Tcy v. Cnk, also known as Cnkk
Read the full judgment text of FCMC 4610/2023 on BabelCite. This Family Court judgment was delivered on 2 February 2026.
1. On the same day the Petitioner father (“ F ”) filed his petition for divorce on 2 May 2023, he made an application for care and control of the child of the family, with reasonable access to the Respondent mother (“ M ”).
|
FCMC 4610/2023 [2026] HKFC 23 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 4610 OF 2023 ---------------------------- BETWEEN
------------------------
------------------------------------------------------------ J U D G M E N T ( Care and Control, Access ) ------------------------------------------------------------ This Application 1.On the same day the Petitioner father (“F”) filed his petition for divorce on 2 May 2023, he made an application for care and control of the child of the family, with reasonable access to the Respondent mother (“M”). 2.On 18 July 2023, M made her application for care and control of the child, with reasonable access to F. 3.This is a trial for these applications; it was heard over 5 days between 6th to 9th, and 22nd May 2025. Parties background 4.F was born in October 1973, aged 51 at the time of the trial; M was born in June 1979, aged 45 at the time. Both are highly educated. F’s first degree was in bioengineering, philosophy and chemical engineering, he also has a master’s degree in biomedical engineering and a MBA degree. He runs his own business in a medical equipment company with his partner since 2020. M has a bachelor’s and master’s degree in electrical engineering, a master’s degree in a Business Administrative Program and a diploma in psychology. She is an assistant vice president of an insurance company with regular but flexible work hours. 5.Parties first met in 2005 when attending the same university, they subsequently reconnected, leading to their marriage in January 2013. Their only child (“S”) was born on XX March 2014. 6.At the time of the divorce in May 2023, S just turned 9. 7.The relationship between parties deteriorated over the years. 8.Due to F’s allegation of S’s emotional issues, S started consultation with AC (“AC”), who carries the title of Child Development Therapy Consultant. F refers to AC as Dr AC, according to M’s counsel, AC is not a doctor. This consultation commenced in March 2022 on a weekly basis. 9.The parties continued to cohabit at their former matrimonial home, after the proceedings commenced, F eventually moved out in January 2024. 10.In around October 2024, M also moved out of the former matrimonial home to a new rental flat in Happy Valley. Relevant Litigation History 11.H’s Petition was based on unreasonable behaviour, subsequently amended to one year separation by consent, with Order made on 24 August 2023. Decree Nisi was pronounced on 6 December 2023. 12.On 25 July 2023, S’s consultation with AC was formalised by an Order of Court, a SIR and a SJE Clinical Psychologist Report were also called. 13.At a hearing on 14 December 2023, F agreed to move out of the FMH within one month of the Order, which he did in January 2024. The Order on the same day set down the following interim care arrangement:
14.By my Order dated 4 March 2024, as custody is not in dispute, the parties were granted joint custody of S. 15.An updated SIR was called for on 5 August 2024 ahead of the CDR hearing which was adjourned to December 2024. 16.CDR was conducted on two occasions on 6 December and 16 December 2024. The CDR did not resolve the main issue, but Orders were made regarding holiday access. F’s counsel closing submission 17.Parties were ordered to limit the number of pages of their closing submission to 30 pages at the end of the trial. However, when F’s counsel Mr Leung submits his closing submission, his opening paragraph seeks court’s indulgence to increase page limit to 35 so that “cross examination transcript notes are in the body rather than in annexures for the Court’s ease of reference”. 18.In M’s reply submission, her counsel took issue with Mr Leung’s additional pages of his submission. 19.I take the view that Mr Leung’s approach is improper in presenting the court with a fait accompli. This is unfair to M as her counsel has compliantly produced a 30-page submission. If Mr Leung wants / needs extra pages for submission for whatever reason, the proper approach should be to write to M’s counsel to seek agreement and then jointly approach the court for this exception. 20.Court Orders are made to be complied with, this is a simple Order to follow. Such conduct creates apparent unfairness and should not be condoned. Legal Principles 21.There should be no dispute that the leading principle in a case of this nature is “best interest of the child”, this is enshrined in Section 3 of the GMO. 22.Both parties quoted the Welfare Checklist in their respective opening submission, I have been reminded that there is not to be a mechanical application of these guidelines, and I shall address the relevant elements therein which will be taken into consideration as it is applies to the factual matrix. The factors in the Welfare Checklist are as follows:
23.F makes reference to the case of Naziya Aslam v Rafaqat Ali, unreported (CACV 144 of 2003 (CA) 9 March 2004), with regard to Court’s approach in considering recommendations from the SWO. 24.M makes reference to PD v KWW [2010]4 HKLRD 191, where the Court of Appeal defined care and control in paragraph 32 therein, in particular, this include the authority to impose appropriate discipline. Parties Evidence 25.Parties have filed their consolidated evidence in their Affidavit / Affirmation respectively on 5 March 2025 (for M) and 6 March 2025 (for F). F’s Case 26.The bases of F’s complaints lie in his accusations of M’s harsh parenting style and the psychological impact he says it has on S. 27.It is his case that S has been suffering from “emotional deregulation” resulting in aggressive behaviours, and that M is making light of his issues. 28.He claims that he is a better father, that he was all along the “primary carer” of S, and he is in the best position to offer a balanced, nurturing and healthy life for S. 29.In his evidence, he cites incidences of M’s parenting conduct, in particular he relies on the recordings he made of these incidences. He also spoke to an occasion when S told him he “wanted to die”; and F also complained that S has gaming addiction and therefore S should see a psychiatrist to deal with this addiction. For the latter situation, he made an application to this Court on 22 November 2024 but his application was withdrawn on the date of the hearing on 16 December 2024. F’s recordings 30.F places a lot of emphasis on the recording he attached to his 4th affirmation, saying that this was “the main factors leading to the breakdown of the marriage”, which is M’s “lack of insight into her negative parenting”. 31.There are a total of 16 recordings. 14 of which were between 31 January 2021 to 17 January 2023 (“Batch 1”). These recordings were played in Court, they were recorded when M was supervising S’s homework (except for one in which F was asking their former domestic helper what happened); very often, M had raised her voice and used strong words, and there were incidences in which S had responded. The last 2 were on one particular day on 18 January 2025 (“Batch 2”). 32.F produced transcripts of these recording, but the transcripts include commentary and interpretation of the incident, this was challenged by M’s counsel at trial and were rightly removed from these transcripts. 33.F relied on the recording in Batch 1 to show examples of M’s intense scolding of S. Father claims that the recordings were made on the prompting of a social welfare officer for him to make a formal report to the social welfare department and was “incidentally” produced for the purpose of these proceedings. He says that M admitted to shouting at S particularly over 2021-2023, and during the Covid pandemic. 34.F then says the Batch 2 recording was evidence that M has continued to scold and exert pressure on S after they have moved apart. M’s counsel alleges that this was an engineered conversation (recorded without S’s knowledge), but F says this was his guidance to S to “mend S’s broken moral compass by identifying what is right and wrong and to stand up for himself when need”; F’s counsel calls it an “inevitable and beneficial life lesson for S”. His counsel then proceeds to quote the case of TWC v LKL (12/12/2013 FCMC8460/2012) where DDJ KK Pang cites at §104 that use of covert surveillance in proceedings relating to children is permissible in appropriate cases. M’s Case 35.W says that during the marriage, there was a lot of disagreement on parenting issues. She acknowledges that her past authoritative style might not be most suitable for S, and has since participated in co-parenting courses and adopted new parenting philosophy. She says she now promotes a balance between “structure and independence”, in order to allow S to grow within boundaries giving opportunities for him to explore his abilities. She also understands the need to adapt her approach with S’s evolving education needs and growth. She acknowledges there is room for improvement in her approach and is committed to prioritising S’s best interests and wellbeing. 36.She claims that she is well-suited to obtain sole care and control over S and her ability to do so has been affirmed by S’s school, the social worker, and S himself. 37.M also says she is a better role model for S as F’s financial issues undermine his ability to provide stability. M says F’s medical supplies company has been unprofitable over many years and yielded no income for him. F is in substantial financial debt, and has been borrowing to make ends meet, and she says that this stems from F’s poor financial decisions and an unwillingness to adapt. The updated SIR confirms that F has no sales record in his business since its establishment in 2020, F told the SWO that he has borrowed $1M from his business parter to cover his monthly expenses. M adds that despite this predicament, F has chosen not to seek employment and spent his time at home lounging on the couch engrossed in his electronic devices, with little contribution to household chores and issues. 38.M also says that F failed to assist with or supervise S in his homework, often leaving his homework for M to complete on her return home after work. She says that F often causes disruption to S’s learning process and caused him to lose focus. There were constant arguments between F and S, and she was the person who had to resolve them. S had emotional outbursts in the past and F had not been effective in managing or controlling them. On those occasions, F had handed S to his own parents or ended up sending S back to M earlier than planned. 39.She says that F shirks responsibility, always blaming others for issues with no self-reflection on his own action, and has stubbornly maintained he has no issues and does not require professional intervention for himself. Despite his claim for attending multiple courses, he does not appear to have put them into action but instead, insisting that S go see additional psychiatrist (although S already has access to the school social worker and attending therapy with AC). 40.To F’s comments about S’s suicidal thoughts (allegedly sometime between April to June 2024), M says that F had never told her about this but chose to only inform AC and subsequently the school; she only found out subsequent via legal correspondences. To F’s comment regarding S’s alleged gaming addiction, M says F has never produced any cogent claims that S has this issue. 41.M has moved to a new address in Happy Valley, a spacious flat with clubhouse facilities, where S has his own room. This, the M says, allows him to learn to manage his own space and establish routine. M is also conscious that S will be promoted to secondary school in September 2026, and there will be more demanding workloads, projects, and examinations; S needs to be in a protected setting where he can develop self-discipline and initiative. Under M’s guidance and influence, he is attending church and participating in community and volunteer service, including his church’s alter service. 42.In her opening submission, M asks that the weekday access to F be reduced, this is because S secondary school schedule will be more demanding, and there will be homework which needs to be completed during the weekdays. She says that F’s homework supervision has not been consistent, resulting in M needing to follow up after S returns from access with F home, and staying up late to complete work. If status quo is kept, she says this would be disruptive to S’s routine and impact his rest time. CP Report and evidence 43.There is a SJE report from Clinical Psychologist Dr P dated 13 November 2023. I remind myself that this report was prepared when the parties were still living under the same roof. 44.It is clear that the CP report is quite dated for the purpose of this trial. At the PTR in March 2025, the issue of Dr P’s evidence was brought up. M’s counsel reminded me that I have given direction that Dr P be given the updated SIR for information. Further, on the first day of trial, the issue of the scope of Dr P’s cross examination came up again, it was submitted by M’s counsel that Dr P’s evidence should be limited to the time when she was acting as SJE for the parties, any oral evidence beyond this scope should not be admissible. 45.Other than interviewing the parties and S, Dr P had contacted other people including AC, school teachers, the domestic helper and members of extended family. 46.With regard to M, Dr P observed M’s dissatisfaction with the lack of co-operation from F; but M denied to Dr P that she had ever shouted at S, and said that she raised her voice mainly because F triggered her. The following is excerpted from the end of her report:
47.Although Dr P did make an observation that M had improved towards the end of 2023:
48.As for F, Dr P says that he had admitted honestly that he was affected by the problems at home; and that he perceived that “S displayed qualities that made it difficult to fulfil his parental role”. F says his main stress was related to the lack of support and co-operation from M in parenting, and according to the test results, he was found to be more permissive than the average parent. Some relevant excerpts from the report are as follows:
49.With regard to S, the following are her observations when she interviewed S:
50.Dr P analysis of S’s condition at the end of 2023 is excerpted below:
51.On the heated topic of attending external tutorial class, F relies on comments from Dr P that S should attend after school tutorial class so as to “alleviate the conflict at home” over supervision of homework. 52.At the end of the report, Dr P recommends that M should seek professional help in “managing stress, improve emotional regulation and adjust parental expectations and involvement”; and that F needs to take counselling course to “understand child development and acquire effective parenting skills”. CP’s oral evidence 53.It is of note that Dr P was brought in to give evidence on F’s request, but F denies Dr P’s finding that he is a permissive father. M says that this contradictory attitude is new and F had never indicated that he disagrees with the contents of Dr P’s report. 54.Despite a small tussle at the beginning of the trial regarding the scope of Dr P’s evidence, I agree with M’s counsel that Dr P had been helpful in explaining contents of her report, and answering questions from the two counsels. 55.F’s counsel tried to put forward questions to seek confirmation that F’s relationship with S is close and that he understands him well. Dr P says the test that led to this finding is self-reported, so this was actually F’s own view of the relationship. As to whether F understands S’s need then and years ahead, Dr P says F understands “at that time”, but she cannot predict “years ahead” as this would depend on “how the family develops in the coming years”. When asked if Dr P knows that F is committed to parenting better, Dr P says that that topic was not covered with her. 56.When F’s counsel asked questions about the M, he sought confirmation whether M’s philosophy of parenting accords with her behavior, Dr P says not at the point of time of the audio recordings, but she also added that when M used “abusive” words, it could be out of frustration. She says that while there were times that M could be very angry over S’s homework, M and S can also have good times together. 57.F’s counsel also raised the issue of M’s supervision over S as “traumatic” and therefore led to S being “unmotivated to do homework”, Dr P says unmotivated to do homework is normal for a lot of children. F’s counsel continues to pursue the issue of “trauma”, and how the supervision has caused “dysregulation”, Dr P qualifies her answer to it happening only at the point of time of the recording and further said that the “acting out” in school was not serious. 58.With regard to a comment that S made to Dr P regarding M having improved in the recent months, but he was worried that M would still get upset easily in future. F asked whether M could change from her previous behaviour, Dr P’s observation was that “… M definitely at that time was in high stress, and there could be a … it could be quote a number of factors for mum to be that frustrated”. 59.There was discussion on M’s understanding of S’s needs, and Dr P retort that there could be times when she could misunderstand S’s needs, and in the context of doing homework that S needs more time to do other things. At the end of F’s counsel submission, his last question to Dr P was :
60.Under M’s cross examination, two salient issues were explored:
Social Investigation Reports 61.There are two SIRs, both from the SWO Ms Y. The first one was dated 30 November 2023 and the updated one 30 October 2024. 62.In both reports, the SWO recommends that M is to have care and control of S. The first SIR proposes F’s access to be one weekday after school and staying access from Friday after school to Saturday evening. The updated SIR proposes access for the F which mirrors the interim Orders made in December 2023. First SIR 63.I find the observations made by the SWO of S with his respective parent in the first SIR of relevance:
64.The SWO says that M denied ever criticizing or scolding S but admitted to raising her voice to get S to respond to her, but that she had not done so in the past year. F had criticized M heavily on this comment made by the SWO, as this does not accord with the Batch 1 recordings he made. 65.The SWO observed that S was passive and reserved during the two interviews when she asked S about his parents:
66.Further with regard to the conversation with S:
67.As for the SWO concluding remarks:
Updated SIR 68.This report cites the change of residence of both parties; and that F has hired the domestic helper who used to work for his mother, and also adopted a dog as S has a fondness for dogs. 69.In enquiring after the S’s wishes, the SWO has this to say.
70.The SWO concluding remarks and the basis of her recommendation is captured in the following paragraph:
SWO’s oral evidence 71.SWO was substantively challenged by F’s counsel in his cross examination. That said, the SWO has explained her stance and stood by her findings and recommendations. Some of the challenges will be dealt with below. Discussions 72.I do not intend to deal with every single incident of mutual accusations of the other’s conduct. F’s evidence in particular, is riddled with such incidences. 73.To put matters in context, I am also of the view that it is important to draw a line at January 2024. Before this time, the parties were separated and living under the same roof. The FMH, according to the SIR, is around net 500 sq feet. M and S were sharing the larger bedroom, the domestic helper in the second bedroom, and F sleeps on the sofa in the living room. F left the matrimonial home only in January 2024. Parenting Style 74.I conducted the CDR for this matter in December 2024. It is very clear that the parties have polar opposite “parenting style”, and different philosophies to which they both strongly hold. During the marriage, M appeared to be very strict and demanding of S’s homework; while F is rather lax, hardly exercised any discipline and preferred to allow S to learn from his mistakes. I did make the observation that they actually complement each other well; and that S could benefit from M’s disciplinary approach, and be more relaxed when he spends time with F. 75.In the ongoing atmosphere of mutual accusations, distrusts and animosities, parties were unable to work together to advance S’s best interests. Social Investigation Reports 76.I accept the two SIRs and the recommendations made by the SWO. 77.F’s counsel attacked the SWO at cross examination, criticizing the scope of the SWO’s investigation and that it falls short of reasonable requirement. Inter alia, he says there were :
78.It is not infrequent that often parties (in general) attempt to direct SWOs in what they cover in their reports. In some cases, parties could inundate a SWO with information, sometimes even unilaterally without informing the other side, and some of which can be self-serving. Such practice should be discouraged. In the context of children issues in the family court, SWOs are often tasked with preparing reports to Court to assist Judges in making decisions. These SWO would and should have the necessary experience to complete their required investigations and produce these reports. They should be left with a freehand to consider what materials they think appropriate for the purpose of their reports, this includes what information to read, who to interview, what to include or not include in their reports, and the extent to which any past events require a deep dive investigation. Thereafter, if a trial is inevitable, it is then up to the instances of cross examination to challenge the content of the report or the premises upon which recommendations were based. 79.With regard to F’s complaint that she did not consider the CP report in the updated SIR, the SWO maintains that she is not aware that there was a CP report. Under cross examination, the SWO has repeatedly said that it was her role to produce a report on S and his relationship with his parents. It is contended by M that the SWO should arrive at her own conclusion with her own insights and opinion, and not to rely on information from the CP report. I agree, even if the SWO is aware of the CP report, for the purpose of her updated SIR, the CP report was dated almost a year ago. 80.With regard to the SWO listening to F’s recordings, in looking back at the evidence, the first time such recordings appeared in evidence should be in F’s second affirmation on 26 September 2024 in support of his ex-parte application for care and control of S, there was supposed to be a CD Rom and transcript (but the filed affidavit does not have the CD Rom but only a 3-page transcript), but the main body of the affidavit gave zero information as to the background of these various recordings; this application was dismissed on 3 October 2024 for want of urgency. As the updated SIR was filed on 30 October 2024, it is conceivable that the SWO could not have accessed the recording or the transcript, and even if she had seen the transcript, the lack of information could not be of assistance to the SWO. The following time the recording appeared was in F’s 4th affirmation filed on 6 March 2025, this was 4 months after the updated report. 81.The SWO says that she has conducted a comprehensive review of S’s current status at the two relevant points of time. She says she refused to listen to the abovementioned recording (Batch 1) because she does not have the context in which those were recorded. I agree with this comment. Listening to these recording not knowing who was present, what happened just before the recording, what was the circumstances that led to S’s behaviour and M’s reaction, could not assist her investigation. F’s counsel played the recording in court; SWO commented that while the way in which M spoke to S could be improved, she is not of the view that her assessment can be based on those instances. I also have to agree with the SWO’s question as to why F chose to be secretly recording these occasions instead of intervening M’s behaviour to relieve his son of the alleged trauma. 82.F complained that the SWO did not interview previous teachers of S who had seen his emotional outbursts. To this, the SWO says she was focused on S’s current situation and interviewed S’s current teacher. With regard to S’s condition at school, this was the teacher’s observation of S’s condition in the first SIR:
83.I do not take the view that the SWO needs to interview AC, AC is after all, S’s treating therapist; she has not been brought in as a witness to these proceedings. Dr P had contacted AC and recorded her exchange with her, whatever was said between Dr P and AC is clearly hearsay. 84.I do not accept that the SWO is derelict in her responsibilities, or has taken a “surface approach’ in her investigation as alleged in F’s Reply submission. I do not find F’s multiple complaints about what was not considered by the SWO helpful; nor do I find the cross examination by F’s counsel to have shaken the basis of the SWO’s position. 85.SWO says that her report is based on her observations and investigation which included the parents, interactions between S and them, interviews with S, and communications with S’s teacher and grandparents, she makes it very clear that she has aimed to deliver comprehensive reports and confirms that her reports achieve that purpose. 86.I have found the two SIRs to be relevant and comprehensive in providing assistance to the Court with regard to the S’s condition at the relevant times. The reports and their recommendations are but one of the many factors that I will take into consideration in my decision. CP Report 87.Dr P was reminded during her oral evidence that the scope of her evidence is limited to the timing of her report, and not beyond. Despite F’s counsel several efforts to go beyond this parameter in his cross examination, it has been interjected by M’s counsel, or Dr P had refrained from answering those questions. Dr P repeatedly said in her oral evidence her observations were limited to the point in time; in particular, with regard to M, that during the time of the recording, there was a lot of stress on the homefront when they lived under the same roof. 88.I am mindful that the CP report only reflects the situation of parties and S at the end of 2023. However, I have found Dr P’s explanations of her report in court to be helpful, the relevant parts of her report and the cross examination have been quoted above. About the Child 89.Looking at the reports, my sense of S is that there was a time when he was very unhappy about his parents’ divorce. His difficulty in engaging with the CP and SWO is telling, and as a young child who may not have the wherewithal to handle the situation, he had chosen to be in an avoidance mode, and refrain from answering questions from the CP ad SWO. Dr P has said that S is not in loyalty conflict as he does not prefer one parent over the other, but I do recall the SWO’s observation of S’s fear of disappointing his parents in the answers he may give to her. This should not be a situation a child should find himself in. 90.The updated SIR shows there is possibly of a silver lining. With F having left the matrimonial home, and M finding new accommodation where S can have more space and the privacy of his own room, S seems to be more settled, and have accepted the situation of his parents’ divorce. According to the school teacher, he shows readiness to discuss the situation at home. Compared to the first report, S’s interaction with his F has improved with the latter focusing on outdoor activities with S on the weekend. His life seems to have fallen into a good routine with S being observed to be emotionally stable. Father’s evidence and conduct 91.F says he has been attending a lot of classes and acquiring various practical parenting skills, and he has read a lot of literature on the subject. However, the tone of F’s case during these proceedings from his written and oral evidence, and reflected in all the submissions, is accusatory as he claims that it is all M’s fault which causes S’s “emotional dysregulation” and “trauma”. The impression I have, is that he does not appear to recognise he possibly has a role to play in S’s earlier acting out and non-compliant behaviours; nor has F displayed any intention to change from this stance. Batch 1 92.I will start with F’s 14 covert recordings in Batch 1, F had on multiple occasions recorded M’s interaction with S. While he says that this was meant for the Social Welfare Department (“SWD”), he ends up using this as the bases of his substantive argument in his case, and the Court has not been shown any evidence with regard to whether he did actually send these recording to SWD, as alleged to be his original intention for these recordings. 93.The UK Family Justice Counsel had recently issued guidelines with regard to covert recording in family proceedings. What can be gleaned from these, is the balance that needs to be struck between a party’s intention to show Court what happens “behind closed doors”, versus relevance to the issue before the court. While I can easily hear F’s argument that these are relevant to his accusation of M’s harsh parenting, what is clearly missing in F’s affirmation when making reference to these recordings, is information as to the background and context of these multiples recordings. All he said in paragraph 26 of his affirmation is that they were “some unpleasant episodes at home when [M] supervised S on his piano or homework in 2021 to 2023”. 94.The way that these recordings were produced was not challenged, instead when F’s counsel played through these during trial, M has addressed the questions and explained the situation. 95.I find that these recordings lack context, and while these recordings only captured what had happened on occasions during the relevant time (January 2021 to January 2023), it is not representative of the dynamics now before the court. 96.I also observed that comparing the Batch 1 recording (14 in total) and those given to Dr P in 2023 (§92 of her report, totalling 23), the ones where Dr P commented on M having improved (see paragraph 47 above with regard to recordings in September to October 2023) are no longer exhibited to F’s updated affirmation. 97.I repeat here that I echo the SWO’s question as to why F did not intervene during these recordings. It is confounding if F was so upset with the way M was teaching S and says it causes S to be “dysregulated”, why did he not stop M from causing this alleged trauma to S? His counsel attempts to explain in his closing submissions saying that in not intervening, F is “sheltering S from witnessing parental conflict”. I do not agree, there are many ways that intervention can be conducted between two adults, but to opt for non-intervention over stopping M in her “harsh parenting”, is in my view not a judgement call in the best interest of the child. 98.On a balance of probabilities, it is my finding that these recordings were made by F largely for litigation purposes. Batch 2 99.With regard to Batch 2, the following are the excerpts from the transcript provided by the F. Both recording were from the same night.
100.Then the evidence is that S went to take a bath and returned to the following conversation recorded by the F.
101.My observations with regard to these two rounds of conversation shows that F kept on circling back more than once (as underlined) to talk about M’s scolding S and throwing the iPad, to the extent that even S felt he had to ask why F was asking him those questions. I also observed that S is defensive of M, and asked F not to raise the subject as he might get into trouble, this is an example of how children can be caught between their parents. 102.M says this was deliberately recorded for litigation purpose. F says in his Reply submission that it is to “provide the Court with an up to date understanding of the present dynamics between S and M”. I fail to see how a one-off recording is representative of what is going on at the M’s home, nor could this be relied on to say that M’s “harsh parenting” is on-going and she has not improved. The obvious questions are: Why did F suddenly decide to record his conversation when they were heading into bedtime? What was F aiming to show? If F is teaching S a “life lesson” as he claims, why does he have to record it? Under cross examination, F admitted to intentionally recording these conversation. I do not accept that this is life lesson moment. I am inclined to agree with M that this is litigation tactic on F’s part, and it is not accepted by me that this serves the point he was trying to put forward. 103.With regard to F’s counsel quotation of the above case of TWC v LKL, upon which he relies to justify recording the child and M, M’s counsel says F has failed to quote the full paragraph from that judgment, which he then did in his Reply submission:
M’s counsel went on to submit that this is not a case where the M’s actions pose “danger” to S in the form of neglect, domestic violence or endangerment. 104.Covert recording of an adult is controversial, that of a child requires a lot of consideration. I am mindful of the balancing exercise I need to consider in looking at evidence of this nature. There is a serious breach of confidence and invasion of privacy which could be harmful to a child. In the present case, knowing S’s love for both his parents, I aa most concerned as to how S would react if he realised that F had recorded their conversation and used it in these proceedings against M; and how that might affect his trust towards F in the future. Again, there was no challenge to this being placed into evidence, but I am putting on record that such conduct should not be condoned. Alleged S’s Suicidal thoughts 105.In between April to June 2024, on one occasion according to the F, S told him he wanted to die. 106.What is alarming is that F did not inform M immediately or at all, he only chose to tell AC after a few days and then told school after a few months. The reason he gave in court was that he was afraid S would “feel betrayed”, and that he would lose this communication channel with S. 107.I find this conduct of great concern, if he sensed that S really meant what he said and did not inform M, this is an unacceptable co-parenting approach regardless of his rationale and could not possibly be in S’s best interest. F appears to have let his feelings against M gets in the way of taking immediate action to assist S. Even if he felt that S was not serious, which might be the case here as he waited a while before informing S’s therapist, it must also be something he should have communicated to M. M’s evidence and conduct 108.In response to Batch 1 and 2 being played in Court, M explained the incidents and reasons for her behaviour. I notice that she demonstrated contrition and acknowledged that her approach during those times were not in S’s best interests. 109.I also acknowledge M’s position as represented by her counsel’s submissions. In her counsel words in his closing submission, M has accepted her mistakes, recognizes them, and is committed to make amends. 110.During her cross examination, she said she did reflect and accept that the outbursts were not her best behaviour is learning to manage her emotions. M says she has been attending counselling, this was after the CP report was released by Dr P; while F argues that this only came to light during trial, I do not see any issue with this. 111.I accept M’s evidence. In particular, I accept that she has reflected on her behaviour, recognised her short-comings in the previous way she handled S, has sought help, and is on a continuous path to do better. There may be time of relapses, but the path to improvement often starts with self-reflection and acknowledgment that something is amiss. Care and Control Decision 112.I have decided that M is to have care and control of S. Several factors were considered; these are set out below. Best interest of the Child 113.S has mostly been in the care of M since F moved out in January 2024. It is evident from the updated SIR that S has settled well in his new surroundings at their Happy Valley home. 114.M has clearly demonstrated that she is able to take care of S daily life and needs with a balance of schoolwork and developmental interests. This is confirmed by the SWO, and in the latter’s investigation with the school. 115.S is at an important point in his education pathway as he will be moving up to the secondary school in September 2026. In my view, it is critical that S should not be subject to changes when his life is now routine and stable, changes will create a stressor that will no doubt impact his wellbeing. I do not see any reason in this case where a change to his care and control arrangement is justified. Child’s views 116.The SWO has reported that that S would choose to turn to M in times of difficulties and problem. This shows that S trusts M and her advice. Repeating here the excerpt from paragraph 24 of the first SIR already quoted above:
117.While S has been upset over the breakup of his parents, his preference is clear that he chose to be living with his mother. In the updated SIR, it is recorded that S clearly indicates his preference to maintain the current living arrangement. 118.It is important to have in mind the importance of giving weight to a child’s view as emphasised by the Court of Appeal in YSYM v LHB [2020] HKCA 586 at §71, citing the following paragraph from Rix LJ in the case of Re R (Residence Order) [2010 1 FLR 509:
119.I am not at all persuaded by the F’s argument that S wishes should not be taken into consideration because he is “young”. In F’s closing submission, he says his son, “just over 10 years old, he clearly had difficulties in expressing himself and lacked understanding as to the consequence of his decision”. On this comment, F relies on S’s behaviour as described by the SWO in her updated SIR, repeating here her paragraph 20:
120.F says S’s indication of maintaining status quo must be read in the light of S’s “reluctance” to continue with the interview, and then F proceeds to quote what AC has said of S and what she communicated to Dr P. To the extent that F seeks to rely on something AC said, I attach little weight as she has not been a witness in this case, and anything that she allegedly said had not been explained or elaborated or put to test in cross examination. 121.I have a different interpretation of the above paragraph. I see a child who had been unhappy with the divorce of his parents, and did not wish to talk about it. He was in avoidance and this is not an indication of his maturity level or his inability to express his preference. Paragraph 22 of the updated SIR is also worthy of note here:
It is unfortunate to see a child trying to accommodate his parents, as it should be the parents who should place their child’s interest above their own feelings towards each other. 122.It is also clear that by the time of the updated SIR, S has accepted the situation of his parents’ separation, and it is recorded that S was able to discuss about the home situation with his teacher in an “open and calm” way. I disagree with the way that the F has tried to paint a picture of his child being unable to express himself or has a view of his own. 123.Dr P has described S as a bright child who was good natured, cheerful, playful and enjoyed school a lot. S’s extended family members describe him as smart, intelligent, easy going and kind. His teacher describes him as calm, jolly, and loved witty conversations. In the updated SIR, M says he is intelligent, and F says he is getting more mature, and learning to manage his emotion. While most have commented that S had difficulty expressing himself, he has evidently found his voice in expressing his wishes to the SWO, and this must be given due respect. 124.S told the SWO that he prefers to maintain the present arrangement. S acknowledges M’s good intention in setting limits for him, his choice demonstrates to me a maturity in that despite he enjoys certain freedom, he appreciates the way in which M arranges and organises his life for him as well as providing daily care and guidance. 125.I therefore take the view that S’s wishes, as captured by the updated SIR is one of the important factors that I will be taking into consideration. SIR recommendation 126.I accept the SWO’s reports and the basis of her recommendation, which has been quoted above. F’s ability to support schoolwork and manage emotions, and exercise discipline 127.Based on the evidence before the court, there had been occasions when S was not able to complete homework while with F during the weekdays. Furthermore, based on the M’s affidavit, there was an occasion when F told S not to tell M that the schoolwork was not completed, M found out when S worked late to complete the unfinished homework when he was back at her residence. There had also been an occasion when F did not assist S in finishing his homework because he says S was not feeling well. 128.It could also be seen in the earlier SIR that F was not well equipped to deal with S’s tantrums. The evidence is that as recent as October / November 2024, F had to bring S back to M’s home for her to manage S. F now says he has improved techniques from the courses he attended or his reading, and will deploy them when dealing with S’s tantrums. He therefore says situation has improved. Mother’s emotional / behavioural issues 129.A large part of F’s case is based on his complaints about M’s harsh parenting, as can be seen from the recordings he put into evidence. It is also his contention that this is ongoing. 130.However, other than Batch 2 recording, F had not adduced any further evidence of M’s current behaviour. Even if one were to accept the way that Batch 2 was recorded by F, the two recordings do not substantiate the on-going negative parenting that the F hopes to prove. 131.M’s explanation on this was her frustration on the lack of contribution by F to home, and his unco-operative gaslighting of M’s effort in teaching S. This was exacerbated by covid when they lived separately under the same roof at their FMH. 132.Furthermore, while F accused M’s conduct led to S’s declining grades; under cross examination, F acknowledged that S’s grades had improved since his departure from the FMH. Despite this oral evidence, F’s counsel doubled back again on this point in his reply submission about S’s grades after F has moved out. By merely referring to report cards to make this point is not sufficient as there can be a number of reasons why grades fluctuate over the years, I do not find that F has shown how S’s “low” grades were caused by M. 133.In hearing M’s oral evidence and observing her in Court, I accept that M’s behaviour has improved from the time the recordings were made. She reveals that she has consulted professional to help her understanding and how to approach S, and that she is on-going reflective on how best to parent S so that his best interest is holistically served. F’s “permissive” parenting 134.Having addressed F’s allegation against M behaviour, it is necessary to cover this observation of F. 135.Based on test results, Dr. P described F’s parenting style as relaxed, noting that he placed less emphasis on S’s academic performance and has not actively helped him regulate his emotions during his outbursts. F denies Dr P’s test results which labelled him as more permissive than average parents. 136.Under cross examination, F acknowledges that there had been 4 occasions when he failed to manage S’s tantrum and had to return S to M before the end of access. There had been allegation from M that homework was not completed when S was with F, to which the F had given certain explanations (at least on one occasion that S was sick). 137.M contends that while F can play and grow with S, he lacks the capacity to handle S’s day to day affairs, including academic and emotional support. 138.I do not intend to make a finding on whether F is “permissive”, this is a comparative term. My focus is on looking at whether F has shown that he has been effective generally in S’s daily care, and what it means for S’s interest if M’s contention is more likely to be correct. Mother’s care 139.I take the view that at this point of S’s life, being a transition from primary to secondary school and all-encompassing adjustments and demanding workload that comes with; M is in a better position to offer S a more structured and disciplined school week life than F. 140.I also accept the SIRs where the SWO made her observation on the way that M is providing different aspects of care to S. Welfare Checklist 141.It is of note that a number of factors in the above-mentioned welfare checklist come into play. Some of these have been captured above, this include the ascertainable wishes and feelings of S, S’s relationship with each of his parents, and my decision in part based on the preference of continuity of care. 142.F’s counsel specifically asked me to address on “harm to child”, I do not see that this has been substantiated. 143.I will further add that with regard to S’s physical, emotional and education needs, I am of the view that this has been, and hopefully continues to be provided by M’s daily care, F’s engagement with him in play and other relaxing outdoor activities when he has access; and with both parents supporting to him emotionally with their respective approaches. 144.I have considered and weighed a number of factors in coming to my decision, these factors are listed above; which also includes my observation of the parties throughout the time I am seized of this matter, their conduct at the various hearing including the CDR, and when they gave their oral evidence at the trial. Concluding comments on care and control 145.F has focused largely in the past, and looking at all his submissions, have taken on a finger pointing approach against the M. He needs to appreciate that this is not conducive to co-parenting, and has already impacted S negatively. 146.Parties must understand that this is not a competition as to who is a better parent. In caring for a child, it should be recognized that different parent will have a different roles in relation to their children, which should play to the strength of the respective parent. In this case, it is my observation that M’s strength is her care, providing a structured and routine life, emotional and homework support, and a confidante to S. According to the SIR, S’s relationship with F has improved, and he enjoys time going on hikes and walks with him. It is very easy to discern how the parties here can contribute to S in a holistic way, with M on the structure side requiring discipline and encouraging responsibility and diligence, and a relaxing unwinding time with F, who can teach him things which are his forte. It is also important that both of them acknowledge the role that the other parent plays, instead of fighting over S’s care and placing him in the middle of their acrimony and distrust. Access 147.The current Orders for access is mentioned above in paragraph 13. Father’s proposal 148.I would like to set down here F’s various proposals on access:
149.I must admit that I am baffled by the F’s approach as recorded in the first SIR, it is as if M is to be deprived of spending holiday time with S because of F’s perceived views of M’s parenting methods; it is good to see that he no longer holds that view. Nor do I understand the rationale as to why in his open proposal he is placing a condition on M’s weekday access should he have care and control of S; this is a condition which has nothing to do S’s access with M, and sound more like a bargaining chip to give her access. As my decision is for M to have care and control, the argument on the necessity of F’s proposed condition is not a matter that needs to be addressed. Mother’s proposal 150.As for M:
151.S now attends his session with AC every Tuesday afterschool, as F has access, he takes him there and then spend some time with him after until such time to return him to M’s residence. It is F’s contention that on these Tuesdays, he would only have around two hours with S. 152.I do not intend to comment on how often S should be attending the sessions with AC, this is not the issue before me; and should be discussed between the parents and AC, considering S’s views. 153.I agree with M that moving into secondary school will no doubt bring transition and more academic workload. I am also mindful there had been historical arguments as to S’s ability to finish all his homework when he was with his father, the reasons for which is not a subject matter which requires the court’s finding at this point. What I will say here is that if homework is not finished when S is with F, then this will no doubt causes S stress, delay his sleeping time, and may also lead to arguments between the parties which will no doubt affect S. 154.I have considered and have decided not to make any changes to F’s access at this point of time. In the event that time spent with F results in further or on-going non-completion of homework, then the Court may be required to look at access arrangement with full evidence when appropriate application is made. 155.Therefore with regard to access, the current interim Order shall be made into an Order proper. 156.Furthermore, in referencing F’s open proposals with regard to holidays and special days, I make the following orders.
157.The parties are directed to enlist the assistance of the SWO if a parenting co-ordinator can be engaged to discuss the details with regard to holiday and special day arrangements. If parties decide to engage a private parenting co-ordinator, the costs of such parenting co-ordinator should be shared equally between the parties. Costs 158.M has asked for a Costs Order to be made, but this being a child matter, I will make the usual Order that there shall be no Order as to Costs. Orders 159.For the reasons aforesaid, I make the following Orders:
Petitioner represented by Mr Eric Leung instructed by Messrs Withers Respondent represented by Mr Kay K. W. Chan and Ms Cyndi Ho instructed by Messrs A Lee & Partners | |||||||||||||||||||||||||||