Wkw v. Os
Read the full judgment text of FCMC 6992/2020 on BabelCite. This Family Court judgment was delivered on 11 June 2021 before District Judge S. Lo.
Matrimonial Causes – Care and Control – Best Interests of the Child – Child's Wishes – Paternal Grandmother's Influence – Access Arrangement – Joint Custody – Son granted to Father – Daughter granted to Mother – No order as to costs – Parties married 2012, separated 2018 – Son lives with Father and Paternal Grandmother, Daughter with Mother – Ongoing property disputes – Father stay-home dad planning full-time work – Reports obtained – Court finds Son's wish to live with Father genuine and mature – Paternal Grandmother's negative influence diminished – Orders made for care and control and access – Costs no order
Legal issues: Care and control of the Son · Access arrangement of the Children · Weight of the Son's wishes · Influence of the Paternal Grandmother
Outcome: Care and control of the Son granted to the Father; care and control of the Daughter granted to the Mother; joint custody ordered; access arrangements made; no order as to costs.
Cited by 1 case · Cites 2 cases
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FCMC 6992/2020 [2021] HKFC 98 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 6992 OF 2020 ----------------------------
---------------------------- Coram: District Judge S. Lo in Chambers (Not Open to Public) Dates of Trial: 23 to 26 February 2021 and 2 March 2021 Date of Petitioner’s closing submissions: 22 March 2021 Date of Respondent’s closing submissions: 23 March 2021 Date of Petitioner’s reply submissions: 8 April 2021 Date of Respondent’s reply submissions: 8 April 2021 Date of Judgment: 11 June 2021 ----------------------- J U D G M E N T ( Care and control,access arrangement ) ----------------------- 1.This is the trial for the issue of care and control and access of the Son (now 8 years old) and the Daughter (now 3 years old) (collectively the Children). 2.The parties have reached agreement that (i) joint custody of the Son and the Daughter be granted to them; and (ii) the petitioner (“Mother”) to have the care and control of the Daughter. Hence, the remaining issues to be determined by this Court are (a) care and control of the Son; (b) access arrangement of the Children for the non-custodial parent. Background 3.The Mother and the respondent (“Father”) were married on 10 January 2012 in Hong Kong. The Children were all born in Hong Kong. The Father (now aged 43 years) is a full-time stay-home dad whereas the Mother (now aged 40 years) is a self-employed doctor (specialist in Obstetrics & Gynaecology). After the separation of the parties in about mid-2018, the Son has resided with the Father and the Father’s mother (“Paternal Grandmother”) at the former matrimonial home whereas the Daughter has resided with the Mother at the Mother’s rented place. 4.The Paternal Grandmother who is now 68 years old and all along assists the Father to look after the Son. 5.Apart from this application for the Children’s matters, the parties and the Paternal Grandmother are disputing the beneficial ownerships of 3 properties as follows:
6.All these disputes are still on-going and in view of the complexity, they are unlikely to be resolved within a short period of time. 7.The present interim access arrangement of the Children is governed by the Order dated 3 July 2019 under FCMC 10271/2018 as follows:
8.Pursuant to the Order dated 15 July 2020 under FCMC 10271/2018, leave be granted to the Mother to issue a fresh divorce petition on the ground of one-year separation with the consent of the Father. The Mother issued a fresh petition on 6 August 2020 under the present proceedings. 9.The following 4 reports (“4 Reports”) are called for by the court:
10.According to the 1st CP Report, the brief comments of Dr Poon are set out as follows:
11.According to 1st SIR, the brief observations of Miss Lo are summarised that:
12.In the 2nd CP Report, Ms Lam briefly commented that:
13.In the 2nd SIR, Miss Lo observed that the Son’s bonding with the Father was undeniable strong and recommended that the Father to have the care and control of the Son. 14.Dr Poon is no longer available due to her retirement whereas Ms Lam and Miss Lo attended the trial and gave oral evidence. Applicable Legal Principles 15.Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap.192 provides :-
16.Section 48C of the Matrimonial Causes Ordinance, Cap.179 provides :-
17.The general principles under Section 3 of the Guardianship of Minors Ordinance, Cap. 13 include :-
18.Besides, the following “welfare checklist” referred to in the English Children Act 1989 and in the recommendations of the Hong Kong Law Reform Commission’s Report on Custody and Access (March 2005) is also relevant:
The Mother’s case 19.The Mother contends that she is more suited to have the care and control of the Son:
20.The Mother further says that it is against the Son’s best interest to continue the present arrangement:
The Father’s case 21.The Father says that he has been the main carer of the Son up to present and has been actively involved in the Son’s upbringing all along. He has provided good care and control of the Son. 22.The Son also shows clear and strong preference to continue to be under the care and control of the Father. The Son is intelligent, smart and mature enough to understand and express his wish on how he would like to live in the future and with whom. 23.The Father is of the firm view that preserving the status quo about the care and control of the Son is in the best interest of the Son. Any drastic change at this stage would likely cause negative influence on his development. 24.The Paternal Grandmother has shown her commitment for refraining from, inter alia, doing anything which may alienate the relationship between the Mother and the Children, by giving the written undertakings to this Court. The Father also gives similar written undertakings. Influence of the Paternal Grandmother on the Son 25.As stated in the 1st CP Report, the Father regarded the dissolution of his marriage was due to the conflicts between the Paternal Grandmother and the Mother. Hence, I think that one of the main disputes in this case is the influence of the Paternal Grandmother on the Son. 26.Dr Poon stated in the 1st CP Report:
27.Ms Lam also said in the 2nd CP Report that:
28.Mr Chan for the Mother submitted that the Son is exposed to influence of the Paternal Grandmother which undermines the Son’s view and relationship towards Mother and that it is of grave harm to expose the Son to such toxic environment which may cause the Son to develop a consolidated negative perception towards the Mother. 29.Mr Chan for the Mother cited C v S [2021] HKCFI 278, a recent judgment by B Chu J dated 3 February 2021. The legal principles are succinctly set out in paras. 61 to 66 of her judgment. In particular,
30.To start with, the Paternal Grandmother denied that she had exerted any negative influence on the Son so as to undermine his relationship with the Mother. Besides, the Mother did not adduce any direct evidence as to such negative influence by the Paternal Grandmother but mainly relied on the comments and observations as stated in the 4 Reports. 31.Mr Chan for the Mother submitted that the Paternal Grandmother plays a substantial role in the Son’s daily life. 32.The Paternal Grandmother said that her involvements in the Son’s daily living were preparing breakfast and dinner for him (as well as the Father). The three of them would have breakfast and dinner together. She also confirmed that the main responsibility of teaching the Son was taken up by the Father, though she would also tell the Son stories about history and calligraphy. She also owns an art gallery and has to manage her business of selling painting and calligraphy in most of her time. I accept her evidence in this regard and find that although she maintains a very close and good relationship with the Son, her involvement in the care arrangement of the Son is rather limited. 33.Mr Chan for the Mother also submitted thatthe Paternal Grandmother hates the Mother to a great extent. As stated in the 2nd CP Report, the Son said to Ms Lam that the Paternal Grandmother only told the Son that the Paternal Grandmother does not like (rather than hates) the Mother. 34.The Paternal Grandmother frankly admitted under cross-examination that she did not like the Mother and said that the audio recordings produced by the Mother were the secret recording of conversations between her and the Mother. 35.Solely relying on what was heard from the audio recordings, I accept that the Paternal Grandmother was extremely rude and out of control at that moment. However, as the conversations in the recording took place on 10 October 2017 before the Mother moved out of the former matrimonial home (more than 3 years ago), I do not consider much weight to be attached on this piece of evidence. 36.No doubt due to the subsisting disputes relating to the 3 properties between the parties and the Paternal Grandmother, it is unrealistic to expect that the Paternal Grandmother’s dislike towards the Mother would lessen in the near future. Nonetheless, I still do not think that there is sufficient evidence to show that the Paternal Grandmother hates the Mother to a great extent as submitted by Mr Chan. 37.Turning back to the comments and observations in the 4 Reports concerning the Paternal Grandmother’s influence on the Son, I do not see any reason not to accept them. For instance, Ms Lam said in the 2nd CP Report that there is some evidence to suggest that the Son had some direct exposure to the Paternal Grandmother’s negative comments (bad-mouth) on the Mother in the past. Having carefully considered the 4 Reports and other relevant evidence, including the oral testimonies of the parties and the Paternal Grandmother, I find that the Paternal Grandmother do have negative influence on the Son. 38.Having said that, I think that the Paternal Grandmother’s negative influence is not strictly equivalent to the parental alienation simply because she is not a parent of the Son although I accept that their relationship is very close. Ms Lam, in her oral evidence, explicitly refused to use “alienation” to describe the influences by the Father and the Paternal Grandmother as suggested by Mr Chan for the Mother. She repeated her observation in her report that the Son’s preference for Father is partly related to his concerns for the Father and his wishes for him to be happy. As per Ms Lam’s opinion, in general, a child can focus more on their own development if adults can contain and regulate their emotions better so that the child would not have to worry about the adults. 39.Mr Chan also submitted that the Father has all along been financial reliance on the Paternal Grandmother, which I agree. The Father admitted that he would not live apart from the Paternal Grandmother. Mr Chan therefore said that the Father would not dare to control the Paternal Grandmother when she loses her temper. That may be the case. However, in my view, the real question is the extent of the Paternal Grandmother’s negative influence on the Son. 40.There is not much evidence before me as to this question. It may somehow depend on the intimacy of the relationship between them. Certainly, my finding that her involvement in the care arrangement of the Son is rather limited will affect the answer to this question, too. 41.The characteristic or personality of the Son may have to be considered. I note from para 6.11 of the 1st CP Report, which states that:
42.It shows that sometimes, the Son may not follow the reasonable request made by the Paternal Grandmother in front of the other people, like the Father and Dr Poon. The Son may have his own idea or reason for not complying with the Paternal Grandmother’s request, even if such request may be considered as reasonable. In other words, it is one of the examples that the Son was not always influenced by the Paternal Grandmother. 43.It is also noteworthy from para 9.1.8.6 of the 2nd CP Report that “..while there is evidence to suggest that the Son was exposed to direct influence from the Paternal Grandmother affecting his views on the Mother, it is uncertain whether this has stopped or not but it appeared that the situation has improved since the last psychological evaluation.” 44.Also in para 10.1 of the 2nd CP Report, it stated “ …There is evidence to suggest that the Paternal Grandmother is now more aware of her own role and her boundary; hence becoming cautious not to speak negatively of the Mother…” and similar comments were made in para 11.4 of the 2nd CP Report. 45.I accept the above observations of Ms Lam and consider that the extent of the Paternal Grandmother’s negative influence on the Son may be high in the past, but as she is more aware of her role and boundary, such influence presently becomes insignificant or diminished. 46.I further accept the written undertakings by the Paternal Grandmother not to alienate the relationship between the Mother and the Son. I come to the conclusion that the situation has improved and will further improve in the future as observed by Ms Lam in the 2nd CP Report. Influence of the Father on the Son 47.It is the Mother’s case that the Father explicitly and implicitly influences the Son and Father’s influence undermines the Son’s view and relationship with the Mother. 48.Mr Chan for the Mother relied on the following paras. in the 2nd CP Report:
49.It is undisputed that the Son has been under the main care of the Father, who becomes a full-time home stay dad for over 2 years and 7 months since about August 2018. At that time, the Mother worked as an obstetrician and was just promoted to vice associate consultant in the hospital. She does not challenge that the Father is the primary carer of the Son. As said in para. 5.5 of the 1st CP Report,
50.Further as observed by Miss Lo in para. 47 of the 2nd Report that the Son’s bonding with the Father was undeniably strong. As a result, I would certainly accept that the Father has explicitly and implicitly influenced the Son in many aspects but I disagree that there is sufficient evidence to show that the Father’s influence undermines the Son’s view and relationship with the Mother. 51.Whether or not, as argued by Mr Chan for the Mother, the Father’s written undertakings are enforceable, I accept his undertaking to promote the relationship of the Mother and the Son, which is a good reminder to him. I also note from para 5 of the 2nd SIR that the Father completed a basic course of “KID First Co-parenting workshop”. It shows that he should understand the loyalty conflicts now being faced by the Son and should not put the Son into a difficult position. 52.Mr Chan for the Mother further submitted that the Father is lack of insight and proper judgment as the main carer of the Son. 53.I do not think that it is necessary to go into details of Mr Chan’s arguments in this regard. In short, such criticisms against the Father may be correct to some extent but no parent in the world is perfect. In the application for care and control, the court has to take into account all the relevant factors and circumstances so as to reach a conclusion which is in the best interest of the child in question. Father’s plan for full time employment 54.The Father has good qualifications in several overseas universities and used to work as Digital Marketing Manager in a famous bank in Hong Kong. In 2011, he formed a company which eventually did not operate at all. In 2012, the Father invested in vintage camera. The investment scheme seems not successful. 55.It is the Father’s own evidence that he plans to get a full-time and gainful job. He also admitted that he has relied on the financial provision of the Paternal Grandmother. He felt obliged to repay her at some time in the future. In this regard, he already had a forward planning to accommodate the Son’s schedule by choosing a job with working hour ended at around 6 p.m. so that he could return home and take over from the private tutor whom he would engage to teach the Son after school. He would continue to pay full attention and provide good care to meet the Son’s needs. 56.Mr Chan for the Mother contended that as the Father will be occupied by his work, the duty of taking care of the Son will naturally land on the Paternal Grandmother, which will only intensify the hazard faced by the Son. 57.On one hand, the worry of the Mother is fully understandable. On the other hand, I accept that the Father’s planning is feasible. As I understand from the 2 SIRs, the Father is also assisted by a domestic helper apart from the Paternal Grandmother. I consider that the Son’s care can be well looked after even the Father finds a full-time job in the future. Importance of taking into account the wish of child 58.Mr Chan for the Mother submitted that the court does not need to attach much weight to the wish of the Son as he is merely 8 years old. 59.Ms Soo for the Father relied on the Court of Appeal case in YSYM v LHB [2020] HKCA 586 which has recently emphasized the importance of a court taking into account the wishes of children by citing the following English cases: -
60.In Y v L [2005] HKFLR 146, the respondent father applied for an order concerning the schooling and education of a 9-year-old girl as the petitioner mother, who was the custodial parent, had a plan to transfer the child to another school. The court accepted that the question to ask at the end of the day was whether it was in the child’s best interest at that stage for the change of the child’s school and the court was guided by the general principles that the court shall regard the welfare of the child as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the child if, having regard to the age and understanding of the child and to the circumstances of the case, it was practical to do so, as well as the wishes of the parents and any report of the Social Welfare Department available to the court at the hearing. 61.In that case, the Social Welfare Officer gave evidence in court and her report concluded that “[the child] is not psychologically or emotionally prepared for a change of school at the present stages” and did not support the change. She admitted in her evidence given in court that in reaching her decision, she put the child’s view as the most important factor, but she had also considered all the other relevant factors. She confirmed that she had personally discussed the matter with the child and was convinced that the child’s view expressed to her was genuine. Based on the Social Welfare Officer’s evidence, the court found it quite clear that the child was mature enough to express her true feelings but at the same time sensitive and considerate not to say things that may upset either of her parents. The court also believed that she genuinely preferred to remain at her then school to go to the new one. 62.The court accepted that that the child’s wish to remain at her then school was that of a 9 years old child, but one who was intelligent and mature enough to have a good understanding of what she wanted, and what had tilted the balance and made it necessary that what he had expressed in a sensible way should, in fact, be the decision of the court, was the court’s belief that it was paramount for the child to feel happy and secured at this stage of her life, and continuing her education at her then school would surely be an important part of that. The court was just not convinced that would be in the child’s best interest to go to the new school at that stage. 63.Ms Lam observed in para. 9.1.8.7 of the 2nd CP Report, the Son was cognitively mature enough to understand that he was going through court proceedings and so he was required to choose between his paternal versus maternal family. Also in para. 11.5 of the 2nd CP Report, the Son was said to be smart enough to know that his parents were in conflicts. Ms Lam considered that there is currently no evidence to suggest that the Father gave any explicit message to the Son for him to choose him or reject the Mother. It is out of the Son’s direct observation of the Father’s responses and his own good intention for the Father. She considered that it is also natural for the Son to want to take care of his father’s feelings, as he considered the Father as a better match in looking after his needs. Ms Lam also accepted that the Son’s strong preference for the Father is partly valid given that the Father’s parenting style is a better match to his current developmental needs and the high level of mutual affection in the father-son relationship. In the premises, Ms Lam did not find that the Son was lying when he showed preference to continuing living with the Father. 64.Miss Lo, who had met the Son privately on two occasions in an interval of about one and a half years, recognized in the 1st SIR that the Son already had relatively stronger attachment to the Father and hence his expressed wish to be with the Father was understandable. In the 2nd SIR, she observed that the Son was an emotionally sensitive child and his bonding with the Father was undeniably strong. Hence, based on her observation that what the Son needed most now is sense of security stage and being free from adults’ conflicts, she therefore recommended the Father to have the Son’s care and control. 65.I accept the observations made by Ms Lam and Miss Lo. Although the Son is only 8 years old, I consider that he is much more mature than other boys of the same age. Such maturity can be somehow reflected by his answer to Ms Lam that “life is too unpredictable” as per para. 8.4.6 of the 2nd CP Report. Having regard to the age, maturity and understanding of the Son, I find that his wish to live with the Father is genuine. It is very important for me to seriously consider his wish in this applicationas it is the Son, more than anyone else who will have to live with what the court decides. The Checklist Factors 66.The Checklist can serve as a useful guide when considering the present issues relating to the arrangements for the Son and his best interests generally. Nonetheless, it is by no mean to be an exhaustive list. Not every factors in the Checklist are relevant to the present case and only some of them will be discussed below. Besides, I consider that it is unnecessary for the court to resolve each and every disputes of the parties, especially some of which are insignificant. The ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding 67.Miss Lo noted that the Son sometimes had low mood because of his parents’ court case and tried to ascertain the wishes and feelings of the Son. She accepted that the Son was consistent in expressing his wish to live with the Father in both the 1st and 2nd SIR. 68.As discussed above, I consider that the Son’s wish to live with the Father is genuine and not manipulated. The child’s physical, emotional and educational needs 69.Ms Lam in the 2nd CP Report considered that the Father and the Mother are both capable of taking care of the Son but recognized that the Son has a valid reason to consider the Father as better at teaching him given that the Father may indeed be a better match for his current development needs. His strong preference for the Father is partly valid given that the Father’s parenting style is a better match to his current developmental needs and the high level of mutual affection in the father-son relationship. Ms Lam praised the Father for his way of dealing with the Son in the context of the Son’s violent play. The Father diverted the Son to attack the air while the Mother would ask the Son to stop attacking her. Ms Lam was of the view that the Mother might contain her own sensitivity towards rejection, which potentially affect her ability to understand the Son’s play behavior. 70.On one hand, I accept Mr Chan’s submission that how a parent should educate his or her own child about the violent behaviour or violent play is wholly a matter of parental choice. On the other hand, the Father having the experience of being a boy may be able to understand the physical and emotional needs of the Son better than the Mother. 71.As to the Son’s educational needs, he had above average academic performance and the Son’s school teacher made good appraisal of his being mature for his age, very sensible, having a sense of humor, relating well with his classmates, kind and helpful to others, relating well with adults, showing high regard for authority, outstanding at generating thoughtful and interest discussions in lessons. 72.In view of the sound backgrounds of both parents, I have confidence that both of them are able to make proper learning and academic arrangement for the Son. The nature of the relationship of the child with each of the child’s parents and with other persons 73.I note from the 2nd SIR that the Son had told Miss Lo that the Mother was not good. However, I am sure that the Son has in fact good relationship with both the Father and the Mother, though apparently his bondage with the Father is stronger. 74.The Son also has very close relationship with the Paternal Grandmother and the Daughter who is 3 years old now. 75.Regarding split care, I accept that it is always in the benefit of the Children especially during their young ages to grow up together. Miss Lo was full aware of it and said in the 2nd SIR that split care and control is less preferable. After all, it is only one of the many factors that I have to take into account. The likely effect on the child of any change in the child’s circumstances 76.Ms Soo for the Father submitted that in the present case, the status quo is particularly important as there is explicit comment from Miss Lo about the importance of maintaining the status quo which has been working well for the Son and warning of likely adverse effect on the Son. Miss Lo, who highlighted repeatedly that split care and control of siblings would always be less preferable, has nonetheless recommended in both her reports that the Father to have the Son’s care and control whereas the care and control of the Daughter to the Mother, apparently due to her paramount consideration that what the Son needed most now is sense of security stage and being free from adults’ conflicts and any drastic change at this stage would likely cause negative influence on his psychological development. 77.Although Miss Lo may not have formal qualification on psychology, she has been working in the Social Welfare Department as a social welfare officer for many years and handling this case for over 2 years since 2018. I still accept her comments that any drastic change at this stage would likely cause negative impact on the Son’s psychological development. Conclusion 78.In my view, both parties are no doubt loving and caring parents who have demonstrated their good abilities to look after the Son in many aspects. The Mother’s worry about the negative influence by the Paternal Grandmother on the Son is understandable and justifiable. The Mother may not be able to believe that the Paternal Grandmother will not continue to “bad mouth” her in front of the Son or even alienate her relationship with the Son despite of the written undertaking given by the Paternal Grandmother. However, I consider that once the issue for care and control of the Son is finalized and resolved, the situation would be further improved. I sincerely hope that the parties including the Paternal Grandmother would explain to the Son that no matter the outcome of the financial disputes between the adults is, it has nothing to do with the welfare of the Son. 79.As discussed above, I must seriously consider the wishes of the Son to stay with the Father (who is his primary carer) in view of the undeniable strong bondage between themas well as the importance of maintaining the status quo. Split care and control of the Children is of course one of the many factors which cannot be overlooked. 80.After having carefully considered all relevant factors and circumstances, I come to the conclusion that in the best interests of the Son, his care and control shall be granted to the Father. 81.I now order that:
82.Regarding the question of costs, the usual order for this kind of application shall be no order as to costs. I make an order nisi that no order as to costs including all costs reserved in relation to the children’s matters which be made absolute unless any of the parties apply to vary by way of summons together with a supporting affirmation within 14 days. The Father’s own costs be taxed in accordance with the Legal Aid Regulations. 83.Last but not least, I take this opportunity to thank Counsel and solicitor for their assistance to me.
Mr Ken Chan instructed by Sun Lawyers LLP for the Petitioner Ms B Soo of Li, Kwok & Law for the Respondent [1] PGM means the Paternal Grandmother | ||||||||||||||
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