Lpyy v. Fwhf
Read the full judgment text of FCMP 89/2016 on BabelCite. This FCMP judgment was delivered on 8 December 2022.
1. This is an application by the Respondent father (“ Father ”) for a variation of access to the parties’ child (“ E ”) who was born out of wedlock. He seeks increase time with E while the Applicant mother (“ Mother ”) opposes the application. E is now 9 years of age.
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FCMP 89/2016 [2022] HKFC 271 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 89 OF 2016 ________________
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____________________ Coram: Her Honour Judge Thelma Kwan in Chambers (Not Open to Public) Dates of Hearing: 9 – 11 August 2022 Written closing from Applicant received: 8 September 2022 Date of Judgment: 8 December 2022 ________________ JUDGMENT (Variation of Access) ________________ Introduction 1.This is an application by the Respondent father (“Father”) for a variation of access to the parties’ child (“E”) who was born out of wedlock. He seeks increase time with E while the Applicant mother (“Mother”) opposes the application. E is now 9 years of age. Procedural background 2.The more detailed background of this case can be found in a previous judgment handed down by Deputy District Judge Rita So on 8 May 2020, in relation to the Father’s application for variation of child maintenance. However, I will repeat some of the background and supplement with more relevant and up-to-date information. 3.On 27 April 2016, the Mother commenced an action for custody, care and control of E and child maintenance against the Father. 4.On 17 October 2016, a Consent Order was made by HH Judge C K Chan granting joint custody to the parties, care and control to the Mother and defined access to the Father, including day access and staying access. There was also an order for daily telephone calls and skype calls, and holidays to be shared equally in principle. The defined access arrangements are detailed as follows:
5.Unfortunately, there were difficulties with the access to E in around late 2017. She demonstrated resistance towards meeting with Father. In response to the deteriorating quality of access, the parties sought help from the Parent-Child Contact Centre (“PCC”). 6.On 20 November 2017, the Father filed applications for variation of care and control and access, alongside a variation of maintenance. 7.Pending further court order, overnight staying access stopped after December 2017 due to E’s resistance towards Father. Since February 2018, the Father only had weekend day access at the PCC. 8.On 12 September 2018, Deputy District Judge Rita So, inter alia, made a consent order at the close of a CDR, for a downward variation of the access arrangement (“2018 Variation Order”). This 2018 Variation Order removed overnight stay access, limited physical access to dinner access during weekdays and Saturday access at the Parent-child Contact Centre. It is also made in conjunction with certain undertakings by the Mother. Excerpt of the 2018 Variation Order is as follows:
9.Since the 2018 Variation Order, spanning the covid pandemic, and through intervention of social welfare officers, the access arrangement just prior to this current hearing evolves to Friday evening access at a venue close to the Mother’s residence, and alternate Saturday access at the PCC. 10.Father took out the present summons on 14 January 2021, seeking a variation of access to E to, inter alia, increase his access from Thursday after school until noon on Sunday for school days and from 1:30pm on Thursday to noon on Sunday for a non-school day; and daily remote access between 8-11 pm. Parties failed to reach a settlement after two CDRs before Deputy District Judge Raymond Chow (as he then was) which took place on 25 October 2021 and 31 December 2021. The Father’s application was then adjourned to the present trial before me. 11.Over the course of this 3 days’ trial, both parties gave evidence, as did the social welfare officer and the clinical psychologist. Brief background of the family 12.The Father, born in 1975, is now 46 years old and the Mother, born in 1978, is now 44 years old. 13.Both parties had former spouses whom they both had divorced in or around 2012. Father has in his former marriage a daughter who now resides in Australia with his ex-wife and to whom he pays periodical maintenance. While Mother has no child from her former marriage, she gave birth to a son before her former marriage, but she had not asked for custody, care and control, nor has any duty to pay maintenance. 14.The Father was employed at a local bank but was terminated in around September 2017. His unemployment lasted for a brief period of time before he was then engaged with an immigration consultancy company as a director or partner. The Father now works at a bank on a contract basis; and is paying HK$29,500 per month of maintenance to the Child. 15.The Mother worked as an accounting clerk but terminated her employment in around mid-2011. This was shortly after the parties began dating in April 2011. The Mother remains unemployed. 16.E was born on XX August 2013. She just turned 9 and is studying Primary 3 in a local government-aided school. 17.The parties’ relationship had turned sour since a few months before E’s birth, they appeared to have an on and off relationship until the Mother filed her application for custody care and control in April 2016. The parties strained relationship does not appear to have improved. The Father’s case and open proposals 18.It is the Father’s case that Mother disregarded the Consent Order made by HH Judge C K Chan on 22 September 2016 and behaved in a way that severely obstructed his access with E. 19.Father complains about Mother’s uncontrolled behaviour that is abusive and intrusive towards him, which has obstructed and interrupted his access time with E. He drew attention to the fact that such abusive behaviour started around May or June 2017 when he was enjoying weekly staying access. Such behaviour increased during video call access as a result of which he had to suspend video call access arrangements by April 2018. 20.Since then, Father says that E developed a progressively deteriorating trend of behaviour towards him and perceives him as a “common enemy” with the Mother. Father also says that the quality of access, being mostly at the PCC, progressively deteriorated over the last 4 years to a point of failure. This is despite his best efforts to rectify E’s belief that he is dangerous and monstrous. 21.It was the Father’s case that he had been willing to compromise by consenting to the reduction of access time voluntarily as well as with the 2018 Variation Order. He says he painfully endured these compromises “for the proper mental development of E”. 22.The Father has sought to argue the relevance of parental alienation in this case and brought this up at the PTR, but I directed that as there is no independent expert evidence on this topic, I would be unable to rule on the issue of parental alienation. 23.Over a number of social investigation reports and clinical psychologist reports prepared over the last 7 years, the social welfare officers and the clinical psychologists could not determine the real cause of the E’s near complete rejection towards the Father. Thus, besides the issue of variation of access, the Father also sought for the following ancillary issues to be considered:
24.Although Father recognises that a dramatic change in access times with E is “currently very difficult”, he believes that without an order for a “more longer-term access goal”, the Mother will continue to disregard her responsibility to assist and to foster a good relationship between E and himself. 25.The Father’s open proposals are thus as follows: -
26.Father in his oral opening says adamantly that access should be unobstructed and uninterrupted, and that all he wants for E is to experience and receive love and to learn from her “capable and well educated father”. He asks for the opportunity to participate in her life and to act as a responsible father in her upbringing. 27.At the end of the trial, parties were given 28 days to file closing submission, Father has not done so. The Mother’s case and open proposals 28.Mother relies on professional views of the social welfare officer and clinical psychologist to support her position that she has not exerted any abusive behaviour towards the Father. She points out that the three Social Investigation Reports (“SIR”) describe her as having been facilitating access and cooperating with the PCC and the social welfare officer to explore possible alternative for access. 29.Mother also says that, in any case, it is not necessary to make a factual finding of whether or not she acted abusively towards the Father, because all reports prepared by the social welfare officer and the clinical psychologist is against increasing access time in favour of the Father. Her counsel submits the following as reasons:-
30.The Mother also criticises that Father requested the 4th and 5th SIRs in the hope of persuading them to change their views. However, the reports continued to and even more strongly recommend against increasing access. 31.The Mother’s open proposals are as follows:-
32.Her counsel in his oral opening proposes to adopt the SWO Mr Lee’s recommendation of biweekly access at the PCC and in the alternative, put forward the suggestion of suspension of access. The issue 33.Ultimately, the issue before me is whether it is in E’s best interest for the access order to be varied to give increase time to Father. 34.For the record, I do not consider the issues raised by the Father set out in paragraph 22 herein to be relevant for the determination of the Father’s application before me. 35.However, I will also consider what other measures best serve the E’s interest in the near future. The law in Hong Kong 36.As a starting point, the guiding principles governing an application concerning a child are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which says that:
37.In looking at the meaning of “first and paramount consideration”, the explanation by Lord Mac Dermott from the case of J v C [1970] AC 668 at 710 cited by DDJ A Tse (as she then was) in the case of E v F [2018] HKFC 130 at §50 is most helpful:
38.The “Welfare Checklist”, i.e. a list of factors under the English Children Act 1989 in the UK, has been a useful guide for our Courts when considering what is in the best interest of children. These factors are not to be utilised mechanically and judges may cherry pick those that are most relevant. (H v N (children: variation of interim order) [2012] 5 HKLRD 498) The list of factors are:-
39.As for the right of access, the Court regards it as the right of the child, not a right of the non-custodial parent. Hence, considering the child’s best interest, it may be appropriate to refuse access from the non-custodial parent if the child will be adversely affected by it (per Hon Godfrey VP in W v I [2000] HKCA 374). The Reports 40.As mentioned above, there have been a number of reports prepared over the course of these proceedings. There are 5 SIRs since August 2016 (respectively 27 August 2016, 4 July 2018, 6 July 2021, 11 October 2021, and 13 June 2022), of which the latter three were prepared by Mr. Lee who gave evidence in Court. There are also psychologist report prepared by Ms Wu dated 29 June 2018, and a clinical psychologist report prepared by Ms Chu dated 13 June 2022 (collectively the “Reports”); Ms Chu also gave evidence in Court. 41.Excerpts of the Reports appear below. Generally, I find both Mr Lee and Ms Chu to be credible witnesses. I am particularly impressed with Mr Lee’s engagement with and insight of the family dynamics and situation through his oral evidence. 42.I also find Ms Chu’s evidence to be helpful but my disappointment lies in the fact that she said she has tried every method she knew how to help E and do not know what to do with her next. What has been happening at Access 43.The most succinct and visual description comes from the latest SIR dated 13 June 2022 (“June 2022 Report”) at §18:
Phone contact 44.E has refused to respond to Father’s attempt at audio and video contact. Father had resorted to sending recorded messages to her through Mother, according to Mother and reported in the SIR dated 6 July 2021 (“July 2021 Report”), the following is the E’s reaction at §8:
Day Access at PCC 45.Access has been taking place on alternate Saturdays afternoon at PCC, every time E goes there, she would demonstrate a lot of unwillingness to go into the room to meet with Father; and even when she finally did, there was either serious tension or limited interaction between the two:
46.Mr Lee reports at §10 of the June 2022 Report:
47.At an observation of access at PCC on 14 May 2022, Mr Lee reports as follows:
Evening Access 48.E currently sees Father every Friday, this started with a dinner access and has over the years evolved to take place on the podium near the Mother’s residence. 49.In the July 2021 report, this was what happened in May 2021:
50.At an observation of evening access on 22 April 2022, Mr Lee went to the Mother’s residence and reported this event:
Discussion 51.I have no difficulty in coming to the decision that the Father’s application must be refused. 52.In consideration of the E’s best interest, I believe more measures are required to alleviate the trauma she now experiences going into access with Father. The View of the SWO Mr Lee 53.In his first Report in July 2021, Mr Lee says that the Father does have certain realizations. However, I am not of the view that the Father has sustained this understanding.
54.In his second report in October 2021 (“Oct 2021 Report”), Mr Lee has this to say at §8:
55.I specifically recall one part of Mr Lee’s oral evidence when he talks about the weekday access at a podium near Mother’s residence. When E sees both parents’ presence and see them talking to each other, she reacts more positively to Father’s presence. This may be an indication that E needs to see the parents in a good terms, especially as she is very close to Mother. On this point, Mr Lee emphasizes that for access to be successful, it is not just about Father and E, but also between Father and Mother, it’s a tripartite system, and each with important roles to play. It is clear to him if the parents are in tension, E reacts negatively. 56.In Court, Mr Lee says that Father would initially appear to be engaged and in agreement with his proposal but in a few days’ time, Father would then revert back to his own point of view and preferred actions. 57.It is important to note that in his last June 2022 Report, Mr Lee no longer recommends the Friday access but only proposes to keep the phone access and bi-weekly access at PCC. Regarding these proposals, he explains that on-going access at PCC is preferred as intervention by on site SWO will be available if needed. He further comments that Father is unable to control or manage E by himself if she goes into hysteria reaction. 58.At the end of cross examination, I asked Mr Lee whether the parents have a good understanding of the situation. Mr Lee states that the issue with Father is his unwillingness to accept other people’s advice or change his views, therefore failing to see E’s needs, and only focus on what he wants. He comments that Mother is willing to collaborate and listens to advice and will try to do what has been suggested to her; but she continues to be under stress as she is always suffering under the Father’s accusing finger. 59.I accept Mr Lee’s evidence. I further acknowledge his candour in his oral evidence and his efforts in guiding the parents and dealing with their differences. The View of the Clinical Psychologist Ms Chu 60.The view of the clinical psychologist was first captured in §28 of the July 2021 Report, this was her observation:
61.The essence of her report in June 2022 describes E’s personality and her observations; while she is not able to place the reasons for E’s reaction to Father, what is most disturbing is that E seems to have regressed behaviour, she withdraws herself socially and is in an enmeshed relationship with Mother. This actually echoes what the Mother said in her oral evidence that relatives observe that E behaves way below her age. Ms Chu comments that E is also experiencing serious insecurity issues and as echoed in Mr Lee’s oral evidence, takes a long time to warm up to people. 62.Ms Chu holds a strong view that Father has to hold off on his conduct to allow for the E to recover.
63.What is pronounced is that if this is not done, it is her view that the E’s emotion social and mental health will suffer.
64.Father in his cross examination of Ms Chu accuses her of being biased and in favour of Mother, this was denied. His line of questioning echoes his criticism of the Mother, specifically of her inability to control her emotion and her low threshold to handle pressure; Ms Chu’s answer to this is that Father is the one who is causing the Mother’s suffering. She further reiterates that Father will not listen to any suggestion from her. 65.When cross examined by the Mother’s counsel, Ms Chu repeats her view that imposing more access and perpetuating Father’s conduct will only negatively impact E, who will continue to resist even more vehemently. She emphasizes that what is priority now is to foster the E’s sense of security, trust and appropriate level of independence. 66.I also accept Ms Chu’s professional views with regard to E’s mental state and the possible risks going forward; save for my decision regarding access in the immediate term as elaborated below. My view of the Father’s position 67.I have the benefit of seeing Father gives evidence in Court, he acts in person, is fluent in English and ably presents his case. He says in his opening that all he wants is to have an on-going relationship with his daughter. I do not doubt for a moment that he loves E, and his intention well meant. 68.However, what comes through clearly at trial to me, is that he has no insight whatsoever as to how his conduct is affecting his daughter. He thinks only he is right and everyone else is in the wrong. He is only intent on blaming Mother for everything that is happening between E and him, and bases his whole case on his allegation of the Mother’s conduct. He also believes that his way is the right (and probably the only) way, and says he refuses to be dictated by E’s behaviour; therefore he imposes his own wishes on E with no apparent sensitivity to her emotion, needs and reactions. The following is in the October 2021 Report:
69.The Father position is further elaborated in the following excerpts from the same report:
70.Father’s cross examination of Mr Lee, Ms Chu and Mother demonstrate his focus on pointing outward to other people’s faults, and shows a serious lack of self-reflection of how he has contributed to today’s predicament in his relationship with E. 71.I do not accept Father’s intransigent views that he knows what is best and that he should take over the reign and not be led by the E’s reaction to him. Father clearly does not understand that increasing the quantity of access does not necessarily lead to increase in its quality. My view is supported by both Mr Lee and Ms Chu as contained in their reports and oral evidence at trial; it is both their opinions that Father is not willing to take advice on how he should be approaching his time with E. E’s excessive reactions to Father need to be guided by professional hand; forcing one’s way forward will only result in more negative reactions, and may harm her further in the long run. What is disturbing to me is that Father is oblivious to all this. About the Mother 72.Mother comes across as caring and genuinely concerned about E’s mental state. The reports repeatedly say that she has been consistently co-operative, and willing to try different ways of engaging with Father. 73.Mother repeatedly states how stressful she has been in dealing with accusations from Father, managing E’s resistance to him, while dealing with her grave concerns over E’s regressive behaviors. She was also stressed when there were litigations over reduction of maintenance payment. 74.Father focuses his allegations against Mother, criticizing her for emotionally abusing and manipulating E, and for being a bad role model for her, these are denied. At the trial, he has subjected her to a rather lengthy cross examination based on transcripts of recording during video sessions he had with E which took place back in late 2017 to early 2018, when Mother accompanied her on the video calls. Father accuses her of losing her control and using abusive language at him during the calls, and he claims that this has affected his relationship with his daughter. Mother’s oral evidence is that if those words were uttered, it was prompted by Father and must be read in context of the conversations. She agrees that those interaction could have affected E, but this took place 5 years ago, and is no longer happening. Counsel for the Mother reminds this Court that Mother has given an undertaking in September 2018 not to physically appear in or conduct extended conversation and give E and Father privacy in the video access. 75.This appears to be the crux of the Father’s case against Mother, based on events that go back several years, but nothing more was put forward to support his case that Mother is ongoing obstructing his access and his relationship with E. I must admit having observed the cross examination by Father, one can glean his critical attitude against Mother and how she must have been put under immense pressure in the recent years when blamed for E’s reaction to him. 76.I accept Mother’s evidence and finds her to be a credible witness. What should be the access going forward? 77.In the assessment of this question, I have in mind the guidance of the abovementioned Welfare Checklist, in particular:
78.It is distinctly apparent to me that what E does not need at this moment is further pressure to spend time with Father. If any child spends every Friday evening and alternate Saturday afternoons screaming, kicking, trembling and crying in hysteria before going to access, I cannot see how this kind of reaction is not considered as harmful to her well-being. Furthermore, I am very mindful of Ms Chu’s concern as to the long term effect on E’s mental state. In my view, physical access time with Father now will therefore be detrimental to her best interest. Suspension of Access 79.At the PTR to this trial, on reading the relevant reports before me then, I have made it clear to Father that while he has applied for an increase in access time with E, I am at liberty to go the other way. I have also indicated to him that instead of going through the whole trial, money is better spent on helping E’s recovery. 80.I have not forgotten that the question on suspended access is asked of Ms Chu at trial, and she feels that the Father-Daughter relationship will be affected if access is to be suspended. I also remind myself that Mr Lee has only suggested a reduction of access to twice a month at PCC. However, given all the evidence before me especially from the various reports, and oral evidence at the hearing, I am of the view that a period of hiatus is best so that all parties can recover and regroup, and to enable further professional help to be sought. Therefore with E’s best interest in mind, I will order that Father’s physical access to E be suspended until further Order of Court. 81.In considering the issue of access going forward. I am very conscious that best efforts must continue to be made to ensure there are opportunities ahead for Father to mend his relationship with E. Evidence is that Father and Mother and E are attempting therapy at Asian Academy of Family Therapy, and the Court needs to be apprised of the progress there. In the alternative, there are professionals who offer family reunification programs. The updated SIR to be called should contain information from the respective parties on this. 82.Father in his open proposal offers to bear the costs of psychotherapy and counselling for E, I intend to make an order for the parties to explore this option for her with a private psychologist/psychiatrist and set this up as a matter of priority, this is preferred because government appointment is taking place only once a month. 83.I am also of the view that both parties need to have professional guidance on how to manage their inter-relationship and each with E going forward. In this context, Father should seek assistance especially to learn how to listen to and be open and sensitive to E’s needs, and to place her needs in priority to his own. As for the Mother, she will need guidance on how to help E to gain a sense of security, learn independence, and to deal with E’s regressive behaviour. To this end I will direct both parents to seek consultation with private or government psychologist/psychiatrist. I note that Father is willing to pay for Mother’s consultation or treatment in his Open Proposal and intend to hold him to this offer. Calling the parties in 84.I direct that the parties and the SWO Mr Lee to return to Court on 21 November 2022. 85.I seek to confirm the time frame for a full parenting course and Mr Lee told me that they are in series of 8 and can be completed within 6 months. 86.I further inform the parties of my intention to order private therapy treatment for E which can be conducted more frequently than now with the government psychologist. I also direct Mother to attend therapy; as Mother’s condition is less urgent than E, she can therefore use the government system, however if these sessions are too far apart to assist her, then she should also seek private treatment. I say this as her ability to support E will contribute to the latter’s faster recovery. Father confirms his open proposal and undertake to pay for such therapies for E and Mother. 87.I made it clear to Father that seeking assistance to learn to manage his relationship with E is crucial in moving forward access with E; and invite him to give Court his undertaking to attend therapy for himself. True to form, he said that he does not think he needs therapy himself, but he agrees to undertake to do so if it will give him access to E. Request for Undertakings 88.At trial I told the parties to consider if they could agree post trial to mutual undertakings as to behaviours during access, I was informed by the Mother’s counsel that they did invite Father to respond to proposals but to no avail. Cost 89.Counsel for Mother has asked me to depart from the general practice for child matters and to order cost of this summons incurred after the second CDR on 31 December 2021 to the Mother. Submissions were made with regard to the Father’s conduct which I accept. 90.I have informed the Father at PTR that I will consider cost consequences if he insists on putting this whole matter through trial despite all the findings and recommendations from the updated reports. I agree this is a case where I will depart from the usual practice, and make a costs order against the Father, but only relating to costs subsequent to the PTR date on 4 July 2022, and will include the costs of the trial. Orders 91.Upon the undertakings of Father to (1) pay for E’s therapy with a private therapist, (2) pay for Mother’s therapy, and (3) to attend therapy himself which are accepted by this Court; the following Orders are made:
92.It is directed that:
Mr Tasman Tam, counsel instructed by Chan & Associates for the Applicant Respondent acted in person | |||||||||||||||||||||||||||||||||||||||||
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