countries between the Father and the Children, the Children’s serious food allergies, the tedious legal proceedings and the unsettled maintenance issue have complicated the matter…… Both the Mother and Daughter also showed deep concern to the diet arrangement during access and the Mother requested the presence of a reliable person on this aspect. Such hindrance on access can actually be removed by reaching a compromised arrangement between the Father and the Mother. All in all, clearance of the above concerns and misunderstandings either through direct communication or mediation is considered vital in enhancing the smooth and feasible execution of access in future.”

49.At the end of the Updated SIR, Ms Li further express her view in paragraph 21 therein that “…… It is hoped that both the Father and the Mother would put aside their mistrust and co-parent through direct communication for the best interests of the Children. Mediation and co-parenting courses are highly recommended for them……”

50.F is of the view that the recommendations in the SIR and the Updated SIR should be adopted, while the M disagrees.  I will further consider the evidence of Ms Li in subsequent paragraphs below.

Psychological Report

51.Dr. Wong, the Psychologist, has prepared a Psychological Report for this case and she has summarised the views of the Father and the Mother in paragraphs 44 and 45 respectively :-

“44. For the long term education benefits of the Children, the Father agrees that the mother be granted sole care and control of the Children in view of the fact that they have settled in their life in LA under the care of their Mother while he would continue to work for his family business in HK and support them financially. As for the major asepcts of the Children, including education and mediacation, he would like to discuss and make jointly decision with the Mother. He values his part as a Father and wishes to continue his role in the Children’s life. Hence, he requests for a joint custody of the Children.

45.     The Mother agrees to continue her sole care and control of the Children as the Children have settled in and adjusted their life well in LA under her full-time care with the support of her parents.  For the custody of Children, she agrees to have joint custody with the Father in theory and she expresses her wish of having direct communications with the Father to work out the issues on child care and co-parenting instead of relying on the attorney to sort out the issues which would in turn create more tension and misunderstanding.  She also agrees on the social worker’s recommendation for seeking professional help on mediation and co-parenting work.”

52.Dr. Wong further summarised her views and expressed her conclusion in paragraphs 46 to 59 therein.

53.Before making her recommendations in paragraphs 60 to 64, Dr. Wong she has identified the problems faced by the Children at the moment, but she is of the view that “Judging from the behaviour of the Children, it is hard to conclude that they are the typical alienated child……” (paragraph 50 of the Psychological Report).  She has also expressed her view in paragraph 59 that :-

“59…… Currently, there are indications that the parents are trying to engage each other to discuss on the issues of Children in spite of some discrepancies in points of views. It is essential for parents to be aware of the on-going family dynamics and the plausible impacts on the Children’s long term development if the situation is fuelled or allowed to endure without intervention.”

54.Dr. Wong has recommended joint custody and she had explained the reasons in paragraphs 60 to 64 :-

“ 60. In order to allow the Children to be embraced by the love and protection of both parents and develop their full potentials of psychosocial functioning, the following recommendations are made:

61. The parents to work with mental health professionals and understand clearly the current family dynamics and their impacts on Children’s development; what they need to commit in resolving their own issues, like enhancing their communications and co-parenting skills and avoid entangling the Children in their own issues.

62. The Children should be helped by mental health professional to address their unrealistic and irrational thoughts attributing to their ambivalence and refusal toward the Father’s access. They should be helped to develop new coping skills, including perspectives taking, accommodation of different views and active problem solving in face of the current situation in the family. Their needs and rights to express and receive the love of both parents should also be addressed and justified.

63. With the help of co-parenting professionals, the Mother and Father could discuss and work out the access arrangement, including the appointing of a mutually agreed caretaker, on how to facilitate the access of the Father with the aim to expand the duration gradually to the point of staying access. While the access time of the Father should be free of intervention of the Mother, it is essential for the Mother to provide her support in the beginning like packing the necessities for the Children to bring along to the Father’s place; training the designated caretaker to take care of the medical and day to day needs of the Children; giving reassurance to the Children and promoting their trust on the Father’s care. For the Father, his communication skills and understanding of the Children’s emotion and needs could be further enhanced.

64. While the custody of the Children be granted to both parents and the care and control to the Mother is supported in the present evaluation, continue monitoring of the family dynamics and the Children’s responses toward access, as well as ensuring the Mother is providing adequate support for the Children for the access are necessary.” 

55.When giving evidence in Court, Dr. Wong accepted that at the time when she interviewed the parties, communication between the parties was clearly inadequate.  She further accepted that she made her recommendations in the hope that the parties would be able to work together to resolve the existing disagreement going forward.  She said that based on the information she had when preparing for the report, there was a possibility for co-operation between the parties and she recommended them to seek professional help to resolve the issues between them and she recommended joint custody.

56.When the psychologist was told about the existing unresolved problems between the parties despite her recommendations, and she was asked whether she still recommended joint custody, her response was her recommendation was confined to that specific period of time, as she was not privy of the new information put to her, she was not in a position to make a new recommendation as to whether joint custody should be granted.  I agree that this is a fair comment by Dr. Wong.  The Court will then have to consider, in view of all circumstances of the case, whether joint custody is in the best interests of the Children.

57.Regarding the evidence of Ms Li, the Social Welfare Officer, when giving evidence, she maintained her position of recommending joint custody.

58.Ms Rattigan asks the Court to attach little weight to her recommendation.  Ms Li agreed in paragraph 26 of her SIR that “joint custody requires that both parties have harmonious and effective communication”.  However, when it was put to Ms Li that effective communication has not been achieved 2 years down the line since she first took up the case, which Ms Li agreed, she explained that effective communication is not a prerequisite.  Ms Rattigan is of the view that effective communication between the parties must be a pre-requisite. 

59.Ms Rattigan further commented that as Ms Li had not brought herself up to the date with the parties’ latest Affidavits and what has occurred in the year since she has filed her Updated SIR, she could not be in the best position to make recommendations as to the appropriate orders now.

60.Ms Yip asks the Court to give full weight to Ms. Li’s recommendation of joint custody, mainly for the following reasons :-

(a)     Ms Li is of the view that harmonious and effective communication is not a pre-requisite, but merely something both parties need to do in the future.  She believes that joint custody is appropriate even on the hypothetical scenario that parties cannot communicate well.

(b)     As to the means of communication, whilst direct communication is ideal, parties can also communicate through other means such as solicitors or parenting coordinators to achieve such harmonious and effective communication.  It was submitted that the standard had been met by the parties. 

(c)     Ms Li insisted that she would recommend joint custody no matter whether the Mother agrees or not.  She reiterates that the Children are entitled to enjoy both parents’ involvement in bog decisions and their affections.  The Father loves and cares about his Children.  It is in the best for the Children to have parents’ participation in their upbringing as much as possible.

(d)     Even if the Mother suggested the Children can enjoy the Father’s involvement if there is sole custody, there is a difference symbolically.  If sole custody is granted, the level of involvement of the Father would be less in comparison to joint custody.

(e)     With reference to the view that “direct communication or mediation is considered vital” as stated in paragraph 20 of the Updated SIR, Ms Li repeats her stance that such communication is not a pre-requisite for joint custody, and such statement was referring to the execution of access only.

(f)     When it was put to Ms Li that parties should not be granted joint custody, as it is the Mother’s case that the parties had not mediated, appointed a helper, access was not good etc, Ms Li fairly said that she was not in a position to comment as she did not have the relevant information.

(g)     At the end of her evidence, when Ms Li was asked at the time when she made the recommendation of joint custody in the reports, whether she had envisaged that by the time of the trial, the parties had yet to achieve the situation of effective communication, she said she envisaged that the ideal situation of effective communication would not be achieved yet.  She further said she believed it is a life long process for parents to keep learning to achieve this standard of communication, and there is no objection yardstick for measurement. 

(h)     Ms Li further said with a positive note that there are many years ahead, until the Children reach 18 years old and they still have years to try out to achieve effective communication.

61.While the social welfare officers are considered as “eyes and ears” of the Court, I have reminded myself that the recommendations made in the reports although not binding are generally considered to be persuasive.  I have found all the reports useful and have considered them fully when coming to a final decision.

62.Both Ms Li and Dr. Wong had acknowledged that there are matters and new information about the communication problems as suggested by the Mother, which they were told when giving evidence in Court and had no chance to investigate about. These matters are relevant for my consideration and may have an impact on my ruling of joint or sole custody.  Before deciding whether or not to adopt the recommendations in the SIRs, I will consider these matters, all relevant circumstances of this case and the welfare checklist, as guided by the legal principles before reaching the conclusion.

63.Before evaluating the evidence further, I have to point out that there are the following common grounds and aspects identified by both Ms Li and Dr. Wong, which are not disputed by the parties :-

(a)     Both the Father and the Mother are well educated and of good background.

(b)     Both the Father and the Mother have different strengths and weaknesses.  Both Ms Li and Dr. Wong have viewed both the Father and the Mother as responsible parents who love their Children and are concerned about the Children’s welfare.

(c)     The Father has expressed his readiness and willingness to be engaged in the Children’s life. 

(d)     The wishes of the Children as summarised in the reports, as well as the Children’s physical, emotional and educational needs.

(e)     There were some communication problems faced by the parties since the marriage and at the time when the parties were interviewed by Ms Li and Dr. Wong.  There is also the lack of trust between the parties.  

(f)     The Mother had expressed her agreement to joint custody to both Ms Li and Dr. Wong, but at the same time, the Mother has also expressed her concern of the communication and co-operation problems with the Father. 

(g)     The Mother is taking care of the Children well in LA, which the Father has agreed and acknowledged. 

(h)     It is important for the Father and in the interest of the Children to have access with the Children.

(i)     In view of the difficulties and problems in communication between the parties, it is important to communicate with each other.  Ms Li and Dr. Wong has slightly different suggestions, but both agree steps could be done to improve the situation the parties were then facing at the time when they prepare for their reports.  Recommendations were then made by Ms Li and Dr. Wong.

64.From the evidence, cross-examination and submissions of the parties, I notice that the following are not disputed :-

(a)     The Daughter has been diagnosed with ADHD since she was in Hong Kong.  Her condition is improving, but attention and monitoring of the Daughter’s condition is desirable.

(b)     The diet of the Children has to be handled with care, given their food allergy conditions (with details referred to in paragraphs 6 and 7 above)

(c)     Since the Mother, together with Children, has moved to live in LA since about July 2016, the Father has been living and working in Hong Kong.  Physical access has been done by the Father flying to LA to meet the Children, and with the Children flying back to Hong Kong during some long holidays, which are limited.  Apart from physical access, there has been telephone access.  There has been very limited physical access, let alone staying access.  During the past one year, there were a total of 3 access with the Father seeing the Children, one meeting both Children at a doctor’s clinic, one meeting the Daughter at ballet dance session and one meeting the Son at school.

(d)     As at the date of the trial, no mediation has been conducted yet.

(e)     As at the date of the trial, there is co-parenting therapy attended by the parties on 2 consecutive days, but not co-parenting course.  

(f)     As at the date of the trial, there is no mutually agreed helper to assist with access of the Children.  

65.Some of the special needs of the Children have been summarised by Ms Li in paragraph 6 of the SIR about the childcare history of the Children :-

“As a full-time mother, the Mother has all along been the main caregiver to the Children. Under the assistance of a local nanny, 2 Filipino domestic helpers and a driver, the Mother had provided direct physical care to the Children as well as educational support and attending parents’ events in the school, etc. Her parents came to Hong Kong to help look after the Children whenever the local nanny was on vacation…… As both Children have allergies to numerous common food, including certain fruits and vegetables as well as almost all dairy products, which may lead to consequences from skin itchiness to fatality, the Mother has to be extremely cautious in performing food test and preparing daily menus for the Children, with the assistance from the local nanny. She even needs to bake a piece of cake with non-allergic ingredients for them to bring to their friend’s birthday parties as they cannot eat conventional cakes. She also needs to bring cooking utensils to prepare food for the Children in the hotels during trips. Currently, the Mother is still the main caregiver to the Children in USA, with the assistance of her parents, the local nanny and a day-time helper. The Father mainly played, drew and read with the Children and escorted them for interest classes during the weekends.”

66.It is in this factual scenario that I apply the legal principles and to consider all the relevant circumstances and the relevant factors of the welfare checklist to make a ruling.  It is the Mother’s case that since the SIR, Updated SIR and the Psychological Report until trial, there is hardly any improvement in the communication between the parties.  The Mother is of the view that it is clear that she cannot communicate effectively with the Father and joint custody is not workable in the best interests of the Children.  The Father disagrees, and he is of the view that even if there are communication problems, the situation is improving.  The problems or difficulties as alleged are exaggeration by the Mother trying to exclude the Father.

Whether it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of the Children

67.In order to apply the legal principles to the facts of this case and to consider whether it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of the Children, I will consider the main areas of problems as identified by the Mother and to consider whether they are genuine or exaggeration.  The main areas of problems of communication include :-

(a)     Schooling for the Daughter

(b)     Whether to register a course for the Daughter

(c)     Whether to apply eye drops for the Daughter

(d)     Access arrangement, in particular, about the appointment of a new helper

(e)     No arrangement of mediation

Schooling for the Daughter

68.The Daughter had been studying at School C, which is an elementary school in LA.  The disagreement between the parties concerns the wish of both the Daughter and the Mother that the Daughter changes to study at another school, which is a private school (“School W”), as soon as possible, even in the middle of a school year, which the Father disagreed.  The Mother said it would be beneficial for the Daughter to change to School W, as there are deficiencies in the academic standard at School C.  According to the Wife’s evidence, the Daughter has no science class and no instrument class in School C, but in School W, there is science class every other day and instrument class every other day.  At School C, Art lesson is once month, while music lesson is twice a week, while in School W, Art lesson is every day, and music and choir lessons are every other day.  The Mother is of the view that given the Daughter’s age and her condition of ADHD which she could get bored easily, it is important to move to a school with a curriculum more suitable to her as soon as possible.

69.The Mother is of the belief that much of the Father’s resistance to private school for the daughter is the cost, in view of the Father’s explanation in his Affidavit and the fact that he has not paid her any increased amount of maintenance to cover the School W school fees which are much higher than School C.  The Father denied, and Ms Yip submitted that given the amount the Father had paid to the Mother, it is unfair for the Mother to say that the Father has not paid for the increased school fees. 

70.The Daughter eventually changed from School C to School W in August 2018.

71.It is the Father’s case that from the evidence which shows numerous communication between the Father and the Mother, the schooling issue is clearly one of the examples showing that he can communicate effectively with the Mother. Alternatively, the communication shows that the Mother has been acting unreasonably. Taking a few examples as submitted by the Father, :-

(a)     In re-examination, there was clear evidence that the Father tried to contribute to the School W issues by researching on the article of the ISEE exam and provided the same to the Mother.

(b)     In cross-examination, when the Father was criticised of his initial opposition to the Daughter’s transfer to a private school, the Father explained that he wished to give time for the Daughter to get used to the American school system first, before considering any further transfer, as she has just moved from Hong Kong to USA.

(c)     The Father is of the view that the Mother is trying to establish that the Father was unreasonable on the application and transfer to School W, the Father explained that his stance was due to his concern about the difficulties and issues the Daughter might face if she is to make an application and transfer to a new school in the middle of a school year.  The Father explained that his stance was never that he opposed to transfer to School W, the only difference between the Father and the Mother was the timing of the application and the Father suggested the Daughter to apply to more schools in one go.

(d)     The Father is of the view that the Mother is trying to establish that the Father did not communicate with the Mother on the changing to School W issue, but instead, the Father only communicated with the Daughter.  Under re-examination, the Father was referred to some correspondence, which clearly showed that the Mother and the Father discussed about schooling at a lunch in Hong Kong, and it was the Mother’s invitation to have the Father directly communicate with the Daughter on the matter as well.  It is also shown in another page of document with an e-mail from the Father to the Daughter on school, such e-mail was cc/copied to the Mother for her reference.

72.The Mother disagreed.  She is of the view that from the evidence and despite the voluminous documents showing communication by way of solicitors’ correspondence, e-mail and messages between the parties, on a closer look, it actually shows and supports the case that there is ineffective communication between the parties.  To name a few examples as submitted by the Mother,

(a)     The evidence show that the Father was initially against any move to private school and he wanted the Daughter to stay at School C.  While the Mother was suggesting a change of school for the Daughter’s best interests, the Father referred to the Mother’s wanting to look at alternative schools for the Daughter as being a “dogged persistence in getting what she wants”, and the Father was also very critical of the Mother wanting the Daughter to move to a school with a more challenging curriculum by claiming that it is the Mother’s “desire of training her Children to win at the starting line”.  The Mother was disappointed at the failure of the Father to see the need of the Daughter given her ADHD, with her intelligence and propensity to become easily bored and a more challenging curriculum is beneficial to her, despite the explanation from the Mother.

(b)     When the Mother also related the Daughter’s complaints about the state of the bathrooms and cafeteria at School C, the Father, instead of focusing on the academic aspects of the schools, focussed on the complaints about the bathrooms and cafeteria, asking the Mother to take photos for him. 

(c)     On 1 May 2018, when the Mother sent an e-mail to the Father saying that School W had got in contact with her to say that they could make a late application for the Daughter if they wanted to do so, she told the Father that the Daughter was very happy to hear the news.  The Mother ended her e-mail with “What are your thoughts to this”.

(d)     However, instead of responding to the Mother to discuss the matter with her directly, the Father contacted the Daughter by e-mail on 3 May 2018, saying that he wanted to talk to her.  They did so over the telephone on 5 May 2018, but the Mother was not invited by the Father to take part in the call.  The Father then sent an e-mail to the Daughter on 7 May 2018 to recap their telephone conversation.  Essentially, the Father said that it is better not to apply to School W at that time.  He also copied the e-mail to the Mother on the same date (which is the e-mail the Father referred to and explained in paragraph 74 above, showing having communicated with the Mother).

(e)     The Mother agreed that she had encouraged the Father to speak to the Daughter direct.  However, in the discussion of schooling matters, it is necessary that the parties discussed and co-operated.  What actually happened was there was no discussion with the Mother, no response was made directly to her and there was no attempt at dialogue in response to the Mother’s invitation to talk to her, not even an invitation for her to join his discussion with the Daughter over the telephone. 

(f)     When the Father was cross-examined about this, he explained that as the Daughter and the Mother was very close, the Daughter would relay what he said to her to the Mother.  Ms Rattigan submitted that it is clearly inappropriate and not in the interest of the Daughter for a parent to rely on his 9-year-old daughter to act as a “messenger” in conveying his thoughts on something as important as schooling back to the Mother.  The Father speaking to and discussing with the Daughter in the absence of the Mother is acceptable and entirely appropriate, but not relying in the Daughter to fill in the gap of the lack of communication between the parties.

(g)     The Mother further explained that after being copied by the Father on his e-mail to the Daughter, the Mother responded directly to the Father on 9 May 2018, asking for direct communication via phone.  The Mother also reassured the Father that it is alright if the Father wants to talk to the Daughter privately first, but there may be things that it is more appropriate to be discussed between the parties.  The Mother also stated that she would be starting the late application process if the Father did not object to moving forward.

(h)     The Father finally responded directly to the Mother stating that his stance was not to apply for a late application to School W, that they should wait to make an application in 2019, which would mean that the Daughter would not start until the following year.  Again, the Father was simply expressing his disagreement, but there was no attempt to discuss this with the Mother, no offer to speak to her directly or to listen to her views.

(i)     Given the deadline for the application was approaching and the fact that the Mother had tried to communicate directly with the Father but he had not engaged in any dialogue of discussion with her, the Mother instructed her lawyers to send a letter to the Father pointing out that there would be no harm in making the application and saying that she would be proceeding with the application, which was met with a letter in response from the Father’s lawyers criticising the Mother’s decision to make the application as being “obstinate and unilateral”. In the letter, the Father said he will continue to communicate directly with the Mother and the Daughter on “the ongoing discussion of the matter”. But that had hardly been any discussion on the matter with the Mother direct.

(j)     Eventually on 14 May 2018, the Father finally sent a more detailed e-mail to the Mother, which sets out why he does not believe the application should be made for the Daughter, including that he does not believe that it will be a good thing for her to start in the middle of the school year and have to catch up.  The e-mail ended by saying that he was sorry that the Mother has held different views but he was “standing by my opinion on this”.  He talked about apply later and he mentioned other school that they can also look at and apply to.

(k)     The Mother responded on 17 May 2018, explaining why there is no harm in applying early and that it is in fact a good thing to do.  If the Daughter does not get in then they can just apply again the following year, but if there is a chance that she might they should take it.  The Mother explains that it will in fact be a good thing for the Daughter to join a year earlier as she will have more of an opportunity to catch up.

(l)     The Father’s final e-mail on the matter in response on 20 May 2018 includes 2 short paragraphs to the issue about School W.  He states in the 1^st paragraph that “From your e-mail I now understand that the reason of your making a late application for School W for 2018/2019 for the Daughter is that you want her to learn her lesson the hard way because after the discussion of the detailed pros and cons you had with her, she still insisted on going ahead with what she wants”.

(m)     The Mother explained in her evidence that it is not clear what the Father meant at all.  She was not really sure on the basis of the e-mail whether the Father have ever agreed with School W.  She was asked under cross-examination if the Father agreed with her making the late application to School W, the Mother’s response was “I really don’t’ know, I don’t understand from his e-mail, he said now I understand that you want her to learn the hard way, The Daughter told me Daddy was ok with it, but with him sometimes it’s like yes maybe, sometimes other schools… He usually cannot give me yes or no.”

(n)     In the end, the Mother simply made the application and the Daughter was accepted.  She started studying at School W in August 2018.

73.I have to point out that it is unfair to the Father to say that, as the Daughter eventually turned out to be happily studying in School W, at a hindsight, the Father should have co-operated and agreed to Mother’s suggestion to transfer to School W. 

74.With this issue of schooling and changing to School W, I focus on how the parties communicated.  With the evidence before me, I accept that there is communication and discussion between the parties, but at the same time, I am also concerned that the evidence shows there is hardly any direct communication between the parties, despite the Mother repeatedly asking and inviting.  While discussing directly with the Daughter had been agreed by the Mother and should be encouraged, communication and discussion with the Mother, instead of relying on the Daughter to relay the Father’s view to the Mother, is equally important, if not more appropriate, in the interest of the Daughter.

75.With a closer look at the evidence and correspondence between the parties, I am of the view that the problem as explained by the Mother for this issue is not something exaggerated. 

Whether to register a course for the Daughter (“Course”)

76.The Mother wanted the Daughter to attend a Course, which is a 15 week course to help with confidence and social skills, which the Mother believes that it will be of benefit to the Daughter, particularly because of her ADHD condition.  The Mother brought this up with the Father, but he did not agree as he believed, having spoken to one of the teachers, that the Daughter would be attending the class with children with serious emotional issues.  This was not the Mother’s understanding but in order to clarify this she spoke directly with Dr. N, who is in charge of the programme, who assured the Mother that this would not be the case.  The Mother therefore e-mailed the Father on 2 September 2018.

77.As the Father was in USA at that time, the Mother invited him to go to the institute along with her to speak to the staff to iron out any queries.  She further suggested that the Father could also ask Dr. L, the expert in Hong Kong who had diagnosed the Daughter’s ADHD, with her opinion of the Course.  With the Mother’s frustration, the Father did neither to inquire if the Course would be beneficial to the Daughter, but still refused to allow the Daughter to do the Course.

78.It is the Father’s case that based on the Psychological Report and the Daughter’s social experience at School C, the Father believed the Daughter did not need to enrol for the Course.  The Father also believes that School W has services in place that could help the Daughter if she has any problems at school, which the Mother agrees to employ in case the Daughter faces any problem in her cross-examination.

79.The Father further submitted that as the Daughter has been doing fine at School W both academically and socially, it shows that the Father was not incorrect and his stance did not harm the Daughter. 

80.I have to point out that there is no hard and fast rule whether a course of this kind is beneficial to the Daughter and this is not an issue for the Court’s determination.  What I am more concerned about is how parties communicate when there are differences in views, and how they co-operate and try to work things out. 

81.With the evidence before me, the Mother has shown that she did try to communicate with the Father, and when there are differences in views, she did give reasons to convince the Father and find ways to convince the Father, including inviting the Father to go to the institute to ask and see for himself, which is a very positive attitude. 

82.I accept that the Father is entitled to share a different view and express his stance.  However, it is how he handled disagreements and differences in view that has caused my concern.  Under cross-examination, when the Father was asked why he did not take up the Mother’s invitation to go to the institute with her to iron out any queries, his response was “at the time, I think even if I had gone to make enquiries the people there would have told me more or less the same thing”.  Ms Rattigan suggested that perhaps the real reason the Father would not go to the institute is that he does not want to hear that what the Mother has been told about the Course is correct, which is different from his views and understanding.  Whatever the Father’s reason is for refusing to go with the Mother to the institute to learn more about the Course, it has a bearing on how co-coperating the Father was and how he reacted.  Is he acting rationally and making an informed decision? Or is he disagreeing a different view and insisting on his own view, without exploring ways to communicate, to understand more and to explore ways to convince the Mother in order to reach agreement? 

83.Under cross-examination, the Father was asked why he had refused to consult Dr. L as the Mother requested.  His reason was “I believe that Dr. L provided me with some reports, in these no major or serious problems required concern for the Daughter.”  Ms Rattigan submitted that this is another example showing that the Father is unwilling to co-operate with the Mother.

84.The evidence suggests that the Father is of the view that there is nothing wrong with the Daughter and she does not need to attend the Course, and therefore he just did not bother to go to the institute or ask for the opinion of Dr. N or Dr. L.  However, this is exactly where I have to be very careful to consider when the parties’ views are different, how they react and behave. 

85.This issue has been brought up in one of the two co-parenting therapy sessions that the parties had on 2^nd and 3^rd January 2019.  Ms Rattigan submitted that what the Mother would prefer is to enrol the Daughter to the Course to give her the tools to help her to avoid problems in the future, while the Father would rather do nothing now but if a problem does arise in the future, they can then consider options of dealing with it, with the assistance provided by the school. 

86.I have to say, there is no absolute right or wrong in the views of the parties in this matter.  I have reminded myself not to focus on the problems and the difference in views between the parties, as difference in views can also inspire thoughts and be beneficial to the Children.  Instead, I focus on how parties communicate when there are differences in views.  

87.During cross-examination, the Father was shown the latest report of the Daughter from School W, while it shows overall that the Daughter is doing well, there are some areas in which she is weak, which the Mother says that those are related to the Daughter’s ADHD and those are the types of things that the Course can help her with.  When the Father was asked if he agreed that the Course can help the Daughter with those areas, his response was “I cannot say I am sure about that”.  When it was put to the Father that he could not say he was sure because he had not discussed things with the institute or with Dr. L as the Mother had suggested, the Father agreed.

88.I am of the view that there is a difference between (a) not agreeing after inquiry and discussion; and (b) not agreeing, insisting on own view, but not obtaining more information for further consideration and discussion of the matter in the hope of reaching agreement.  With the evidence before me, it seems that the Father falls in the latter category.  

Medical issues for the Daughter  

89.According to the Mother, this is one of the most serious areas of a failure to communicate and corporate effectively in the interests of the Children.

90.The Daughter was diagnosed with myopia by Dr. Y in Hong Kong before she moved to live in USA.  Since moving to USA, she has been treated by ophthalmologist Dr. F in USA.  It is the Father’s oral evidence that he approved of Dr. F and Dr. L.

91.It is the Mother’s evidence that when she took the Daughter to see Dr. F in September 2018, he prescribed a special eye drop for the Daughter with the intention of stabilising her myopia condition and preventing it from worsening.  Dr. F explained that putting in preventive measures is the new way to help children with myopia instead of just prescribing glasses when their myopia worsens. However, the eye drop was not approved by the FDA and chances are it never will be because it is a very cheap eye drop that no pharmaceutical finds profitable in making, but it is safe to use and he has been prescribing his eye drops for some time to other parents as well.

92.The Mother wanted to go ahead and use the eye drops as recommended, but the Father did not.  The Father said he had spoken to his 16^th Uncle, a retired paediatrician, whom he said did not recommend using eye drops that were not FDA approved.

93.Knowing the differences between them, the Mother suggested the Father to seek second opinion, so that they can discuss the matter further.  On the last trip when the Mother and the Daughter was in Hong Kong, which was almost a year since she had seen Dr. F, the Mother was hoping that the Father would attend and the Mother had informed the Father of the appointment.  The Father did not go and his response was “I do not see the point in bringing the Children for check up with Dr. C, Dr. L and Dr. Y as the Children are no longer their patients…… you have received Dr. F’s reminder about the Daughter’s upcoming follow up.”

94.The Mother nevertheless took the Daughter to see Dr. Y in Hong Kong, and he found that her myopia had worsened significantly.  Like Dr. F in USA, Dr. Y recommended the using of the same eye drops that Dr. F in USA had prescribed. He told the Mother that the eye drops are very safe to use, that it has been in use in Asia and that reports support the fact that the drops will slow the Myopia situation.

95.The Father did not agree the Daughter using the eye drops, and his response was that they should “re-visit” whether the daughter uses the eye drops.  He also asked the Mother a series of questions about the eye drops.

96.Under cross-examination, when the Father was asked whether he is now going to agree the Daughter using the eye drops, his answer was “I haven’t agreed yet…… I want to have a further discussion when I see Dr. F personally, to get an appointment with the Mother and the Daughter, learn about it before a decision is made.”

97.When the Father was further asked why he had not done so over the last year, his answer was “I don’t live in the USA so I was not clear as to the daily situation of the daughter such as did she wear the glasses she was given all the time, or was she doing anything that would cause problem to her eyes.  To understand the situation with her eyes I consider it better if we see Dr. F after one year time frame range is required.”

98.Ms Yip submitted that the use of the eye drops is a typical example of the Mother’s failure to show irrational accord or undermining of interest.  She further submitted that it is easy enough to understand that there is no conclusive evidence to support that the use of eye drops will reduce myopia, nor for that matter, the non-application of the eye drops will necessarily increase myopia. It is the Father’s stance that he keeps an open mind on the matter and will discuss with the eye doctor in August to see if there is any safer alternative before he decides if the eye drops are to be used, which Ms Yip submitted that the Father’s stance is reasonable.

99.I can see the strength of Ms Yip’s submissions.  I have to point out that whether the Daughter should be allowed to use the eye drops is not an issue for the Court’s determination in this trial.  There is no medical evidence before me for the determination of the issue either.  I can fully understand the Father’s stance of disapproving the use of the eye drops as they are not with FDA approval.  At the same time, it is also understandable that the Mother, having consulted the doctors, accepted the doctors’ advice and wish the Daughter can start using the eye drops to slow the myopia situation from worsening.

100.Again, I am more concerned about how the parties reacted and behaved when there are differences.  Ms Rattigan submitted that the Father’s response, as quoted in paragraph 108 above, is worrying.  His response shows that the Father clearly does not communicate with the Mother about what is happening in the daily lives of the Children, nor has he made any enquiry as to the same.  If he had wanted to know about the Daughter wearing her glasses, he could have asked the Mother, but clearly he has not, as they do not communicate on this level.  Ms Rattigan further pointed out that the Father has also visited USA several times in the past year but has not made the effort to go to make an appointment to see Dr. F to talk about the eye drops.

101.If the Father would like to know more about the eye drops prescribed by Dr. F, which is not with FDA approval, and know more about other alternative eye drops, he could have done so either getting second opinion from other doctors, or make a proper appointment with Dr. F.  The Mother explained in her evidence that they do not actually even have an appointment with Dr. F yet, as she is waiting to hear when the Father will be in USA.

102.With the evidence before me, I am of the view that the parties have not communicated effectively and the Mother’s complaints are not exaggerated.

Access arrangement and mediation

103.I will consider about these 2 areas of communication problems as alleged by the Mother together.  It is submitted by the Father that these areas are not relevant. Even if they are, they are not genuine problems, but are just exaggeration by the Mother in fighting for sole custody.

104.I am of the view that despite these 2 areas are not issues for the Court’s determination in this trial, they are relevant for my consideration as to whether the Mother’s complaints are genuine and for my consideration of the communication between the parties before concluding whether the parties can be reasonably anticipated to be able to agree on important matters of the Children.

105.In relation to access arrangements, Ms Rattigan submitted that it is most unfortunate that the Father is still not having any meaningful access with the Children and much of this stems from his mistrust of the Mother and the failure to communicate properly with the Mother.

106.During cross-examination, when it was put to the Father that he had failed to inform the Mother about his plans for access with the Children, he disagreed, but he accepted that he preferred to communicate with the Children first.  When he was asked further if he would then expect the Children to relay the plans to the Mother, his answer was “Yes, on one hand yes, but I thought there would be a chance to supplement the matter further”.  Ms Rattigan further submitted that there was hardly any direct discussion and communication between the parties.   

107.Another example submitted by Ms Rattigan is that the Father has not been able to have any meaningful access with the Children as he would no longer go into the Mother’s home to see the Children, and the Children do not want to go out with him.  The Mother had suggested ways to overcome this hurdle, ie. by her going out with them to start with to a park or for dinner, but the Father would not accept that, as he saw it, not as the Mother trying to help, but as the Mother interfering. 

108.According to the Father, it is the Mother who has caused the access problems and making it difficult for the Father.

109.In relation to the access problems, both Ms Li and Dr. Wong had recommended the appointment of a helper to assist and to facilitate access, so that the Mother does not need to accompany the Father and Children during access, and there would be someone to help the Father to attend to help preparing for food and meals, applying cream to the Daughter’s skin and taking care of the Children during access.  The Father accepts the views of Ms Li and Dr. Wong, and he accepts that he does need help for access with the Children at the moment. 

110.It is not in dispute that, given the food allergy conditions of the Children and the need to have special attention to their meals (together with the fact that access had not been too well), a carer or helper to assist with access is necessary at the moment.  The Father is aware of the situation and had provided an undertaking that he shall arrange a relative (“O”), who is a cousin of the Father, aged about 70, being a retired psychologist in good health, to assist him in taking care of the Children during access (details of the undertaking provided by the Father referred to in paragraph 18 above).

111.However, the parties have different views over this issue and as at today, parties cannot agree on the helper to be used in order to facilitate access.

112.The Father’s proposal was that his cousin can help along with one of the Mother’s part time cooks.

113.The Mother is of the view that the Father’s proposal is inappropriate and not workable for a number of reasons :-

(a)     The Mother does not accept that O is an appropriate carer.  She is 70 years old, has not had children herself, has no experience in looking after children and does not have the energy to run around after two active young Children.  O had a heat stroke in LA last time, which ended up in access had to be cancelled and the Father needed to look after her.

(b)     More importantly, O herself had made it clear to Ms Li, the Social Welfare Officer, that she “defined her role as a mentor, advisor and counsellor to the Father instead of a replacement nanny during his access to the Children in August and December 2017”.

(c)     The Mother is of the view that neither of the Mother’s part time cooks are suitable to act as a nanny, as they assist the Mother with cooking at her directions only.  They are not capable for caring for the Children, as they do not even speak English properly, with one of them being illiterate.

114.It is the Mother’s case that she had, at the outset in January 2017, originally proposed to the Father that he should employ their previous helper or their previous nanny to assist him on access visits.  The Mother is of the view that this original proposal made sense, as the Children would have someone that they know, there would be someone who knows how to look after the Children and their needs, and there would be a seamless transition to going from the Mother to being with the Father for access.  

115.The Father, however, viewed the Mother’s proposals as “a repeat of [the Mother]’s manipulation and micromanagement, which she has been practising for years on me and the Children”.  He also viewed the Mother’s proposal as having an ulterior motive because he believed that she wanted to get their previous helper to USA to work for her.

116.The Father disagreed to the Mother’s proposal and therefore the Mother’s latest proposals for the appointment of a nanny or a helper is set out in her 9^th Affidavit.  The Mother essentially proposes that she will hire someone on a full time basis and she is happy for the Father to be part of the interview process.  The Mother will then train this person to care for all of the Children’s needs and he/she can move between her household and wherever the Father is staying for access to care for the Children.  This person can also travel with the Father on future access visits. 

117.The Father is of the view that the candidate of the nanny or helper the Mother intends to get is too perfect, and if there is such a candidate, it will be very expensive.

118.Ms Yip submitted that the fact that the parties cannot reach an agreement on the engagement of a helper does not begin to affect the Children’s welfare.  It is one of those matters which, mainly by virtue of the Father’s willingness to co-operate, will be sorted out eventually.  The Father has opted to adopt a very sensible approach to try out the “trio” first, that is the Father, his cousin O and a part-time cook of the Mother, and if it does not work, he will seriously consider the mother’s option. 

119.I have also considered Ms Yip’s submissions drawing my attention to how touching the Father’s evidence is as he said “the Mother’s option is very expensive, the candidate is hard to come by and he does not think it is necessarily the best option.  But he really loves his Children and if it means it would facilitate the Children, he is willing to stint on himself to make the money available for such an expensive candidate.”

120.There is no hard and fast rule as to who should be the best nanny or helper to facilitate access, be it the previous helper, the previous nanny, the “trio” suggested by the Father with his cousin O helping or a new candidate to employ.  But it remains the fact that a helper / nanny to facilitate access had not been agreed or engaged, which resulted in or at least partly contributed to access not satisfactory for at least the past one year.  Under cross-examination, it is the Husband’s stance that he still has to “discuss in detail with the Mother about the duty of this helper”. 

121.Ms Rattigan submitted that it is sadly very apparent that the Father’s resistance to the Mother’s proposal comes down to the fact that he does not want to have to pay for such a person, as he will only have the benefit of using that person a few times a year.  Considering the Father had spent huge amounts in legal costs, it is really quite irrational for the Father not agreeing to the hiring of the helper or nanny, so that access of the Children could be facilitated.

122.I have considered the evidence and submissions carefully.  With the unsatisfactory access in the past at least one year and with the need to have a helper or nanny to facilitate with access, the fact that parties are unable to communicate effectively to co-operate in hiring a nanny / helper over the last year, even though it means something as important as the Father’s access of the Children be affected, I am of the view that the Mother’s worries and complaints about communication problems are justified.

123.It may not necessarily be compromising to the way the Mother wanted.  It could be exploring ways and proposals that are acceptable to both parties and may be trying out some proposals, getting started so that access could be facilitated as soon as practicable. 

124.I have to point out that the access should not be a major concern, as parties have already agreed the Father having half of the long holidays in a year.  It is how the detailed arrangements to be worked out that affects whether access could actually be done as ordered by the Court.

125.But the fact that there is no meaningful physical access is worrying.  With the consideration of evidence, I am of the view that the inability to agree on the new helper or nanny to assist with access, and also the absence of mediation conducted having a bearing of how ineffective parties’ communication has been and the inability to co-operate, which are matters that are intertwined. 

126.In relation to mediation, as at the date of the trial, no mediation had been conducted yet, despite it is something highly recommended by the Ms Li, the Social Welfare Officer.  Both the Mother and the Father had explained the reasons why, including :-

(a)     Mediation was first proposed by the Mother after the First Appointment Hearing in February 2017, but according to the Mother, it took the Father 10 months and several rounds of solicitors’ correspondence to agree to her requests to mediate.  The Mother agreed to the Father’s proposed mediator rather than delaying the matter by insisting on having her choice of mediator.

(b)     The Mother was unable to attend the first proposed mediation dates in January 2018, because it clashed with her having to help the Daughter with school matters and she proposed dates in early March when she could come to Hong Kong with the Children.  Subsequently, because of the appointment of the clinical psychologist, the Mother had to return to Hong Kong with the Children in July 2018 to be interviewed by the psychologist so she used the opportunity to once again propose mediation.  Unfortunately, because of the busy schedule of the Father, no mediation has been arranged.

(c)     The Father explained that he encountered difficulties as the Mother insisted there must be direct contact, rather than “the shuttle mode” (being the mediator going back and forth between the parties during the mediation) preferred by the Father. 

(d)     The Father is of the view that as the Mother insisted to have the Children included in the mediation, which was not accepted by the mediator, no mediation had been arranged.  This is contested by the Mother.  She explained that her lawyers made a general inquiry as to whether the mediator has any experience in handling child inclusive mediation.  The Mediator responded saying he had been trained in the child inclusive mediation, but he had no intention to practise it for the time being.  He asked to be given more details of the suggestion if he was going to be expected to work with another mediator.  Therefore, there was never any further suggestion that it was a requirement for the mediation to be child inclusive and the Mother was not “insisting” on this for the mediation to take place.

(e)     The Mother wrote again to propose mediation in January 2019, which was declined by the Father.  

127.Having considered the evidence as a whole, I agree that both had contributed to some extent to the inability to reach consensus to a date of mediation to be conducted, given the busy schedule of the Mother in taking care of the Children in USA and also given the busy work schedule of the Father and some other reasons.    

128.However, it is unfortunate that there was the misunderstanding as to whether the mediation was child inclusive and there was the disagreement as to the mode of mediation, whether it should be direct contact or “shuttle mode” as preferred by the Father.

129.What is more of concern is, during cross-examination, when the Father was asked why he declined mediation in early 2019, his evidence was he is of the view that as parties’ stance is so different, being sole custody and joint custody, there is no middle ground to the matter and he believed it would be very difficult to mediate on the Children’s matters (but not the financial matters). 

130.Even if parties’ views are different in terms of joint or sole custody, parties can still conduct mediation to explore the reasons why there is such a difference, whether there are any ways to communicate, express views and feeling, and sort out the differences.  Even if the disagreement to joint or sole custody could not be resolved at mediation, if parties are co-operating and participating sincerely in the process, I am of the view that Children matters like access arrangements and getting a helper or any relatives to assist and facilitate access could be discussed.  The Father’s views and response to mediation have a bearing on my consideration if parties are able to co-operate in future.

Conclusion

131.Considering the evidence as a whole, I am not of the view that the Mother’s complaints about the lack of effective communication with the Father and the communication problems in different areas are exaggerated.  At the same time, I have reminded myself not to focus on disagreements and problems, as joint custody orders could be aspiratory in nature, looking to the future.

132.I have to consider further, in view of the problems and difficulties the parties are now facing, whether I am of the view that it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of the Children. 

133.I have not lost sight of the background of the parties and the presumption that Ms Yip had drawn my attention to, as stated in paragraph 26 of the case PD v KWW (details referred to in paragraph 44 above).

134.I have carefully considered the cases cited by parties, especially in view of Ms Yip’s submissions about cases granting sole custody with scenarios and circumstances which are not present in this case.  But I have to point out that each case rules on its own facts.

135.I can see the strength of Ms Yip’s submissions, in particular in paragraph 72 of the Opening submissions that she had summarised the number of e-mails and what’s app text messages between the parties on matters related to the Children, showing that parties have abundant direct communication, via e-mails and messages, with each other. 

136.I have considered the submissions and the evidence carefully, while the Mother may not agree to the accuracy of the figures, I am more concerned about how parties communicated, whether they are able to co-operate and discuss and agree on important issues, instead of focusing on the number of e-mail and messages. 

137.Considering the evidence as a whole, background of the case and the submissions, I accept that the Father is not an indifferent Father.  He loves and concerns about the Children and wishes to participate in important decisions of the Children.

138.I accept, as Ms Li has summarised in her SIR, both Children had clearly expressed that they want to involve the Father in their major life decisions.  I also accept that the Father and the Mother are both educated yet very different, with their involvement would be beneficial to the Children’s welfare.  However, I have to point out that even in sole custody, the Father can also get involved in the Children’s major life decisions.

139.I have also considered the Mother and the Daughter’s concern to the diet arrangement during access, as summarised by Ms Li in paragraph 20 of the Updated SIR (refer to paragraph 48 above).

140.Children’s needs, especially their allergy and the need for special attention on diet, and the Daughter’s conditions, are considered (refer to paragraphs 6, 7 and 65 above).

141.I accept that the fact that the Children living in LA and the Father living in Hong Kong should not be a determining factor refusing to grant joint custody. It is more important to consider the communication between the parties. However, living in different time zones do have an impact and will be one of the considerations, especially in the Father’s evidence, he said he has planned flying to LA to meet with Dr. F to discuss the Daughter’s use of eye drops. Unnecessary delay could be caused.

142.I have considered the strength of Ms Yip’s submissions, especially in her closing submissions, summarising the areas where the parties were able to reach agreement, showing that they are both capable to be custodial parents.  I accept that the parties did communicate in the past. 

143.However, I have not lost sight of the problems and difficulties the parties are now facing.  As aforesaid, I am focusing on how parties communicate.  As I have ruled, I accept that the problems and difficulties as explained by the Mother is genuine, I have also considered the different major areas of problems (see paragraphs 67 to 130 above).

144.While the parties have all along known that there are communication problems, as summarised by the Social Welfare Officer and as explored in the CDR hearing, parties understand full well that in order for joint custody to be granted in the best interests of the Children, it has to be workable, and parties have to improve their communication and relationship to ensure discussion and communication (whether direct communication or not) is working, so that they can co-operate and agree to important matters of the Children’s lives.

145.Despite the suggestions and recommendations from the Social Welfare Officer and the Psychologists, communication and co-operating is still not improving, which is evidenced by the fact that parties cannot even conduct a single session of mediation and agree on the helper or any other person to facilitate access, bearing in mind access is one of the important aspects in Children matters and ensuring there is access is of the best interests of the Children.  I am not convinced that joint custody is workable and I am not convinced that parties can reasonably be anticipated to agree on important matters of the Children.

146.Both Ms Li and Dr. Wong’s recommendations are based on the facts and information available to them at the time when they prepare for their reports.  I have fully considered their reports and the submissions about their evidence.  With respect, I am of the view that with all the facts and circumstances of the case considered, if joint custody is ordered, in especially in view of the problems identified by the Mother and the needs of the Children, with parties cannot co-operate and reach agreements, it would not be in the best interests of the Children.  I therefore depart from the recommendations of the reports. 

147.With the reasons aforesaid, having considered all the evidence, submissions and circumstances of the case, I am of the view that joint custody is not workable and I am not of the view that the parties can reasonably anticipated to co-operate and agree on the important matters of the Children. 

148.I have to stress that with sole custody granted to the Mother, she cannot make decisions of the Children matters alone by herself.  In other words, the Father will have to be consulted in all important matters of the Children, his views will be considered before the Mother making the final decision.

149.With the numerous communication as summarised by Ms Yip (in paragraphs 135 and 142 above), I accept that they are evidence that the Mother has been communicating to the Father, consulting him and obtaining his views and advice all along.  When giving evidence, the Mother explains that she will continue consulting the Father, and she understands that she has the duty to do so, even if sole custody is given to her.  I accept that the Mother has been involving the Father in the Children’s matters all along and she will continue doing that in future in the best interests of the Children. 

150.Ms Yip has convincingly submitted in the Supplemental Submissions that in the event that the Court orders sole custody, it should only be granted upon an undertaking by the Mother.  In the Clarification Submissions of the Mother, the Mother has agreed to give the undertaking that, in the event she succeeds in persuading the Court to grant a sole custody order, she will discuss the major upbringing decisions of the Children, such as health, education and religion, with the Father and to weigh in the balance all rational advice he can give in coming to decisions on these matters in the best interest of the Children. 

151.With the reasons aforesaid, and having considered all the evidence, submissions and circumstances of the case and having the applicable legal principles in mind, I make the order that sole custody of the Children be granted to the Mother.

Orders

152.With the reasons aforesaid, I make the following orders :-

Upon the undertaking by the Mother to the Court and to the Father that she will discuss the major upbringing decisions of the Children, such as health, education and religion, with the Father and to weigh in the balance all rational advice the Father can give in coming to decisions on these matters in the best interest of the Children

(1) Sole custody of the Children be granted to the Mother.

Costs

153.As children matters have been involved, I order that there be no order as to costs, including all costs reserved in relation all children matters.  This is a costs order on a nisi basis, which shall be made absolute within 14 days. 

154.I wish to express my gratitude to Senior Counsel and Counsel for their assistance in the matter.

Ms Mairead Rattigan, Counsel, instructed by Messrs. Jonathan Mok Legal, for the Petitioner

Ms Anita Yip, Senior Counsel, and Mr. Ken S.H. Chan, Counsel, instructed by Messrs. Herbert Tsoi & Partners, for the Respondent