Khh v. Pkh
Read the full judgment text of FCMC 8332/2017 on BabelCite. This Family Court judgment was delivered on 28 July 2023 before Deputy District Judge S. Allison.
Family law – Fact finding – Child abuse – Access – Custody – Standard of proof – Indecent assault – Hair removal – Closet incident – Unsupervised access – Allegations of closet and hair removal incidents accepted as occurring but not abuse. Indecent assault allegation not proven. Access resumed unsupervised. No costs order.
Legal issues: Closet incident · Hair removal incident · Indecent assault incident · Interim access arrangements · Costs
Outcome: Allegations of closet and hair removal incidents accepted as occurring but not abuse. Indecent assault allegation not proven. Access resumed unsupervised.
Cites 6 cases
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FCMC 8332 / 2017 [2023] HKFC 145 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 8332 OF 2017 ________________________ BETWEEN
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________________________ RULING ________________________ Introduction 1.This was a fact finding hearing in respect of the only child of the family, a girl, born on xxOctober 2015 (“the Daughter”). The Daughter was 7 years old at the time of the fact finding hearing. There were three distinct and separate incidents which the Respondent mother alleged took place when the Daughter was in the father’s care. On the mother’s case, each of these three incidents, amount to abuse of the Daughter. I refer to these incidents as the “closet incident”, “hair removal incident” and “indecent assault”, respectively. 2.I will consider these incidents in turn and make a finding on each of them. It is important to place these allegations in the context of the context of the parties’ marriage and litigation history, as it is evident that there is a high level of conflict and the parties were unable to communicate reasonably with each other, even when the Daughter’s welfare was at stake. Background 3.The parties married on 15 February 2013, and separated in or around January 2016. Both parties are of Indian descent, with strong ties to Hong Kong. The father spent most of his childhood in Bangkok, but returned to Hong Kong to work in an investment business after completing his studies overseas. The mother was born and grew up in Hong Kong. She obtained a diploma in law, and worked as a legal executive before establishing her own legal recruitment business, which closed down in October 2018. Since then, the mother has worked outside the home for a few months between September 2022 until March 2023. 4.The Daughter was born shortly before the parties separated. The father issued a divorce petition on 29 June 2017 and the decree nisi was granted on 8 January 2019. Since then, the parties have been litigating in the family court almost constantly which is reflected in the number of contested applications and judgments handed down by the court in these proceedings. 5.Focusing solely on the care arrangements Orders; the first court Order was made on 15 December 2017. The Order granted joint custody of the Daughter to both parents, interim care and control to the mother and interim defined access to the father. Following that Order, the father made two applications, the first one on 8 January 2019 seeking sole care and control and the second application in 17 June 2019, seeking shared care and control of the Daughter. 6.In March 2020, the mother issued her application to relocate to Singapore with the Daughter. On 10 November 2020, the mother was granted leave at first instance to relocate to Singapore and an interim access Order was made pending relocation (“Relocation & Interim Access Order”). However, the father appealed against the Relocation Order which was subsequently overturned by the Court of Appeal on 24 May 2021. 7.The Interim Access Order, provided that weekend access was to be alternated between the parents from Friday, 5:00 pm until Sunday, 5:00 pm. In addition, the Daughter would be in the care of the father during the week for one night following his weekend access, and two nights of those weekends he did not have access. In week one, midweek access was to take place from Wednesday after school until Thursday morning when the father would drop the Daughter at school. In the second week, the two-night access commenced from after school on Tuesday until Thursday morning. The father was to bring the Daughter to her scheduled weekend activities when she was in his care including religious classes held on Saturday morning. This arrangement was to continue while the Daughter remained in Hong Kong before moving to Singapore. 8.Following the Court of Appeal’s decision of May 2021, the father issued a summons on 28 June 2021 to address the long term care and control arrangements. On 10 August 2021, the Court of Appeal refused the mother leave to appeal, and by 15 November 2021 the mother filed her application to vary the Interim Access Order. 9.Most recently, on 17 March 2023, the mother applied for the pronouncement of the decree absolute which was refused by HHJ, T. Kwan on 9 May 2023 pending the determination of the Daughter’s care arrangments. During the fact finding hearing, the mother expressed her continuing intention to relocate to Singapore with the Daughter when the decree absolute is pronounced. Relevant dates 10.The court has approached the mother’s allegations in a linear fashion to make sense of the manner each incident was raised. Each allegation and incident is independent of the others. The rejection of one allegation does not justify or follow that the court will move onto rejecting all the allegations. However, at the same time, the court is permitted to draw upon its assessment of one allegation and the parties’ behaviour surrounding each incident, to an extent when considering the others. In order to provide a sensible account of analysis the chronology of the relevant incidents and surrounding facts are set out here as follows:
11.From 6 January 2022 the father had no in-person access with the Daughter. The father’s access only resumed after several months following the Order dated 7 July 2022, on a supervised basis with gradual increments of time with the Daughter. The father’s access was supervised at centres provided by the Social Welfare Department and the Hong Kong Family Welfare Society (“the Centres”) or if access was outside the Centres, it was under the supervision of Rent-A-Mum. 12.There was a further revised access order on 29 September 2022 that the father could have Thursday dinner access supervised by his sister or brother-in-law, Tuesday access at the Centres and for 2 hours on Saturday with Rent-A-Mum. The next Order of 5 December 2022 permitted a change of locations where access could take place at the father’s sister’s house and the people who could supervise access was expanded. This was the access Order in place at the tie of the fact finding trial. Evidence at trial 13.Both parents gave evidence at trial. Both parties maintained their evidence in the face of cross examination and stood by their account. I have had regard for the broader interest each party has as to the outcome of this hearing, particularly the mother. 14.There was also evidence given by one of the Social Welfare Officers involved in the case, Ms Chen and the Clinical Psychologist, Ms Wu (“CP”). The father’s sister also attended trial on the last day to give evidence. 15.I found the father to be a credible witness. It is clear that he is trying his best to maintain a healthy father-daughter relationship despite the difficulty he has faced to have access. I accept that the Daughter genuinely loves and enjoys the time she has with the father and his extended family and I would encourage the mother to support this relationship fully. On the other hand, I found the mother had a tendency to exaggerate and to place an irrational overreliance that the Daughter should be completely believed and that the Daughter is not capable of being untruthful. 16.The father’s sister was a credible witness although of her evidence had little probative value since she was not present during any of the incidents. What is clear from the paternal aunt’s evidence is that the father has a supportive extended family who clearly loves the Daughter very much. Expert Evidence and their reports 17.Due to the length of time the parties have been in conflict regarding the care arrangements of the Daughter, there have been a total of five Social Investigation Reports. Three reports were prepared between November 2017 and June 2020 before the case was taken up by Ms Chen who prepared two updated Social Investigation Reports and one memo until her departure from the Social Welfare Department in February 2023. I am grateful for Ms Chen for attending trial to give evidence even though she was no longer working at the Social Welfare Department. I found her to be an impartial and steady witness. In particular, she remained unshaken in her observation that the Daughter behaved differently when she was with the mother and when she was with her father. 18.The CP was appointed by Order of 5 December 2022 and she prepared a report on 16 March 2022. At the time of making the report, the police were still investigating the hair removal incident and the alleged indecent assault. Hence, the CP did not explore the details of these incidents in her assessment and declined to make any finding on whether the Daughter was subject to parental alienation the basis that the concept was controversial. The CP preferred instead view the child’s experience and relationship with each parent through a multi-factor model. 19.The CP presented her evidence well at trial. I agree with the CP that the Daughter is caught in a loyalty conflict between her parents. I also accept the CP conclusion at paragraph 38(a) of her updated report that the Daughter’s stress is a result of the “incessant parental disputes”. Despite the mother’s denials, I find that the daughter is aware of these proceedings. The CP reported that the Daughter was cross with the father because he had made her mother upset and the parents are the key to freeing the Daughter from conflict. 20.The mother’s affirmation evidence in September 2021 was that the Daughter had displayed symptoms of anxiety in the preceding weeks and she had been sharing about being locked in the father’s closet. The mother questioned both the Ms Chen and CP as to the possible cause of the Daughter’s anxious behaviour. The mother attempted to link the Daughter’s anxious behaviour to the Daughter’s reluctance or anxiety to meet with the father. This hypothesis was rejected by Ms Chen on the basis that the Daughter could be anxious for a variety of reasons. The CP gave similar evidence regarding the various causes of the Daughter’s anxiety. I accept both their evidence on this. Additional export reports 21.In addition to these SIR and the clinical psychologist, there were reports prepared by two single joint experts for the purposes of the relocation trial. Both these experts were not called to give evidence at the fact finding hearing, nor were they involved in the investigation of the three incidents. I have, therefore, placed no weight on the reports of the single joint experts. 22.One of the single joint experts was Ms Lee who had prepared 2 reports and an addendum in relation to the mother’s relocation application (collectively referred to “Lee Reports”). On 30 May 2022, the mother applied to have the Lee Reports expunged from the court files, the court system as well as the records held by Social Welfare Department. HHJ T. Kwan provided on 29 September 2022 her extempore decision refusing the mother’s application. However, on the second day of the trial, the mother sought to renew her application regarding the expurgation of the Lee Reports which was refused on the grounds it was improper to seek to reopen a matter that had already been decided. 23.I note that there has been a finding made by the Hong Kong Psychological Society (“HKPS”) of “gross negligence and biased reporting on the Child Custody Evaluation” in relation to Ms Lee. The finding was reached following an investigation by the discipline board appointed by the council of the HKPS. In light of this finding, I have not relied on or taken in account the Lee Reports in reaching my decision. The law in Hong Kong 24.The purpose of a fact finding hearing is set out at PDSL 10.1 §8, that “the Court shall, wherever practicable, make findings of fact as to the nature and degree of the domestic violence if any and its effect on the child, the parties and any other relevant third parties”. In addition, the fact finding hearing is to assess whether on the balance of probabilities, if there is a real possibility of future risk to the chid, as this impacts the manner in which the court should exercise its discretion in making care arrangements for the protection of the child (see PDSL10.1 §10). 25.The mother in this case bears the burden of proving that the three incidents happened as she has alleged and she has to provide compelling evidence in support of her case. In LACHY v YC (unreported, FCJA 2057/2016, 21 November 2017), HHJ Melloy addressed the standard of proof which is to be met in a fact finding hearings relating to allegations of child abuse:
The closet incident 26.It was the mother’s case that the Daughter told her the father had put her in a closet, locked the door and turned out the lights. The reason given by the Daughter for being placed in the closet was that she had told the father she missed her mother and wanted to go home to her mother. As a result, the father punished the Daughter by placing her in the closet. The mother was unaware of how frequent the Daughter was placed in the closet or how long the Daughter was in the closest for. According to the mother, the Daughter started sharing this story, over the summer of 2021 which made the mother believe that the Daughter was scared and traumatised. The Daughter continued to share this story with several other people. It is not in dispute that at no time, when the mother first heard this story from the Daughter did the mother call or text the father to find out more information regarding the incident. 27.It was the father’s evidence that he had used the walk-in wardrobe as a “time-out” or naughty corner for the Daughter, however, he denied having locked the door or turning off the light. The father also denied having placed the Daughter in the walk-in wardrobe when she expressed her feelings about missing her mother. The father’s case was that the Daughter was not as traumatised about the walk-in wardrobe, as the mother was making it out to be, since the Daughter would frequently choose to play inside the wardrobe with her dolls. 28.The closet is mentioned in Ms Chen’s report dated 7 April 2022. Ms Chen confirmed with the Daughter that the incident happened when the Daughter was four years old, although the Daughter only shared this information with the mother two years after the event. The Daughter similarly shared with the police that the closet incident happened 2 years prior. Ms Chen confirmed at trial that she had investigated the closet in the father’s home and found it to be a walk-in wardrobe, with doors. The lock did not align and the walk-in wardrobe was not capable of being locked. Ms Chen’s comment on the closet incident was that she did not think that the Daughter was scared of the closet but it was unclear if there was a specific incident which caused the Daughter to be frightened. The CP’s evidence that the Daughter was likely to have been upset about the punishment rather than the closet itself. 29.I accept the father’s evidence that he had previously placed the Daughter in the walk-in wardrobe as what he had believed to be an age appropriate punishment. Having heard the advice from the Social Welfare Officer and the CP, he is now aware that this was not considered appropriate for a four year old. In light of all of the evidence, I accept that the Daughter was likely to have been placed in the walk-in wardrobe on one occasion. It is important that the father, having heard advice from the professionals has changed his behaviour and I accept his undertaking to not place the Daughter in the wardrobe as a form of punishment going forward. 30.I note that this incident is not of a serious nature which warranted being an issue for a fact finding hearing and it is my observation that the mother’s conduct regarding the closet incident to be unreasonable for four reasons:
Hair Removal Incident 31.This incident was said to have taken place during the time the Daughter had staying access with the father over Christmas access in December 2021, on 28 December and 31 December. The mother’s evidence was that she learned about the hair removal when the Daughter returned to her care on 4 January 2022. She then contacted Ms Chen on the same day and brought the Daughter to see the paediatrician on 7 January 2022. The paediatrician’s letter records that there was hair loss on the Daughter’s arms and legs, some new hair growth on the bald areas and four eczema patches over both legs. The paediatrician’s letter does not mention that the child was in pain at the time of the appointment. The letter also does not record that the daughter had open sores or scabs which was the mother’s evidence at trial. 32.The mother explained in her 20th Affirmation that “I did not bring this incident regarding the hair removal up with [the father] since I had limited information at that time about the stress it was causing [the Daughter] and did not want to get into a confrontation without fully assessing the situation”. 33.When the mother was cross-examined on why she did not bring to the father’s attention her concerns about the Daughter’s skin or the hair removal before speaking with the Social Welfare Officer or the paediatrician, the mother’s answer was that she wanted to ensure that she was following the correct procedure. I do not accept that this is a reasonable reaction nor does it explain the delay of three days before the mother brought the Daughter to see the doctor if the Daughter was in fact, suffering from pain as the mother claimed. 34.I do not accept that a reasonable person would have called the Social Welfare Officer before seeking medical attention for a child in pain, particularly when the child is known to have sensitive skin. I find that the mother has exaggerated the pain suffered by the Daughter arising from the hair removal. 35.Both parents accept that the Daughter is a child with a predisposition to be hairy. The mother accepted in cross examination evidence that she had previously hired a baby masseuse for the Daughter in an attempt to remove excess hair when the Daughter was just an infant. 36.Although the father did not deny that the pumice stone was used to remove the Daughter’s body hair, his evidence regarding the hair removal incident was to try and blame the mother, claiming that it was the mother who first instructed him to use the pumice stone to remove the Daughter’s hair. The mother denied ever using the pumice stone or giving instructions to the father to use such a device to remove the Daughter’s body hair. The father claimed that the Daughter’s use of the pumice stone was always supervised by the helper or his mother via videocall or the Daughter used the pumice stone herself. The father’s evidence was that he did not know that the Daughter’s hair on her arms had been removed nor did he know how many days the pumice stone was used on the Daughter. He only came to know about the hair removal incident when he received the call from the Social Welfare Officer and when he had spoken with his helper regarding the incident. 37.It is not acceptable for the father to try and shift the blame onto the mother, if fact, that is what she has instructed him to do. I do not accept this as a reasonable excuse for the father’s behaviour. It was the responsibility of the father to decide whether or not the use of the pumice stone was appropriate on the skin of a six year old, and whether it was likely to cause her pain or to inflame her skin bearing in mind that the Daughter had sensitive skin. 38.As for the “magic cream” neither the mother nor the father knew what the Daughter was referring to. However, the mother persisted in her claim that “magic cream” was used solely on the Daughter’s say so. No evidence was provided by the mother as to possible creams which the Daughter could have been referring to. I, therefore, reject that any “magic cream” or any cream was used to remove the Daughter’s hair on her arms. 39.The father has not denied that the Daughter’s hair was removed when she was in his care during Christmas access in 2021, although is it likely to have been the helper who was responsible for this action. Based on his own admission I find that the Daughter’s hair was removed in December 2021 but again, I find that it does not amount to abuse of the Daughter. In any event, the father has provided an undertaking to not use the pumice stone again on the daughter and I accept that he will be more vigilant going forward. Indecent assault incident 40.This is the most serious of all three allegations. I am mindful that notwithstanding this is a serious allegation, the standard of proof is unchanged and the burden is on the mother to provide compelling evidence in support of her case. 41.The mother’s evidence as set out in her 20th Affirmation is that:
42.I have carefully considered the mother’s allegations relating to the indecent assault incident(s) and I do not find them proven. In my assessment, the evidence falls significantly short of establishing this allegation. I have regarding this conclusion having regard to the following:
43.I accept the mother’s evidence that she was having cold feet about reporting the matter of the indecent assault immediately after 9 January 2022. Nevertheless, it is unfortunate that the mother did not bring this to the attention of the court at the hearing on 19 January 2022 when she was seeking an injunction against the father. However, I do not accept that she wished to speak with the father on 23 March 2022 before taking matters forward. The mother demonstrated that she could not text the father over minor concerns such as the closet incident and the hair removal incident. On balance it is highly unlikely, that for such a serious allegation, that the mother would then take steps to speak with the father. Consequently, it is not difficult to see why the father claims that the mother brought the indecent assault allegation only after she could not obtain an injunction against him. Discussion 44.There is no doubt that both parents love the Daughter. I accept there are high levels of distrust, especially from the mother towards the father. I appreciate that the mother has said that both parents do not speak on the telephone but that does not excuse her behaviour or explain why she did not send the father a text message when she was concerned about what she had heard and seen. 45.The mother seems to have little insight into the effect of the present conflict was having on the Daughter. As mentioned above, the mother was aware that the Daughter was feeling anxious before September 2021. Pursuant to the Order dated 10 November 2020, the Daughter was to be sent to the play therapist. The father’s evidence that he had tried to arrange with the mother play therapist sessions for the Daughter on several occasions, but this was ignored by the mother. I was particularly concerned despite the Court Order, the father’s request and her own observation that the mother did not bring the Daughter to seek any play therapy or counselling earlier. The mother finally arranged for the Daughter to see the school counsellor in early September 2022. 46.The mother’s reason that she did not obtain therapy for the Daughter because the Daughter’s anxiety was due to the parents’ disagreement, is not logical or reasonable. It would have been far better for the Daughter to obtain therapeutic treatment as soon as possible about matters troubling her regardless of the cause. In fact, the high parental conflict should have been a good enough reason for prioritising therapy for the Daughter. I am of the view that if the mother genuinely wanted to address the Daughter’s anxiety, she would have taken steps to have the Daughter obtain treatment as soon as possible. Instead, the mother’s delay in arranging the appropriate treatment of the Daughter is very concerning to me. 47.I accept that the father has not abused the Daughter nor does he pose a risk to the Daughter’s welfare going forward. I find that the closest incident and the hair removal incident to have occurred, but that these incidents are not of a serious nature to warrant a suspension of the Daughter’s access with the father or for access to be supervised. I am satisfied with the undertaking given by the father regarding these two incidents. The indecent assault is clearly the most serious allegation, and for the reasons set out above, I find that on the balance of probabilities it had not occurred. 48.Although I accept that some of these concerns are genuinely held by the mother, she continues to believe them as 100% true, notwithstanding the fact that there is little, if any corroborating evidence to support what the Daughter has said in regard to the most serious allegation. This seems to me a remarkable lack of insight or perspective. In my experience, children do not always tell the truth or they make up stories for a variety of reasons. 49.One example given by the father on Daughter’s ability of to be less than truthful or to have her own version of events, which are not founded in reality, related to how the Daughter ended on the school bus in October 2021. The mother’s version was that the Daughter had snuck onto the school bus because the Daughter did not want to go to the father’s house. According to the mother, this was the reason that the Daughter had shared with the mother as to why she was on the school bus. In reality, the school had a miscommunication and the staff had mistakenly placed the Daughter on the school bus. This was confirmed in an email from the school explaining to the father why the Daughter ended up on the school bus. The mother also confirmed in cross-examination that the school had called her the day after to explain the situation. However, at the fact finding hearing despite having read the email from the school and being told the reason by the school, the mother still accepted the Daughter’s version of sneaking onto the school bus instead of the mix up having arisen by the school’s mistake. 50.The father complained that instead of correcting the Daughter’s false impression, the mother continues to reinforce it by leaving the Daughter notes to not sneak off onto the school bus. 51.The father has expressed his concerns about the mother’s parental alienating behaviour with the Daughter. The mother’s unilateral cessation of access and variation of the father’s access is at prima facie odds with her claim that she wishes for the father to continue in the Daughter’s life or that she has not engaged in alienating behaviour. I mention this only in passing because this fact finding hearing is confined to the three incidents raised by the mother. Any findings relating to whether the mother has alienated the Daughter from the father is outside the purview of this ruling. I, therefore, make no comments on the same. 52.It seems to me that if there is to be any improvement in the situation between the parents which has a direct impact on their parenting of the Daughter, both parties need to have some form of ongoing therapy in addition to co-parenting counselling/ therapy. I will direct that both parties avail themselves of such therapy and counselling and to report back to the court with respect to that on the next occasion. Interim access order 53.In line with my findings above, there is no justification for supervised access to continue or that access only takes place in a public setting. Furthermore, it is unreasonable for that access to the father be only once one mid-week dinner access and one weekend access limited to 3 hours, subject to the child’s schedule and activities, as the mother has proposed. 54.Accordingly, the father’s access to the Daughter is to be resumed immediately without any supervision. I have taken into account the evidence from the parties, Ms Chen, the CP as to the difficulties of Tuesday night access. Although Ms Chen supports the resumption of access per the interim order of 10 November 2020, that order was made a long time ago when the Daughter was four years old and intended to be in place for a short period of time. 55.In coming up with the following interim access schedule, I have borne in mind the benefits of a consistent routine, the fact that Daughter is attending full time school, and has various extra-curricular activities. These factors are balanced against the importance of the Daughter maintaining a relationship with her father, and ensures that both parents have at least one full day on the weekend with the Daughter plus time during the school week in order to be involved with the Daughter’s homework and school life. The schedule also cuts down the time the Daughter needs to switch between her two homes. 56.I, therefore, propose that there shall be alternating weekly access for the father as follows:
57.In addition, the father is to arrange the pick-up and drop off of the Daughter at school respectively, as well as to bring the Daughter to any extra-curricular classes on Saturday morning including religious classes. 58.This arrangement allows the mother to organise weekly activities for the Daughter on those days when the father does not have access. The mother is not to arrange any other activities on the weekend, when the Daughter is meant to be with the father, without the father’s prior written agreement. All other holiday access as per the order of 10 November 2020 to remain in place until further order. 59.An updated SIR on the issue of access will be called for in three months’ time, as well as an updated CP report on the question of how the Daughter is coping with access. It will take some time for both parents and the Daughter to adjust to the interim arrangements, before deciding if it is necessary to come back to court. Directions going forward 60.Pursuant to PDSL10.1 paragraph 9, I have to consider whether or not this matter should proceed to a CDR hearing or whether this matter should proceed straight to trial. Given my Order that the parties attend co-coparenting counselling, and personal therapy, the parties are expected to use the CDR hearing to agree on the long term care arrangements relating to the Daughter. 61.The Daughter clearly understands that missing access has the consequence of there being make up access. I, therefore, am of the view that this arrangement should continue because at this age, the Daughter should not be given the choice of whether or not she is to attend access. It is common sense that giving the seven year old child a choice of whether she should attend access, places her in the middle of the conflict and her wish to not disappoint either parent. I hope both parents can explain to the Daughter that missing access will cause more inconvenience and disturb her schedule and that of her parents. 62.I hereby make the following Orders:
Costs 63.Given that neither party has indicated that they wish to seek their costs, and since it is a children’s matter, I make a no costs order nisi to be made absolute in 14 days.
The Petitioner (father) acting in person The Respondent (mother) acting in person Ms Melody Chui for the Official Solicitor’s Office |
Cases cited in this judgment
Further hearings and rulings under FCMC 8332/2017