L v. N

FCMC005693/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 5693 OF 2000

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Coram: H.H. Judge Bruno Chan in Chambers

Date of Handing Down of Judgment: 10 December 2001

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J U D G M E N T

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1.This is the parties' contested application for their 5 years old son M, the only child of their 6 years marriage which ended recently by these proceedings. It is however no ordinary custody dispute, at least not the usual straightforward ones that one normally sees in the Family Court. It started out in the most dramatic and hostile manner in the High Court under the guise of the Guardianship of Minors Ordinance and the Domestic Violence Ordinance involving injunction, ouster order and committal for contempt proceedings, which then boiled over to the divorce proceedings in the Family Court and eventually the custody dispute now before me, accumulating on its way thousands of pages of pleadings, affirmations and reports prepared by no less than 8 experts including psychiastrists and psychologists, and finally a trial lasting more than 5 weeks in evidence, with combined legal costs incurred by the parties of more than $5 million, which I understand to be some $2 million in excess of the total equity of their assets. With this kind of costs one has to ask whether all these were necessary or justified, or whether they could have been avoided or at least handled differently. No doubt I will have more to say about the conduct of the proceedings later, but in the meantime I will confine myself to first give a brief background of the marriage and a history of the proceedings which led to the matter now before me.

Background

2.The Petitioner Mother is a 44 years old Chinese raised locally but studied in England, returning to Hong Kong in 1986 to work for J Engineering as a marketing executive promoting and selling construction products. It was through business contacts that she first met the Respondent Father in 1989. Some 6 years younger than her, the Father is an English who came to live and work in Hong Kong in 1983. The parties dated each other for a while and in about 1991 formed a partnership business known as X & Y Company, using the initials of their respective first name, selling construction machines and products from home, whilst the Mother continued to work full time for J Engineering.

3.On 9th April 1994 the parties registered their marriage in Hong Kong. In October 1995 the Mother resigned from J Engineering to work full time at home running the partnership business with the Father. On 19th March 1996 she gave birth to M, and in July 1997 the parties bought their own property at Parkside Villa in Yuen Long where they subsequently made their matrimonial home. However, despite this and the arrival of their child as well as the apparent success of their business, their marriage unfortunately could not last.

4.On 2nd May 2000 the Father instituted proceedings in the High Court as M.P. No. 2177 of 2000 under the Guardianship of Minors Ordinance and the Domestic Violence Ordinance for, inter alia, custody of M, that the Mother be restrained from molesting or interferring with the Father and / or M, and that she do vacate the matrimonial home at Parkside Villa. In support of his application, the Father's Affidavit filed on the same day accused the Mother of having extremely volatile nature with regular violence towards him including once threatening him with a knife, and that she has been cruel to M by subjecting him to long hours of homework every night during which she would scream and yell at him as well as smacking and pinching him, causing him to cry and to be fearful of her. He said that the Mother had exerted such psychological pressure on him that he started to have panic attacks and that he had become so concerned for M's safety that the only solution was for the Mother to move out of the matrimonial home and for the Social Welfare Department to investigate the questions of M's custody and access.

5.Armed with this evidence, the Father's solicitor appeared before Mr Justice Hartmann on the same day of 2nd May 2000 and obtained an order, on ex-parte basis, restraining the Mother from molesting and interferring with the Father and M and to vacate Parkside Villa within 3 hours of the service of the order. The Father was also granted the temporary custody of M until the hearing of his inter-parte summons fixed 3 days later on 5th May 2000.

6.This order was served on the Mother on 3rd May 2000 at the matrimonial home and as a result she moved out of Parkside Villa on the same day in compliance thereof and immediately sought legal assistance. On 5th May 2000 the parties appeared before Deputy High Court Judge Woolley when he adjourned the hearing to 12th May 2000 after giving certain directions including extending the injunction and ouster order of 2nd May 2000 to that date.

7.Pursuant to the direction given on 5th May 2000, the Mother filed an Affidavit denying the Father's allegations and claiming that his application was in fact a surprise to her as there was nothing wrong with their relationship throughout the years. She expressed concern for M's safety as the Father was never a good carer and that he indulged in drinking. She was also worried about their business if she was denied access to the business documents and accounts. She therefore asked that the order of 2nd May 2000 be discharged and the Father's application be dismissed.

8.On 12th May 2000 when the parties appeared before Deputy High Court Judge Gill, they were able to reach a temporary truce by agreeing to consult child psychiatrist Dr C.K. Wong for a report on M's welfare and interest, and in the meantime the Father was to have interim care and control of M, whilst the Mother was to have access on Monday, Wednesday and Friday for 1 hour each at the clubhouse of Parkside Villa and on Saturday from 10 am to 4 pm in the company of an independent third party to be agreed between the parties. The Mother also undertook to the Court not to interfere with the Father or M or to return to the matrimonial home at Parkside Villa until the next hearing on 14th June 2000. These terms were incorporated into Judge Gill's order who then accordingly discharged the order of Mr Justice Hartmann of 2nd May 2000. Meanwhile on 11th June 2000 Dr C K Wong submitted his preliminary psychiatic report in which he found that both parties love M with whom there was good psychological bonding, but some of the behaviour of the Mother towards him when teaching him homework could amount to psychological abuse. He recommended that Mother should see counselling psychologist or family therapist for help and that in the meantime the Father should continue to have interim care and control of M with certain defined access to the Mother and that the case be reviewed in 6 months' time when he would prepare a definitive report.

9.Unfortunately the truce could not last long enough for that when on 15th June 2000 the Father took out a motion that the Mother be committed to prison for contempt of Court for interferring with the business of X & Y Company including causing the company's accounts to be frozen or inoperable and wrongly informing the company's bankers and customers that the partnership had dissolved, thereby seriously affecting his means of financially supporting himself and the child M which he said amounted to a breach of her undertaking given to the Court on 12th May 2000.

10.Before the committal proceedings was to be heard on 4th July 2000, however, the Father applied on ex-parte basis with notice before Judge Gill on 21st June 2000, and obtained an mandatory injunction requiring the Mother to take all necessary steps to reinstate or reactivate the working account of X & Y Company at the Hongkong & Shanghai Bank and an injunction restraining her from contacting any suppliers or customers of the Company or from doing or causing to be done any act the effect of which would or would be likely to damage the Company's business or its continued operation.

11.Not surprisingly, the Mother immediately launched an appeal against the said order on the grounds that she had not been given sufficient time or opportunity to challenge the Father's evidence and that the learned Judge had erred in law in making the mandatory injunction relating to the operation of a business in proceedings which were instituted under the provisions of the Guardianship of Minors Ordinance and the Domestic Violence Ordinance and hence he had no jurisdiction to make the kind of order that he made.

12.That appeal came before Mr Justice Mayo in the Court of Appeal on 13th July 2000 when the parties were able to reach an agreement to co-operate in the continued operation of the business of X & Y Company and jointly gave certain undertakings to Court in respect thereof. As a result the appeal was by consent dismissed and the injunction of 21st June 2000 was also discharged. Perhaps for the same reason the Father did not proceed with his motion for contempt against the Mother, and that with her consent, he was able to bring the child M with him to England for a holiday between 12th and 29th July 2000.

13.I should at this stage mention that, going back slightly in time, on 22nd June 2000 the Mother filed a petition for divorce in the District Court in these proceedings against the Father on his unreasonable behaviour in which she also sought custody care and control of M and general ancillary relief. It then made sense, and was indeed the parties' intention, to move their dispute to the Family Court, which they eventually did, but not before one final battle to be fought in the High Court.

14.On 21st July 2000, whilst the Father was still in England, an application was taken out on his behalf for another ouster order before Judge Gill against the Mother from the former matrimonial home at Parkside Villa and an injunction restraining her from returning thereto. Apparently the Mother had returned to the matrimonial home during the Father's absence and he therefore wanted her out of the place before he and M were to return to Hong Kong so as to preserve the status quo pending the final determination of the custody issue.

15.This application was opposed by the Mother who explained that she needed to go back to the matrimonial home to look after M as well as the business of X & Y Company and that she posed no threats to either the child or the Father. Upon hearing arguments from both sides, the learned Judge refused the Father's application as he was not satisfied that there was sufficient evidence to justify ordering the Mother to leave her home again. On 29th July 2000 the High Court proceedings were transferred to the District Court, and on 16th August 2000 they were consolidated with, and have since been overtaken by, the divorce proceedings between the parties.

16.On returning from England, Father and son did initially stay in Parkside Villa under the same roof with the Mother, but later moved out after less than 2 weeks in mid-August 2000 to first stay at a friend's home and eventually settled in a rented flat at Riviera Lodge in Tai Po, whereas the Mother has remained living and running the business in Parkside Villa in Yuen Long. Meanwhile proceedings between the parties in the Family Court were equally fast and furious, with the Father filing an Answer and Cross-Petition for divorce against the Mother on her unreasonable behaviour, and Cross-Applications by each other for ancillary relief. In fact just within the month of August 2000 there were no less than 6 inter-parte summons issued on behalf of the parties, some of which were admittedly for necessary directions as to the conduct of the proceedings, but mostly over disputed matters in respect of their child including his access arrangements.

17.One of such applications, taken out by the Father on 14th August, was for interim maintenance from the Mother to enable him to meet the monthly expenses for himself and M, or in the alternative, for him to remove M from Hong Kong to live in England where they could stay in his parents' home and that he could work to support himself and M. This application was, not surprisingly, opposed by the Mother in particularly as to the alternative part.

18.Another application was taken out by the Mother on 21st August 2000, on ex-parte basis, for an injunction restraining the Father from using or releasing any tape recording on the child to Dr C K Wong, the Social Welfare Officer or any other appointed psychologist unless with her consent or leave of the Court.

19.Apparently the preliminary psychiatic report submitted by Dr C K Wong on 11th June 2000 revealed that he had been given 2 audio tapes by the Father of the Mother screaming and yelling at M in what appeared to be 2 homework sessions in early 2000 without her prior knowledge or consent and upon which she believed Dr Wong had based his conclusion when he recommended that the Father to continue to have the interim care and control of M. She thought that Dr Wong's report was bias and was prepared under unfair circumstances and she therefore sought an injunction restraining the Father from using or releasing any further tape recording on M to Dr Wong or any other expert involved in the case. She also withdrew from the joint instruction to Dr Wong and decided to instruct her own experts.

20.The parties were eventually able to reach a compromise over their contested divorce proceedings by each applying a decree nisi of divorce based on their respective petition and cross-petition, and pending the final determination of their custody dispute, that each was to withdraw $10,000 per month from their partnership business account with an additional monthly sum of $5,000 to the Father for the maintenance of M, plus reimbursements of their medical expenses, the Father's car park fees as well as M's school bus fares. With his financial needs temporarily resolved, the Father therefore withdrew his application to remove M to England.

21.On 29th November 2000 the decree nisi of divorce was granted to the parties with the question of custody adjourned to Chambers for trial. The Social Welfare Officer was directed to submit further investigation report as the first report which was called for in the High Court Proceedings was obviously out-dated and, at the suggestion of the Officer, a psychological report by the Department's Clinical Psychologist was also called for. In the meantime the Mother's access to M was extended, with the Father's consent, to include visiting access on every Tuesday and Thursday in the afternoon after school until 5 pm, and staying access on every Friday from 12:30 pm to Saturday at 5 pm.

22.Not everything concerning M, of course, could be agreed between his parents without a fight. One of which was over the right to spend the Christmas of 2000 with him, when the Mother wanted to bring him to Los Angeles in the U.S. to visit her relatives and the Disneyland, while the Father wanted to spend the holiday with him in Hong Kong. After arguments made by their legal representatives in Court, it was the Mother who prevailed on this occasion.

23.The Further Social Investigation Report together with a Psychological Report prepared by Ms Linda Chew, a clinical psychologist of the Social Welfare Department, were submitted to Court in January 2001 and both arrived at a conclusion different to that of Dr C K Wong in finding the Mother to be a more suitable parent to be given the custody care and control of M.

24.In addition the Mother has also produced reports by Dr Anita C Leung, a clinical psychologist who has been counselling her on childcare matters, and Dr Chung See-yuen, a psychiatist instructed to prepare a psychiatic report on her and the child after her withdrawal of her joint instructions to Dr C K Wong. Dr Chung's report found that the Mother has no psychological problems and disagreed with Dr Wong that there were sufficient features to support a case of psychological abuse by the Mother on M.

25.As for the Father, in addition to Dr C K Wong, a clinical psychologist Dr Calais Chan was instructed to report on the psychological findings of Ms Linda Chew, whilst Dr Wong has submitted several more reports since his first one in June 2000, reporting on various matters concerning M and commenting on the reports of the other experts. He maintained in his reports that the 2 audio tapes depict the Mother's usual inappropriate parenting repertoire, and that his recommendation as to custody remained as before in favour of the Father.

26.I should also mention that in addition to the 2 audio tapes of the so-called homework sessions of M, the Father has also produced another audio tape made by him of an occasion on 19th August 2000 depicting M crying and refusing to see his mother which caused the Father to fear that there was a real problem in the relationship between M and the Mother since their separation. This was of course disputed by the Mother and by way of repudiation she decided to have her next 3 access to M video-taped, the excerpt of which was shown in Court as evidence, as well as a video taken by the Father of M while they were on holiday in England last summer.

27.The trial started in May 2001 during which the parties, their witnesses and all the experts gave evidence and were extensively cross-examined. The evidence was however broken off in July so as to allow the parties to obtain expert evidence from England on whether the 2 "homework" audio-tapes were made from 2 occasions as alleged by the Father, or that they were made up of selected scenes from many different occasions, as suspected by the Mother. Needless to say that the experts, one from each side, were then flown out from England to give evidence at the resumed hearing in late September which finally concluded in October 2001.

The Father's Case

28.The Father says that the marriage had not been a happy one for some time due to the Mother's extremely volatile nature with regular violence towards him including threatening him with a bread knife a few years ago and regularly throwing things at him in temper. The situation became worse in early 2000 when she started to exert psychological pressure on him by regularly telling him that he was useless and that he should leave her to go back to England, and that on 28th March 2000 she threatened to chop him with a meat clearer in the presence of M, frightening him terribly.

29.He became particularly concerned for the safety of his son as the Mother has never been a particularly loving mother and that she rarely showed any affection towards M. In fact she used to be very cruel to him by regularly teasing and tormenting him, causing him to cry and to behave aggressive towards other children at school, resulting in complaints from his school teachers. Whilst she had generally little involvement with M other than cooking his meals and washes his clothes, she was however obsessed with his education by making him do homework every evening from 9 pm to 11 pm since he started kindergarten last year. She would scream and yell at him, and smack and pinch him to cause him to cry. Father had tried to intervene but she would smack M further and told Father to leave the room. Such verbal and physical abuse would continue for 2 hours and he was powerless to prevent it.

30.As a result of stress related problems brought on by his home life, the Father had consulted his doctor on many occasions. On 17th February 2000 he had a particularly serious panic attack and decided to seek assistance from the counselling service of St. John's Catheral. The Mother was then requested to participate in the counselling but she refused. When the Father later produced the 2 "homework" audio tapes to his counsellor, he was advised that the Mother's behaviour as depicted in the tapes might amount to child abuse and that he should seek legal advise. He was then referred to his present solicitors which led to the commencement of the High Court proceedings in May 2000.

31.According to the Father, he used to be the main carer of M in particularly after he had started pre-school as the Mother always stayed up late at night until 2 o'clock in the morning or later, and rarely got out of bed until after 10:30 am or 11 am, whereas he would get up with M every morning at 7 am, give him breakfast, wash and play with him until after lunch when he would take him to and from school.

32.The Father comes from a large and loving family who can readily provide good support for him and M, whereas the Mother has little support from her family with whom M has very little contact. Furthermore, the Mother lacks social and communication skills with few friends, and during most of M's visits at her place, she would just let him stay with her in the flat sitting or sleeping instead of going out for fun or playing with other children his own age. As M is now developing his character, it is important that he interacts with others, but since the Mother is by nature anti-social, the Father is concerned that if M were to live with her, he would lack any normal social life.

33.Although he agrees that M has become more attached to the Mother than before and that she has been able to curb her temper and restrict her physical abuse on M, the Father is still concerned that she may revert to her old ways and M will once again be made to suffer after these proceedings are over, which is a risk that M should not have to be put through now that he has improved in his behaviour, his social skills and at school, and has settled happily under the Father's care.

34.The Father insists that he has no ulterior motive other than to protect M in view of the abuse he was suffering and that he had no option but to take unilaterial action to protect him. He has no regrets over the course of action taken by him as M is now much happier, more sociable and has vastly improved at school which indicates that he did the right thing.

35.Although the Father has since October 2000 taken a part-time job, he says it is only for 4 hours each day which has not affected his daily care for M with the assistance of a domestic helper who is mainly responsible for the household chores. M has been under his proper care for 11/2 years now and he says that this status quo should be preserved by granting him his custody care and control with generous access to the Mother.

The Mother's Case

36.The Mother denies that the Father had ever mentioned to her about any serious problems with their marriage or made any complaints of her behaviour. She says that their marriage life was generally harmonious and their major disagreement stemmed mainly from their different approach in running their business or occasionally over the up-bringing of their son, but on the whole their relationship was normal throughout the years. In fact in the beginning of 2000, the Father even suggested that they should have another child, and that shortly before the High Court proceedings, he had given her a wedding anniversary card and that they had seafood dinner together at Sai Kung. The ouster order which came a few days later was therefore a great shock to her.

37.Mother admits she might have been impatient with M when teaching him homework, which she says was due to pressure from running her household and the business without much help from the Father who was never really concerned about M and spent most of his time getting drunk with his friends in the pub, but she denies ever being abusive to M. She agrees that it was inappropriate and ineffective to scream and yell at M or to press him to do his homework the way she did in the past, but it was only out of her genuine concern and desire for him to do well at school. With the counselling that she has been receiving, she thinks she now has better understanding of her son's needs and in parenting skill to take good care of M.

38.The Mother believes that the Father's allegations against her have all been fabricated, exaggerated or distorted, including the audio tapes produced by him which she suspects have been improperly manipulated to paint a false and misleading picture about her, for the purpose of getting her out of the matrimonial home and with the ulterior motive of gaining control of their business and assets as well as their son M.

39.The Mother argues that she used to be the primary carer of M but that he has been unfairly taken away from her as a result of the ouster order obtained by the Father in May last year, which order she has been advised should never have been made on ex-parte basis with untested evidence. As she now runs her business at home while the Father has to go out to work and to rely on a maid to look after M, she believes she is in a much better position to meet his daily care and needs, and with the support of her family and the continued financial assistance from her father, she believes that the recommendations of both the Social Welfare Officer and the clinical psychologist Ms Linda Chew should be adopted to ensure that justice can finally be done by giving her the custody care and control of M. She also agrees that the Father should be given generous access.

The Law

40.The general principles in relation to the custody or upbringing of a minor child are set out in Section 3 of Guardianship of Minors Ordinance, Cap 13 which apply to any proceedings before any court in that the court :-

(i) shall regard the welfare of the child as the first and paramount consideration and in having such regard shall give due consideration to :-

(a) the wishes of the child if, having regard to the age and understanding of the child and to the circumstances of the case, it is practicable to do so; and

(b) any material information including any report of the Director of Social Welfare available to the Court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the Father, in respect of such custody, upbringing, administration or application is superior to that of the Mother, or the claim of the Mother is superior to that of the Father.

The Issues

41.With the size of the evidence given in this case and the highly charged emotion between the parties, there are not surprisingly numerous matters which are in serious dispute, but basically the major issues can be categorized as follows :-

1. Whether the Mother did abuse M, or behave abusively towards him as alleged by the Father, or did the Father use fabrication, exaggeration and distortion in his allegations against the Mother, with the ulterior motive to get control of their business, their assets as well as their son ?

2. Who was the primary carer of M prior to the High Court proceedings in May 2000 and what were the care arrangements for him in the past ?

3. And ultimately which parent should be given M's custody care and control ?

The Evidence

42.The evidence of the Father is that during the period leading up to May 2000 he increasingly suffered from panic attacks which caused him to attend counselling at the St. John's Cathedral, and that it was during the course of the counselling that it became apparent that the root of his medical problem was the home circumstances. As a result of what he said to his counsellor and the supporting evidence he produced, i.e. the 2 "homework" audio tapes, he was advised to seek legal advice which resulted in the ouster order against the Mother on 2nd May 2000 based on the allegations made against her in his Affidavit sworn on the same day, in particularly those in Paragraph 5 to 11 which are central to the first issue :-

"5. Regrettably our marriage has not been a happy one for some time. My wife has an extremely volatile nature and has regularly been violent towards me. For example she has in the past threatened me with a bread knife which she eventually stuck in a door. This happened about 3 years ago. She regularly throws things at me in temper.

6. She has in recent months exerted considerable psychological pressure on me. She regularly tells me I am useless, that I am nothing and that I am a nobody. She has threatened to leave me and has often told me to return to live in England and never come back. The most recent incidence of this was on 28th March 2000 when I was in our bedroom with M. I told her that I would not leave and certainly would never leave M. She went to the kitchen and returned with a meat cleaver which she banged on a chest of drawers several times saying "If you do not leave this home I will chop you one day, you are making me mental". M and I were extremely frightened but she eventually calmed down. This is only one example of the Respondent's general attitude towards M and me. She has an extremely domineering character, everything has to be as she wants without any consideration for others. For example, she owns a small Shih-Tzu dog which she never allows out of the apartment in case it gets dirty. The dog does all its toilet on newspaper in our bedroom.

7. Over the past few years I have consulted my doctor on many occasions with stress related problems brought on by my home life. Prior to my marriage to the Respondent I was very active in sports. I was school captain in athletics and cross-country running and played rugby for the school 1st XV. But by her behaviour, the Respondent has changed all that. She is regularly very cruel to M. She teases and torments the child, seemingly just to get a reaction. She makes him angry and despite being so young he reacts by hitting her. I have received complaints from M's teacher at school that he is often aggressive towards other children. I am convinced this is as a result of his mother's treatment of him.

8. On 17th February 2000 I had been to the local gymnasium and when I returned home I felt very shaky and pale. I actually thought I was having some sort of heart attack. I went to tell my wife but she just become extremely angry and said she wanted me to die anyway. As a result of this incident I sought assistance from St. John's Catheral Counselling Service. My counsellor contacted L to try to persuade her to take part in counselling. She became extremely angry again and refused to co-operate. I sought assistance from St. John's out of desperation because I cannot allow the situation at home, particularly with M, to continue. However without the cooperation and involvement of my wife in counselling it will not resolve the situation.

9. While I am concerned for my own safety I am even more concerned for the safety of my son. L has never been a particularly loving mother. She rarely shows any affection towards M. She never cuddles or comforts him and rarely plays with him. Rather she is obsessed with his education, which I will describe shortly. Generally speaking her only involvement other than with "homework" is that she cooks his meals and washes his clothes.

10. M attends Ascot pre-school in Fo Tan, Shatin. He starts at 1:00 pm and finishes at 4:00 pm. Our family routine is that I get up with M at about 7:00 am. My wife never rises much before 10:30 am - 11:00 am because she never goes to bed until 2:00 am or even later. I give M his breakfast, I wash and him and then we will play or take the dog for a walk. My wife makes his lunch at about noon and I then take M to school, leaving home at about 12:30 pm. I collect him from school at 4:00 pm and we arrive home at around 4:30 pm by which time my wife is usually out shopping. She usually returns about 6:00 pm and then insists that M has 2 hours sleep while she prepares the evening meal. He awakes at 8:00 pm. He often does not want to have this early evening sleep because he is not tired. She simply smacks him if he refuses to sleep. She will often shut him in his darkened bedroom as a punishment. His reaction to this is to sob and scream but she just ignores him. After dinner he is required to do homework from 9:00 pm to 11:00 pm. If he does not co-operate she will yell and scream at him. She regularly smacks him and until recently she would often pinch him so hard she made him cry. She only stopped doing this when I threatened to report her for child abuse. I feel I should be more insistent and critical of her behaviour, but when I do involve myself it tends to make her treatment of M even worse.

11. When she yells and screams at him for not doing homework I have tried to intervene but when I do she just starts to smack M saying she will continue until I leave the room. Sometimes her verbal and physical abuse will continue for 2 hours and I have been powerless to prevent it."

43.All these allegations were denied by the Mother but according to the Father, the foundation for these allegations can be found in their "purest" form in the notes recorded by his St. John's Counsellor Annette and produced by him as Exhibit R-1 and R-1a. These notes, it is argued on his behalf, starkly illustrated his thinking at that time.

44.Consider the following notes of his 1st visit on 21st February 2000 :-

"N has experienced occasional physical reactions (trembling hands shortage of breath) which has led him to seek counselling. Living with wife (Chinese) and 3 year old son. Finds wife very controlling and abusive, unsupportive "I want you to die anyway". Describes wife as having a terrible temper. Worried about son - she makes him do up to 2 hours homework daily in a very repetitive boring way, sometimes bullying and often pinches him or slaps him. N tries to intervene takes boy out to play etc. He seems to have lost self confidence and questioned if it was normal in chinese society. Clearly N is reacting to a stressful situation and was reassured that his reaction was normal. Seemed terrified at the suggestion that he challenge his wife more. Asked me to phone her to make appointment but wanted it to sound as though it was for him - anxious that she not be upset. He wants to try to change the situation."

45.The notes on his subsequent visits also recorded what the Father had told his Counsellor inter alia the following :-

29th February 2000 :-

Mother rejected counselling, that she was paranoid and constantly accused him of extra-marital affairs, and that he had secretly taped her doing homework with son.

14th March 2000 :-

He had tried being more firm and Mother seemed surprised, but still got upset when challenged. His parents were arriving for son's birthday, and Mother was anxious about it threatening to be rude to them.

11th April 2000 :-

Mother behaviour more extreme. He did another tape, more extreme and abusive with the child crying. His parent's visit upset her. She recently asked him to go back to England. When he refused, her response was to get a meat cleaner and banged it on the table, saying one day she would chop him.

13th April 2000 :-

He had seen lawyer who told him about the legal costs which he said he could not afford and that he would consult another lawyer before proceeding.

27th April 2000 :-

He was going to Court to try to get interim custody order. Mother might be required to leave the flat and he was finding alternative accommodation for her or he and M might have to leave the flat to stay with a friend.

46.It is submitted by Mr Poll, Counsel for the Father, that these contemporaneous records kept by the Counsellor are as close to the truth as one can get to the Father's frame of mind and as to what was really happening in his household in the early months of 2000 and the events leading up to the ouster, as "the accounts given by him are devoid of any solicitor's input or gloss and were not designed to obtain some tactical advantage or legal objective. They represent the confidential and innermost thoughts of a patient undergoing counselling treatment for his increasingly serious panic attacks."

47.This is powerful argument indeed and I do not think there is any dispute by the Mother that these notes accurately recorded what the Father told his Counsellor during those visits. This however does not follow, as is argued by the Mother, that what the Father had told his Counsellor must necessarily be the whole truth. It is necessary to next consider his oral evidence.

48.The Father gave his evidence in a calm and composed manner. He appeared expressionless, but often gave his answer immediately and straightforward. In his evidence he painted a picture of a marriage which had gradually deteriorated since the birth of M as she found it increasingly difficult to cope with the situation as M grew up. She expected too much of him when doing his homework, but on the other hand she infantilised him by making him eat from a high chair, or making him sleep in a cot and wear inappropriate clothes that were too small.

49.According to the Father, the Mother had little understanding of M's needs, that she rarely cuddled him or played with him but seemed obsessed with his homework and revision which he was forced to do for 1 - 2 hours every school night. Increasingly she began to isolate herself from outside contacts and had no contact with her family or friends. He also gave details of her various verbal abuse against him such as :-

"Hard for a normal person like me to live with a mental like you."

"I have a degree. You haven't."

"I want M to be smart, not stupid like you."

50.These remarks, the Father says, clearly demonstrate the Mother's belief in her own superiority and her disregard of his personal feelings or concern, that although he had tried to help M with his homework before the Mother came home from shopping, she would simply rub it out and make M do it again, and she would even banish him from the lounge whilst the homework sessions took place.

51.The Father has called witnesses to confirm some of his evidence. Mr A who was a close friend told how unsociable the Mother was and that he had never met any of her friends. He also commented that on the occasion he had seen the parties with M and their dog, the Mother gave him the impression she had more love for the dog than M.

52.The paternal grandmother, Mrs N, gave her impression of the Mother as short tempered and impatient, that how she on one occasion screamed and shouted at M, and how she punished him by switching off the light and shutting the door behind him. She also mentioned that the Mother would go to bed late at night and how on one occasion that she washed down the patio at 1 o'clock in the morning despite the fact that it might wake up the others.

53.The Mother in her 1st Affidavit of 10th May 200 filed in the High Court proceedings denied all the Father's allegations, particularly relevant are what she said in the following paragraphs :-

"7 I deny that I have a volatile nature or a violent disposition as alleged by my husband. I have never threatened my husband with a bread knife or a meat cleaver or thrown things at him. Those events are made up by my husband. In fact, throughout our marriage, there has never been any fighting or any kind of physical violence between my husband and me. Like other normal couples, my husband and I had quarrels but only occasionally. I have never said that my husband nothing or that he is nobody. Sometimes I said that he was useless when I was under great pressure from work and my husband did not take the initiative to do things. On the other hand, my husband also said that I was useless or that I was a useless mother when I did not know how to do something. I have never asked my husband to return to live in England. It was my husband himself who, during the heat of argument, said that he preferred to go back to England.

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9. I love M very much and never teased him or tormented him or been cruel to him. I have personally taken care of M since his birth in 1996. I have always cooked for him feed, bathed and looked after him. I teach him to do his homework which my husband has never done. I always join M in playing with his toy cars or cooking toys, or playing the teacher-and student game. Since M likes drawing, I have enrolled him in drawing lessons. I have also enrolled him in music lessons for the coming summer. Before M moved to Ascot Pre-school in February 2000, I was the one who talked to his teachers and attended the parents' day of his previous school. I have never received any complaints from M's teacher saying that he is aggressive towards other children as alleged by my husband. Rather, M's teachers have told me that M mixed well with other children. His school report also has similar comments.

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13. M was used to have a nap every afternoon when he attended the previous nursery school. Since M has only attended Ascot Pre-school for 3 months, he has not yet been accustomed to the new routine of not having afternoon naps. I, therefore, let him sleep after school. I have never insisted that M should sleep for 2 hours as alleged by my husband. Further, I have never smacked him or punished him by shutting him in his darkened bedroom when he refuses to sleep. I have also never made M do homework for 2 hours as his school usually gives him only one page of homework to do everyday. I only scold M when he refuses to sit still and do his homework. It usually takes only about 30 minutes and not more than one hour for M to finish his homework.

14. I spank M's bottom only when he is really naughty. I pinched M's ear on 1 or 2 occasions in order to make him understand the danger when he kept on putting his head inside the washing machine after I had told him not to do so many times. On the other hand, my husband, at times, yells at or smacks M when he is also naughty.

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21. My husband's application is really a surprise to me. My relationship with my husband has been normal throughout the years. My husband is used to be a straightforward person but he has never mentioned to me that there is any problem with our marriage. We have never discussed about separation or divorce. For the last few months, my husband has been saying to me that we should have another child. On 9th April 2000, my husband gave me a wedding anniversary card. On 30th April 2000, he took M and me out for a seafood meal. We were having normal conversation seven in the morning of 3rd May 2000 when I was served with the injunction order."

54.The Mother then concluded in her Affidavit that she was worried about the business of their X & Y Company and suspected that the Father had made up all the allegations against her in order to get her out of the house so that he could effectively exclude her from their business.

55.In her 2nd Affidavit filed on 22nd June 2000, however, the Mother appeared to have changed her ground and agreed that they were both aware of serious problems with their marriage, that she knew that the Father was worried about his personal problems including those related to his drinking, use of valium and involuntary shaking. It was at this time that the Mother had issued her petition for divorce alleging that throughout the marriage that the Father had failed to show love and concern for her, that for the last 2 to 3 years he frequently failed to return home until after midnight, inevitably in the pub for heavy drinking sessions, and that despite her repeated pleas not to drink, he continued his alcoholic life-style causing great distress to the Petitioner.

56.It is submitted by the Father that these allegations of valium and alcohol dependency are complete fabrications which are totally unsupported by any other evidence and that they are classic example of the Mother's total disregard for the truth and willingness to lie if there is an objective she wishes to attain. The Mother's evidence given about 2 incidents should shed light on her credibility. First incident was on 22nd May 2000 during her interim visit of M at the clubhouse of Parkside Villa when she was alleged to have called the Father's cousin H a "Bloody Bitch" in the presence of M. The Father immediately through his solicitors complained to the Mother's about the matter. The reply which came several days later was that the Mother denied the allegation and instead accused the cousin of calling her the derogatory name "Chinky". Whilst it is difficult to ascertain the truth of who said what to whom in this seemingly trivial incident without independent witness, if the Mother's version is true, and with her character, one would have expected her to make the complaint first. It seems more likely a case that she just made up the allegation when confronted with the cousin's complaint. The 2nd incident was also the Father's complaint that the Mother failed to telephone M to ask about his well being while he was in England for 2 weeks in July 2000 despite being given his telephone number. The Mother's evidence is that she did telephone on the first 2 days but on both occasions she was told by the grandmother that M had gone out, but when she was asked to produce her telephone bill as evidence of having made those calls, her reply that she made the calls in a public phone and hence there was no record is, to say the least, amazing. The Mother's evidence about these incidents just go to support the Father's submission. In conclusion I agree that the Mother's evidence as to the state of their marriage or their marital relationship during the past few years is inconsistent and contradictory, and I find the Father's evidence on the events leading to the ouster order on 2nd May 2000 much more credible, not just because they are well supported by the records kept by the St. John's Counsellor, but they are also consistent with the findings and observations of clinical psychologist Ms Linda Chew of the parties inparticularly of the Mother.

57.The psychological report of Ms Chew of 8th January 2001 has these observations of the Mother :-

"11. The mother was attentive, calm, and all ready to talk about the details of her recent conflicts with the father. She continued even when I had asked her to stop for a brief moment to allow a technician in my office to attend to something. She became agitated and tearful when she talked about having been removed from home and her son, and seemed eager to make me understand her predicament. She was less forthcoming with part of her personal history, and admitted so when being confronted saying that she thought those things had little relevance here. She kept her mobile telephone on even after I asked her to turn it off when it rang the second time.

12. When seen with the child, the mother was at ease and loving. Like the father, she was also very conscious of the purpose of the interview. During the play session, she talked a lot more to the child and was actively involved in the play, continually giving directives and suggestions as to how to go about the activity. She was eager to teach the child things and to test out how much he knew that she repeatedly asked him "what is this", "what is this for" etc. when he picked up different toys. Like the father, the mother was keen to perform the task assigned and to get the child to comply with her request. She readily made up the excuse that was competing with them and doing the same task outside, in order that the child would finish it quickly. She hurried the child along, but both seemed to enjoy the process."

58.Ms Chew then made the following analysis of her findings of the Mother as follows :-

"22. Owing to the nature of this evaluation, the mother is also found to be not too willing to admit problems. Her personality profile portrays the mother as being self-assured, conceited, self-centred, capricious, and demanding. She values appearances, achievements, and abilities. She is alert, lively, engaging, but can be overreactive, intolerant of frustration, and easily angered and easily enthused. Loud and uncontrollable behaviour is seen at times. Attempts are made to minimise rejection and to earn nurturance and affection. Rationalization is used to diminish personal failures, and conflicts are readily dismissed.

23. The mother regarded herself as being a strong person all along. She did not admit to having much problem in managing the child, but regarded that there had been little emotional and active support from the father. She likened herself to "a superwoman" doing everything at home. She saw the father as being "selfish, uninvolved, and having little long-term planning". However, she was not aware of any major marital problems, but had believed that their arguments had little impact on their relationship. She did not realize that the father did not agree to her child management, but thought that he kept quiet because he knew he was in the wrong. The father's application for divorce had therefore come as a shock to her. She refuted the father's allegations against her and claimed that he had made these up to make her look like a crazy woman. She was convinced that the father was sly and had planned all these to get the child's custody and to beat her."

59.Ms Chew's observation of the Mother readily gives credence to the Father's evidence that she was the controlling and domineering spouse in the family, and that during disagreements between them over the running of their business or the upbringing of their son, it is not difficult to envisage her as being impatient, hot-tempered and even verbally abusive towards her husband. In fact, she has also admitted to shouting at M when under stress, as reported by her counsellor Dr Anita Leung as follows :-

"As to her shouting at M in supervising his homework, she came to be aware of the stress she was experiencing that she was not conscious of at that time. She had been taking care of everything at home and in the family, as her mother did. On top of that, she had to run her business - getting business orders, promoting sales, negotiating with overseas suppliers, sourcing new products, doing clerical work etc. She could not pay full attention to M's work while jumping between other tasks required of her, namely attending to business calls and demands, and preparing lunch. She had grumbled but did not see any response from, nor any help and solution from her husband."

60.The Mother's behaviour towards M in supervising his homework has of course been recorded on 2 audio tapes by the Father which forms the most controversial and contentious part of this litigation.

61.The 2 tapes, respectively called the "P" Tape which lasted about 19 minutes, and the "Q" Tape which was shorter at 13 minutes, show the Mother teaching M to write including the letters "P" and "G" during which she was heard hurrying him along, scolding and screaming at him many times, and M was heard crying a few times.

62.Almost all the experts who have heard the tapes are in agreement that the Mother's behaviour towards M and her teaching method as depicted in the tapes were both inappropriate and ineffective. Dr C K Wong has in fact taken a step further by saying that they in effect amount to psychological abuse. This is what he said in his 1st report :-

"..... The two audiotapes show very clearly that mother was very enthusiastic in teaching M. However, she grossly misunderstood M and regarded him as naughty, inattentive, disobedient and unwilling to learn. In fact, small child of M's age differ widely in their speed of development. "Simple things" like writing the letter "P" are actually often beyond the ability of many such small children. The ferocity of Mother to M is very frightening to M and can be psychologically very damaging to M and to the mother-son relationship. Such ferocity probably qualifies using the concept of psychological abuse.

..... I am of the opinion that although Mother does love M, that although she said she only occasionally scolded M and never for more than a few minutes, I do think it was likely that in the past there were probably certain moments when she had inadvertently but in effect psychologically abused M, and if Father's allegations were true, physically abused him as well ....."

63.This opinion of Dr Wong is however not shared by the other experts including Dr Chung and Ms Linda Chew who says that the results of her assessments done on M do not lend support to the possibility of abuse. Before dealing with this issue, there is the question of authencity of these 2 tapes which was raised during the hearing, as the Mother suspected that they might have been edited or made up of recordings on different days, resulting in the tapes being sent to U.K. for analysis with reports by forensic tape and recording experts produced from both sides.

64.The Mother's expert, Mr C M Mills, the Director and Senior Consultant of Network Forensics, reported that the "P" tape is not a continuous recording for the whole of the 19 minutes and 42 seconds during which it has been interrupted at 3 different points, and that such interruptions are consistent with each other and with the Sony micro cassette recorder (with which the tape was made) being switched out of and back into record, a stop-start action, but that it is not possible to tell how much time elapsed between each stop-start sequence.

65.The report reveals that the recorder in the process of making the tape has been stopped and restarted at 2 seconds, 6 minutes 23 seconds, and 18 minutes and 21 seconds before finally terminated at 19 minutes 42 seconds, thereby effectively dividing the tape into 3 separate sections of which Mr Mills said this in his report :-

"Whilst the recording[s] are being made, movement noise, speech and other background noises can be detected.

Analysis of the 'sound' in the different sections by various means does not give scientifically definable differences such that I could say that the three sections were made under different conditions or at different times. The conditions throughout all sections of the recording are dynamic [constantly changing] such that it is not possible to 'take a slice of time' and determine whether the sections were made on the same day or at different times."

66.Mr Mills concluded in his report that there is no evidence to suggest that the "P" tape is anything other than an original recording.

67.There are, however, several problems, according to Mr Mills, with the other tape, the "Q" tape and its alleged recording machine, a Philips recorder in this case.

68.Mr Mills reported that the "Q" tape has recorded information for 13 minutes 41 seconds with 4 separate interruptions at 2 minutes 49 seconds, 5 minutes 39 seconds, 6 minutes 52 seconds and a major interruption at 9 minutes and 13 seconds. Detailed comparisons of the electronic and mechanical components of the tape however show that the tape was unlikely to have been recorded by the Philips machine. He gave the following technical analysis :-

"The mechanical alignment of the stereo tracks is different [see attached photographs CMM/1 & 2] between the test tape and the 'Q' tape. The electronic and computerised examination of the stop and start functions found at the various points, including the final stop, differ from those created on the test tape recorded in the Philips machine 'P8'.

The differences are such that I find it highly unlikely that the Philips machine 'P8' could have been responsible for recording the 'Q' tape.

The major disruption to the 'Q' tape at 9 minutes and 13 seconds consists of more than a single stop/start function. The final stop function at 13 minutes and 42 seconds correlates extremely well with parts of the major disruption at 9 minutes and 13 seconds. The correlation is such that I conclude that the same machine, but not the Philips machine 'P8' made both actions.

The three other disruptions create a different problem in that they correlate neither with the test tape or any of the other functions described above.

As I do not appear to have the machine responsible for producing the 'Q' tape, it is difficult to identify what function of what machine created the discontinuities now present in the 'Q' tape.

As I cannot 'fit' the 'Q' tape to the Philips machine 'P8', in my opinion there is reason to suppose that some mechanical manipulation of material has occurred in creating what is now the 'Q' tape."

69.Mr Mills concluded in his report that the content of the "Q" tape must therefore be viewed with caution in the light of the difficulties in proving / disproving its originality.

70.After the report, Mr Mills was asked to conduct further tests of the "Q" tape with another recorder, a Kenwood Music Centre provided by the parties, to try to establish the origin of the "Q" tape but with negative result in that he found that the Kenwood machine was also not responsible for producing the original "Q" tape.

71.The Father's expert, Dr C J Storey-Whyte of Audiolex Forensic Tape and Test Laboratory, was specifically asked to examine the tapes so as to give an opinion as to whether they were taken effectively at one sitting or whether they have been edited and represent different occasions.

72.Dr Storey-Whyte found that in both recordings, the background and ambient noise were consistent with the information provided by the Father as to how and where they were said to have taken place, and that no physical signs of splicing or other physical manipulation were found. She also found that there was one significant "break" in each of the recordings and concluded as follows :-

"Both recordings contain one significant break. The characteristics of the break in the "Q" tape might compromise the contention that they were recorded straight through with only pause button or quick on/off breaks; those in the "P" tape somewhat less so.

However, the phrase "different occasions" needs further consideration. "Occasion" can perhaps be defined as "one homework session on one evening". I note that there is a window of two hours ("between 9 and 11 p.m.") given for each recording, which gives a certain scope for unrecorded sequences. In the absence of independent time-monitoring, stopping or pausing a recording session and then recommencing it will not provide any indications of the length of time for which the recording has been stopped. It is noted that each of the separate parts of the recordings is to do with the writing of letters, numerals or characters, and given that the child was 4 years old, some pausing or changing the work focus or emphasis might be expected in the course of one session."

73.Dr Storey-Whyte is otherwise in general agreement with the findings and analysis of Mr Mills in particularly that the "Q" tape was not made on the Philips machine, although she is unable to say whether or not it is the original recording.

74.The Father agrees that he is unable to explain why the "Q" tape produced by him is not the original, but it is submitted on his behalf that in view of the careless way in which the tapes have been dealt with, it is not surprising that the original tape has been mislaid. It is argued that the tape was made in the first instance to assist the Father to illustrate to his counsellor the homework problem, and that subsequently copies were made for Dr C K Wong as well as the solicitors for both sides when no proper register was kept in identifying the original or the copies. This appears to be a plausible explanation.

75.Not so, argues the Mother. She suspects that the missing of the original "Q" tape is a further indication that the tapes have been manipulated or edited by the Father against her. However, apart from pointing out that in the absence of the original "Q" tape there is reason to suppose that some mechanical manipulation of material has occurred in creating the tape, and that its contents must therefore be viewed with caution, neither the Mother nor her expert is able to show or suggest what sort of manipulation that could be made there, or what advantage the Father is able to obtain by keeping the original "Q" tape from her, and what is it that he does not want her expert to find out from the original tape.

76.It is beyond dispute that the Father has produced 1 original tape ("P") and 1 copy tape ("Q"), that neither tape is a continuous recording, and that both have several interruptions which were either short pauses made on the same occasion, as contented by the Father, or breaks made on different occasions, as suspected by the Mother. Either is possible but according to both experts in respect of the original "P" tape, it is simply not possible to take a slice of time from the tape and determine whether the interruptions or the sections were made on the same day or at different times. This then begs the obvious question : If it cannot be done with the original "P" tape, why would the Father want to hide the original "Q" tape and just produce its copy which does not appear to have helped his case at all but may instead cause suspicion ? I am simply unable to find any logical reason for the original "Q" tape not being produced other than the one given by the Father that it has been mislaid.

77.This of course still does not resolve the issue over the interruptions in both tapes and, as submitted by counsel for the Father, it ultimately comes down to the credibility of his account of how he made the 2 tapes.

78.The Father's evidence is that he made the "Q" tape between 20th and 28th February 2000 at about 9 p.m. to 11 p.m. in the kitchen with the Philips recorder while the Mother was teaching M in the living room. He said he was moving about in the kitchen where there were other noises from the refrigerator or from outside the window. He admitted that there might have been one or two occasions when he stopped the recording when he thought Mother was coming towards the kitchen.

79.As regard the "P" tape, the Father said it was recorded on one evening between 27th and 28th March 2000 at again about 9 p.m. to 11 p.m. This time it was recorded on a hand-held Sony micro-cassette recorder in the master bedroom with the bedroom door closed. He also agreed that there might be one or two occasions when the recording was stopped when he thought Mother was coming towards the bedroom.

80.From hearing of the tapes, which I have done on more than a few occasions both during the hearing and for the purpose of this judgment, and from reading the transcripts, I agree with the Father that the first 9 minutes of the "Q" tape are part of the same lesson during which M appeared to be writing the letter "Q". After the 9 minute mark, he appeared to have been running around the room and then started to work on numbers until the end of the recording. It is therefore possible that the Father put the tape on "pause" when M started running around the room and when he became apprehensive that the Mother would come into the kitchen, and that after M had come back to the table, he started to work on a different topic, i.e. numbers, which explains the 2 apparent different sessions. I am not saying that this must be the case, but it is an entirely logical explanation for the interruption heard on the tape and there is no evidence to show it to be untrue. In the "P" tape, M appeared to be working on a particular letter or character up to the break at 6 minutes. After the break M was heard writing the letters through A to G with a much longer concentration on the letter "G". As pointed out by Dr Storey-Whyte, this would not necessarily appear to be a direct continuation of the content before the break, but it is not totally unrelated either. It is also noted by her that each of the separate parts of the recordings is to do with the writing of letters, numerals or characters, and given that the child was 4 years old, some pausing or changing the work focus or emphasis might be expected in the cause of one session, to which I cannot say I disagree.

81.I am satisfied that the Father has given a credible and consistent account of how he made the 2 tapes and that he did not edit or manipulate the recordings the way as suspected by the Mother. The Father's account is in fact supported by the notes of his St. John's Counsellor which clearly show that he was concerned about the homework sessions as early as on the 1st meeting with his counsellor on 21st February 2000 and that the tapes were made for the purpose of his counselling sessions, well before he was even given the name of his present solicitor for legal advice. It is therefore most unlikely that he would already at that stage have litigation in mind and decided to edit or manipulate the tapes so as to "frame" the Mother for the purpose of the later legal proceedings. The notion that his meetings with the St. John's Counsellor were all part of his plan in his litigation against the Mother is simply too far-fetched and is not supported by any evidence at all.

82.The same can also be said about the Mother's argument that the Father made up all these allegations against her in order to get control of their assets in particularly the Parkside Villa Property and the business of X & Y Company. It is argued on her behalf that the way the Father commenced the ouster proceedings without warning was to deliberately take her by surprise, and that his affidavit in support was built on false and deceitful statements intended to mislead because he wanted everything and he wanted it all at once, i.e. the Parkside Villa Property, the X & Y business and M, and that the ouster order of 2nd May 2000 seemed to give him the lot.

83.The Father's statement about how the X & Y business was started is called into question. In his 1st Affidavit he described it as his own business as follows :-

"I have lived and worked in Hong Kong since 1983. In 1993 I started my own business importing and selling / hiring construction equipment. My business which is called X & Y Company is run as partnership with my Wife from my home, although it is really a one man business. My Wife takes telephone messages and keeps the business records. But otherwise the business is run solely by me."

84.Subsequent evidence adduced in the proceedings reveal that this statement is incorrect. X & Y Company was formed by the parties in 1991 but registered first as a sole proprietorship in the Father's name only so that it would not affect the Mother's job with J Engineering. It was later in 1993 that the Company was formally registered as a partnership jointly owned by the parties. The evidence also reveal that the Company's main suppliers were the Mother's clients and that she was the main person to take orders from the customers most of whom speak Chinese. The extent of the Mother's involvement in the business was evidently much more than that disclosed in the Father's 1st Affidavit. In these regards the Father's said statement is clearly misleading and he has never given any satisfactory explanation for making such a statement.

85.There is also evidence that the parties had during the marriage quarrelled over the running of the business and that a business friend of the Father had once proposed to buy out their business which proposal was however rejected by the Mother, which might have further fueled her suspicion that the Father was trying to use the ouster order to take the business away from her control. This argument however cannot sustain on close scrutiny.

86.X & Y Company is registered in the Business Registry as a partnership. It is both in form and substance a partnership with the parties as joint signatories of all cheques of the business account. The Parkside Villa Property is also registered in the Land Office in the joint names of the parties. To say that by simply evicting the Mother from the home would therefore give the Father both assets, or the control thereof, is too simplistic or even naive. The argument that the ouster order of 2nd May 2000 was some Machiavellian move of the Father would inevitably mean that he knew at the outset about the legal effect of ouster order, planned his move by fabricating allegations about the Mother's violence and abuse of M for that purpose, made use of his counselling sessions at St. John's as evidence, and bet on the Mother surrendering everything without a fight or coming to Court for help or relief, is just too far-fetched to be taken seriously.

87.It is true that the Father has inaccurately inflated his role or importance in the X & Y business, and that the way he applied and obtained the ouster order may well be open to criticisms, but I find it difficult to believe that his action was all motivated by his greed for the business or the assets, and not by the various problems he had faced at home.

88.I shall now turn to one of the central issues of the case, i.e. whether or not the Mother has abused M as contended by the Father and Dr C K Wong.

89.There is, as I have said, a conflicting view on this issue amongst the experts and it is therefore necessary to consider their reports in more details. I have already referred to Dr C K Wong's 1st report earlier in this judgment. In his 2nd report of 10th August 2000 he went on to make the following points regarding what he heard on the 2 audiotapes :-

"The question of whether the two audiotapes reflect the exception or the rule of Mother's approach to M : I have briefly described the contents of the two audiotapes in paragraphs 27 to 32 of my previous report. The recording shows Mother teaching M to do homework. The recording was not about Mother chastising M for some unusually naughty behaviour. Human beings are very habit dependent creatures and most if not all of us follow the same behavioural repertoire particularly that related to our daily life. I have no doubt the two audiotapes depict Mother's usual parenting repertoire."

90.Dr Wong then concluded with the following opinion :-

"I wish to recap my professional opinions as stated in paragraphs 34 (i) to (v) of my previous report, i.e. that both parents do love M, and that there is psychological bonding between M and both parents. However, Mother lacks emotional sensitivity and she has grossly misunderstood M's abilities and in that misunderstanding and lack of emotional sensitivity she has adopted a parenting approach in certain moments (say when she was teaching M to read and write) which was highly psychologically damaging to M and to the mother-son relationship. The ferocity of her approach justifies using the concepts of psychological abuse."

91.In his oral evidence Dr Wong also made reference to the contents of the "Q" tape in support of his view that the tapes depict the Mother's usual parenting repertoire when she scolded M as follows :-

"Everyday I do your work and instead of you do it yourself."

"You are to stop playing. I do your homework instead ..... everyday for me doing your homework."

92.In his 3rd report of 8th September 2000, Dr Wong referred to the so-called "Access" Tape made by the Father on 19th August 2000 of M crying and refusing to see his mother on that access occasion which Dr Wong described as M's anticipatory fear towards his mother as indicative of what she had done to him before during the homework sessions. This is what he said in the report :-

"The audiotape lasted 30 minutes. M cried loudly in fear throughout a majority part of the 30 minutes. He only stopped crying over brief periods. He was clearly in severe distress.

It was clearly audible that Father tried to persuade M to come with him to see Mother. Father's tone of voice was gentle and reassuring. For example, Father said that he would be waiting for M to come back, that M would see him on his return from Mother and that Mother loved M. Father also urged M to come with him or else M might be late for the party when he came back.

However, M refused very strongly. He said many times while crying loudly, "I don't want to go", "I don't want to see Mummy". He also begged Father, "No please Daddy, no" in response to Father's asking him to come with him.

Father said he would try to contact Mother and see what she would like to say. M stopped Father from doing so.

Father asked M why he did not want to see Mother. M said quite a few times, "Mummy is naughty." Father did not lead M by asking him any closed questions. Rather Father asked M open-ended questions."

93.Dr Wong then gave his psychiatric opinions on what he heard on the tape as follows :-

That M shows such severe anticipatory fear and that he said "Mother is naughty" in the presence of Father who tried to reassure him that Mother loved him should indeed be taken very seriously.

During my examination on 26 May 2000, I observed that M was willing to approach Mother despite that he did show unequivocal ambivalence to her. In the present audiotape, he clearly feared her. I have to say there has been a clear-cut deterioration in the mother-son relationship.

The reasons to account for such deterioration include the following. First, M had lived with Mother under the same old roof, i.e. the matrimonial home. This probably had stirred up old painful memories. Second, the contact time between Mother and M has greatly increased since mid June 2000. Time and space are important elements of healing for Mother to improve her relationship with M. I would like to warn that too much and too frequent contact between Mother and M particularly in these early stages could be harmful since Mother lacked insight to her problems and difficulties. Third, and related to the second point, I wonder what Mother might have been doing with M during access. M's severe anticipatory fear, particularly since he had already shown an apparently improved relationship with Mother in May 2000, should lead us to think that Mother had probably been doing to M what she might have done before, i.e. an authoritarian approach to making M study."

94.Dr Wong also referred to something being said by M to him in his 4th Report of 24th November 2000 that Mother has smacked and pinched him as further evidence in support of his opinion. He interpreted his observation as follows :-

"While he (M still talked about Mother smacking him, he showed no distress even when he was talking about it. I wish to emphasize that the "smacking" was mentioned by M spontaneously. I did not lead him in any way. In fact, I was chatting with him and playing with him. Father was not with him. He was not playing with any war games or games that might be associated with fighting or bullying. Rather he was playing with gardens and animals in an affectionate manner. It was while he was enjoying such plays that he spontaneously talked about Mother smacking him. However, from the fact that he showed no apprehension, fear, anger or other negative emotions, my opinion is that he was much more likely recalling the past experience of Mother smacking him rather than reporting or complaining Mother now still smacking him. Young children of M's age are unable to make good time sense, in that "yesterday" means anything from the real yesterday to the months ago."

95.At the hearing Dr Wong further pointed out that whether or not the tapes represented continuous sessions or different sessions, it would not affect his view of the tapes because they represented samples of the Mother's behaviour which he thought even 1 minute of it was too long. Dr Wong therefore concluded that all these evidence support the Father's case that M was subjected to daily homework sessions and that the Mother's behaviour as depicted in the tapes represents her usual parenting repertoire.

96.Dr Chung See Yuen, the psychiatrist instructed by the Mother after she ceased her instruction to Dr Wong, however reported that although the Mother has admitted to him that she was irritable when she was taking care of M at times, he does not agree that she has psychologically abused him. He explained in his 1st report of 9th October 2000 as follows :-

"Dr Wong is of the opinion that Madam L has "psychologically abused M" (Paragraph 34 of Dr Wong's report) According to the Procedures for handling child abuse cases prepared by the Social Welfare Department, "psychological abuse is the pattern of behaviour and attitudes towards a child that endangers or impairs the child's emotional or intellectual development. Example include acts of spurning, terrorising or isolating, exploiting / corrupting or denying emotional responsiveness. Such act damages immediately or ultimately the behavioural, cognitive, affective or physical functioning of the child." (Reference is enclosed) I do not agree with Dr Wong that this is a case of psychological abuse because :

The audiotapes depict some unpleasant incidents of Madam L's interaction with M. I believe that the methods used by her as depicted in the tape is not proper. However, this does not suggest this is the usual pattern of interaction between Madam L and M.

It appears that Dr Wong relies on the information provided by Mr N that Madam L usually behaves in the manner as depicted in the audiotapes. This is not agreed upon by Madam L. I believe that Dr Wong needs to investigate the case further to confirm whether Madam L has always acted in that manner.

I have noted from other information that Madam L is looking after M well. For example, the report by Chiu Yu Kam of Child Custody Services Unit dated 5 July 2000 and the videotape taken by a fact-finder.

M is developing normally. There are no indications that his behavioural, cognitive, affective or physical functioning has been impaired.

I believe that there are insufficient features to support a label of psychological abuse in this case."

97.Dr Chung concluded that the Mother was only having mild problems in taking care of M and that counselling would improve her childcare skills. He also agreed at the hearing that many parents in Hong Kong of Chinese origin tend to place more emphasis on their children's scholastic performance, and that it is still quite common to resort to scolding and corporal punishments as a means of discipline.

98.Dr Anita Leung, a psychologist of Dr Chung's clinic who has been counselling the Mother on childcare, agreed with Dr Chung in her psychological report of 12th October 2000 that the extent to which M had been adversely affected by the Mother's way of supervision of homework as depicted in the tapes depend on the frequency and duration of her loss of temper, and how M construed the experience. It is risky, she pointed out, to make any definite assumption by just listening to the tapes without knowing a wider context.

99.Dr Leung also disagreed with Dr Wong that the Mother has psychologically abused M and believed that his approach of the case appears to be bias against the Mother at the outset. She made the following comments on Dr Wong's reports :-

"Dr Wong's approach of the family appears bias against Ms L at the outset. There was no arrangement to see the mother and son alone in the absence of the father. The fact that M had not seen his mother since 3 May for over three weeks, had been ignored. The impact of the sudden separation could be great. A child experiencing separation from a primary care taker usually feels deserted and hurt, and could be angry with the construed deserter. Hence, M's rejecting and ambivalent attitude towards the mother is understandable. After all, when he was asked to embrace mother, he did not resist doing so. This suggested that the mother-son relationship before the separation was positive. If M was really afraid of his mother, he could not have brought himself to mother's embrace.

Paragraph 34 (iii) of Dr Wong's report dated 11 June 2000 referring to the psychological damage of mother's ferocity to M is thus questionable. Dr Wong wrote in the same report (para. 34iv refers), "I do think it was likely that in the past there were probably certain moments when she had inadvertently but in effect psychologically abused M, and if the father's allegation were true, physically abused him as well". In the lack of sufficient evidence, I wonder how and why Dr Wong made such an inferential statement.

Dr Wong commented, "Mother has difficulty understanding or accepting her problems" (para. 33 of the same report refers). He seemed to have overlooked the fact that Ms L had been suddenly thrown out of her matrimonial home and business, and deprived of her parenting role in the past few weeks. She could be confused at the time to be ready to take in new information right away."

100.Dr Leung concluded that according to the guidelines set out in the Procedures for Handling Child Abuse Cases published by the Social Welfare Department, the Mother's shouting at M in supervising his homework could not serve as adequate evidence to establish a child abuse case, and that having wrongly assumed that the Mother had psychologically abused M, Dr Wong's recommendations in his reports are therefore erroneous and should be ignored.

101.It appears that the essential difference between Dr C K Wong on one side, and Dr Chung See Yuen and Dr Anita Leung on the other, on the issue of abuse is whether or not the tape recordings were typical of the Mother's behaviour. It is submitted on behalf of the Father that as neither Dr Chung nor Dr Leung had interviewed the Father and that they were instructed by the Mother have produced somewhat one-side reports which ignore the tell-tale signs of repetitive homework behaviour of "Everyday I do your work instead of you do it yourself."

102.With these conflicting views from 3 experts of the parties, I therefore turn to the more independent Social Welfare Department's Investigation Reports and in particularly those of their clinical psychologist Ms Linda Chew for assistance. Unfortunately neither the Social Welfare Officer nor Ms Chew appeared to have touched on this issue in their report for which Ms Chew was criticised by both Dr C K Wong and Dr Calais Chan.

103.As aforementioned, Dr Calais Chen was instructed by the Father to assist in understanding the psychological findings reported by Ms Chew in relation to the custody dispute. As such he has never interviewed the parties or the child, and that his comments are exclusively based on the relevant reports and materials including the tapes. Whilst agreeing with Ms Chew's multi-source, multi-method approach in conducting her psychological evaluation, Dr Chan found that Ms Chew had a tendency to overlook important findings of her own, as well as others. He reported as follows :-

"For instance, although having recorded clearly in her own casenotes dated 24.11.2000, there was no specific mention in her report about the allegations made by the father against the mother, such as "mother shouting and pinching child every night over homework and meal time"; "mother held a chopper and chopped it on back of computer in front of him and the child."

I am also intrigued by the fact that Ms Chew paid no attention whatsoever to the audio tapes made available to her, depicting the child's display of intense emotional outcry refusing to see his mother, and the volatile (hostile) parenting style of the mother.

I specifically mentioned these examples owing to their potential grave consequences to the physical and emotional well-being of the child, a paramount focus of custody evaluations stated by Ms Chew at the outset of her report. Is it the case that Ms Chew considered the allegations and audio tapes irrelevant or too trivial to discuss in her report ?"

104.In answer to these criticisms, Ms Chew produced a supplementary report in which she confirmed that she did consider all the relevant materials including the audio tapes, but had intentionally chosen not to place much importance on the tapes for the following reasons :-

"Given the nature of custody evaluations, people would usually come up with a lot of allegations and often times very different stories which cannot be verified and are often denied by the other party. I have not "ignored" the two parties' allegations (for the same purpose, I also have not dealt specifically with the mother's account of the father leaving the child unattended in the bath, to quote an example), but I cannot treat these as "undisputable facts" as I cannot adjudicate and I have no way to verify which is a true or truer account. Further to this, it is well know that people can have a different perception of a same event and come up with a different account. I therefore choose to give emphasis to what I had been able to observe during the sessions and the test data.

The tape is a sample of behaviour. I cannot make speculations as to whether this is a typical or an atypical situation, and how much this is representative of the mother's behaviour. The circumstances, the antecedents and what happened afterwards are not known. Even if I were to assume what was happening there represents the mother's typical behaviour, the child's response to the mother does not indicate that he does not want to be close to her. In fact, he has not shown any of the typical symptoms of child abuse victims. (If Dr Wong indeed believes that the child is subject to psychological abuse, I wonder why he had not taken action on this ?) At best, I regard the tape as evidence of the mother having at least at times used undesirable parenting skills, and nothing more. It also demonstrates that the way the mother was taking up most, if not all, household and childcare duties, was creating much stress and having an impact on her."

105.Ms Chew in her oral evidence repeated that her observation of M and the various tests and assessments that she has done on him for her report indicated that he has not been abused by his mother, as otherwise he would not have been as emotionally involved with her or as attached to her as observed.

106.Ms Chew's view is shared by Dr Chung See Yuen and Dr Anita Leung, both of whom agreed that M is developing normally with no indications that he has been psychologically abused. It is pointed out, however, that their views must somehow be qualified by the fact that they have never seen or interviewed the Father, while Dr Chung did not see M at all at the 1st interview, and that at the 2nd interview which lasted much shorter at 45 minutes, it is not clear from his report exactly what assessments he had carried out on M to arrive at his conclusion.

107.More importantly, neither Ms Chew, Dr Chung nor Dr Leung appear to have mentioned or discussed in their reports the significance of some of the Mother's remarks heard on the 2 "Homework" tapes which caused Dr Wong to believe that her behaviour as depicted therein were typical of her usual parenting repertoire, in particularly in view of Dr Chung's comment in his 1st report that it was necessary to investigate the case further to confirm whether the Mother had always acted in the manner as depicted in those tapes, thereby giving an impression that he felt that if the Mother had indeed always acted in such a manner, the problem might be more serious than he thought.

108.Having considered all the evidence before me, I find Dr Wong's analysis of the Mother's behaviour as depicted in the "Homework" tapes helpful and persuasive. I am of course mindful of the confusion he initially had of his role in these proceedings when he mistakenly thought he was appointed by the Court when in fact he was jointly instructed by the parties, which he subsequently discovered and clarified in his 4th report of 24th November 2000 that irregardless thereof, he had clearly explained to the parties his role as their court-appointed joint expert, that his first and foremost concern was their son and his allegiance to the Court, and that he had continued to function in effect as such. I accept his explanation that his mistake was genuine and do not see how this confusion could have affected his observations. At least I have not been shown any evidence to that effect.

109.I am also aware of the criticisms by Dr Leung that Dr Wong may have been biased against the Mother which I have referred to earlier in the judgment, and I agree with her comments in Para 10.1 of her 1st report that the ambivalent reaction and feeling M showed when he saw the Mother at Dr Wong's clinic could well be the result of having separated from her for a considerable period of time since 3rd May 2000 and should not be used as an indication of his relationship or bonding with his mother. I however fail to see how this could show that Dr Wong was wrong or bias in his interpretation of the contents of the "Homework" tapes as it is quite clear to me that they indicate that the Mother had similar difficulties with M's homework on other occasions in addition to those recorded in the 2 tapes, and the evidence is not just in the tapes.

110.Although the Mother denies making M do homework for 2 hours everyday, she has admitted in her own evidence that it usually took M about 30 minutes and not more than 1 hour to finish his homework, and that she only scolded him when he refused to co-operate, and sometimes she would spank him or pinch his ear when he was really naughty. Dr Leung has also found that she had been stressed out by the tremendous demand on her as a full-time businesswoman, housewife and mother when she said these in her 1st report :-

"He (M) changed to study in Hong Kong (Ascot) Preschool / Playgroup in February this year. He went to school in the afternoon, and completed his homework in the morning when the mother failed to pay full attention to him. Ms L had to attend to the business of X & Y, to prepare lunch, and to get M ready to school at the same time. She admitted feeling time pressure in attending to M and different tasks at the same time to have talked loudly to M urging him to do his work right and fast.

:

:

As to her shouting at M in supervising his homework, she came to be aware of the stress she was experiencing that she was not conscious of at that time. She had been taking care of everything at home and in the family, as her mother did. On top of that, she had to run her business - getting business orders, promoting sales, negotiating with overseas suppliers, sourcing new products, doing clerical work etc. She could not pay full attention to M's work, while jumping between other tasks required of her, namely attending to business calls and demands, and preparing lunch. She had grumbled but did not see any response from, nor any help and solution from her husband. After reading the books on parenting, she came to see herself being to anxious to protect her son from being punished by teachers that she expected him to do things well and correct. She confessed that she was insensitive to his feelings at that moment."

111.These observations of the Mother by Dr Leung, coupled with the Mother's own admission that she, like most parents in Hong Kong, places great emphasis and importance on her son's academic performance, which is supported by Ms Chew's portrait of her as being demanding and valuing achievements and abilities, all tend to support the Father's evidence and Dr Wong's interpretation of his observations including those of the "Homework" tapes.

112.If however this was indeed the situation then in early 2000, one must then ask how would it reconcile with M's observed close relationship with his mother ?

113.The answer may be found in Dr Wong's evidence given at the hearing when he explained that in cases where there is no love or care between the abusing parent and the child, then there would be total rejection by the child, but as in this case where the Mother does love and care for M, the child is therefore able to demonstrate a good relationship with his mother, and that it is also human nature for a small child like M to seek care and comfort from his parent, even though he may have been mistreated or abused by that parent. This evidence of Dr Wong was never challenged and I have no reason not to accept it.

114.So did the Mother psychologically abuse M ? I return to the Procedure for Handling Child Abuse Cases laid down by the Social Welfare Department which the experts have referred to and which states that "psychological abuse is the pattern of behaviour and attitudes towards a child that endangers or impairs the child's emotional or intellectual development. Examples include acts of spurning, terrorisming, or isolating, exploiting / corrupting or denying emotional responsiveness, such act damages immediately or ultimately the behavioural, cognitive, affective, or physical functioning of the child."

115.The evidence clearly show that there was a pattern of the Mother's behaviour and attitudes towards M at least during some of his homework sessions. There is no dispute amongst experts that such behaviour is inappropriate and may adversely affect the child if allowed to continue. Having re-heard the tapes, although my interpretation of the degree of ferocity of the Mother's behaviour may not be exactly the same as Dr Wong's, and while it is easy for most parents in our society to accept that it is normal or proper to yell and scream at our children to make them do well with their studies, I must admit that I fully agree with Dr Wong when he said in his 4th report that we must listen to these tapes with the common sense and sensitivity of an ordinary normal parent and with the ears and feels with the heart not of grown-ups but of a 4 year old child. I have no doubt that the Mother's behaviour must have been distressing and frightening to M, and I agree, in conclusion, with Dr Wong that although the Mother does love and care about M, she did in the past in certain moments inadvertently but in effect psychologically abuse him.

116.I wish to emphasize that I never believe for one minute that what the Mother did to M was intentional, as Dr Wong has very carefully pointed out on more than one occasion in his reports, that it was inadvertently done since Mother did not realise what she was doing was wrong. I also fully accept that her situation was exacerbated by the pressure of having to run the business, the household as well as taking care of M at the same time. How much was she in fact involved in the daily care of M during the marriage, and for that matter the Father's involvement as well, are relevant to the issue before me but of course they are also in dispute.

117.It will be recalled that according to the Father's 1st Affidavit filed in the High Court proceedings, the Mother never rose much before 11 am each morning as she never went to bed until 2 am or later, that she only prepared lunch for M in the morning before he went off to school in the afternoon, that she would then go shopping until 6 pm when she would then make M take a 2 hours nap before dinner, followed by the homework sessions from 9 pm to 11 pm. He says her only involvement with M other than with his homework was therefore, generally speaking, that she cooked his meals and washed his clothes, whereas the Father was the one who would wake up everyday with M, clean and prepare breakfast for him, take him to and from school and play with him and keep him company the rest of the time. He says this was therefore not a typical case where the mother would normally be the primary carer, and that in fact he was as much, if not more, a primary carer for M as the Mother.

118.The Mother insists that she was always the main carer of M since his birth. She gave the following description of her role in her 1st Affidavit :-

"I have personally taken care of M since his birth in 1996. I have always cooked for him feed, bathed and looked after him. I teach him to do his homework which my husband has never done. I always join M in playing with his toy cars or cooking toys, or playing the teacher-and student game. Since M likes drawing, I have enrolled him in drawing lessons. I have also enrolled him in music lessons for the coming summer. Before M moved to Ascot Pre-school in February 2000, I was the one who talked to his teachers and attended the parents' day of his previous school. I have never received any complaints from M's teacher saying that he is aggressive towards other children as alleged by my husband. Rather, M's teachers have told me that M mixed well with other children. His school report also has similar comments."

119.Although she denies she would get up in the morning as late as alleged by the Father, the Mother does not seem to dispute much about his other description of the daily routine of M in early 2000. Having heard the parties in evidence as well as grandmother Mrs N, who claimed to have seen the Mother staying up late at night, and as both parties were involved in the same business albeit in different role, the details of which were not necessary for me to go into, I believe that at least during the period of time in early 2000 leading up to May, both parties shared in the daily care of M, with the Mother more involved in his homework and studies, and the Father more in his play and leisure, as in most other families.

120.M has since 3rd March 2001 been in the interim care of the Father, with visiting access to the Mother on weekdays and staying access on weekends and school holidays. He has also since September 2001 changed to the Beacon Hill School which is about 30 minute bus journey from his Tai Po's home. He now goes to school in the morning by school bus which will bring him home at about 1:30 pm when he will be collected by the Filipino maid. According to all accounts, he has done well in his new school, and is developing positively and satisfactory, despite obviously affected by his parents' disputes. The ultimate question is therefore, now that his parents are divorced, should he remain the custody care and control of his father, or should he be vested in the custody care and control of his mother ? Here the opinions of the experts again differ.

121.Both the Social Welfare Officer Mr Chiu and the clinical psychologist Ms Linda Chew also of the Social Welfare Department, who are the Court appointed experts and hence the most neutral in that sense, recommend that custody of M should go to the Mother. The 1st report of Mr Chiu was prepared in July 2000 for the High Court proceedings and is therefore somewhat outdated as to the parties' situation. In this report Mr Chiu was unable to make any recommendation on custody as the Mother asked to have a psychological report by the Social Welfare Department. It is nevertheless useful to note Mr Chiu's remark at the end of the report that " ...... investigation reveals that the child maintains intimate and close relationship with both parents. However, the Respondent (Mother) is stricter in child discipline. She places more emphasis on child discipline and academic performance. I have no doubt that she loves her child but she may not be sensitive to the emotional and developmental needs of the child ......"

122.In his further Social investigation Report submitted in January 2001 together with the clinical psychological report by Ms Chew, Mr Chiu generally adopted the view and recommendation of Ms Chew and agreed that custody should be granted to the Mother but he also strongly recommended that she should receive psychological service to further strengthen and improve her parenting skills. As pointed out by the Father, Mr Chiu has clearly relied heavily on Ms Chew's report.

123.For the preparation of her report, Ms Chew saw the parties separately with M on 4 occasions in late November and early December 2000, in which she adopted a multi-source, multi-method approach including personal interviews, direct observations and that a number of formal psychosomatic tests were administered on both the child and the parties, the details of which were set out at the beginning of the report and not necessary for me to go into, save for the relevant guidelines for the purpose and scope of the evaluation which Ms Chew has very helpfully stated as follows :-

"In child custody evaluations, the "child's best interests" is paramount. Literature suggests that evaluations should focus on parenting capacity, the psychological and development needs of the child, and the resulting fit. For a custody evaluation to be comprehensive and balanced, the father, the mother and the children would be interviewed and assessed, and family interaction data would be collected with respect to reach parent in relation to each child. Of the factors that Parry, Broder, Schmitt, & Saunders (1986) recommend looking at as guidelines in reaching a plan for the custody of children, the following are relevant :

(i) Child-related factors :

the child's age, stage of development and sex;

quality of the child's attachment to each parent

child's preference or wish regarding custody planning

continuity of the child's care

any special physical or emotional needs of the child

(ii) Parent-related factors :

quality of the parent's attachment to the child

parenting style

parent's available time to spend with their child and their child-care plan

parent's emotional state and the impact of this on the child

parent's attitude to the other parent and ability to support the child's contact with the other parent."

124.It would also be useful to set out below some of the more significant findings of Ms Chew :-

"Findings from tests measuring the child's feelings towards his family members indicate that the child regards his father as nice, he loves him and wants to be close to him. He also thinks that the father likes to play with him and kiss him, and regards the child as a nice boy. At the same time, the child likes to kiss his mother, to go out with her, and to play with her. He thinks that the mother loves him, makes him happy, smiles at him, and is nice to him. He denies all negative things about his parents, except that "they make him sad". He depends on the mother for daily physical care, but wants the father to be with him when he is not feeling well or when he is hurt. However, he does not feel ready to go to either of them when he is frightened and to be pampered. While the child is attached to and wants both of his parents, the child is more involved emotionally with the mother and seems more in touch with her feelings. This is evident both in his test data as well as from direct observation of his interaction with the mother. This may be due to the fact that the mother is a relatively more expressive person than the father, and has also been the major provider of care in the child's daily activities."

125.Ms Chew described the Father in her report as "serious, rigid, cheerless, uncreative and unrelaxed. He is fearful of errors or misjudgments, he restrains warm feelings and emotions, and controls his desires rigidly. He prefers polite, formal and correct personal relationships, relationships, is unlikely to open up, and maintains an attitude of controlled interaction with the environment and with others. Suppressing resentment is common, and circumstances that would evoke anger and dismay are handled with reasonableness and maturity."

126.As for the Mother, Ms Chew found her "as being self-assured, conceited, self-centred, capricious, and demanding. She values appearances, achievements and abilities. She is alert, lively, engaging, but can be overreactive, intolerant of frustration, and easily angered and easily enthused, loud and uncontrolled enthused, loud and uncontrollable behaviour is seen at times. Attempts are made to minimize rejection and to earn nurturance and affection. Rationalization is used to diminish personal failures, and conflicts are readily dismissed."

127.In coming to her conclusions and recommendations in favour of the Mother, Ms Chew said this in her report :-

"The present evaluation reveals that the child is attached to both parents and wants them both. He has no strong preference for either parent, is at ease with both of them, and is careful not to take any side or to make any choices. He is relatively emotionally more involved with the mother and wants to have her to render him basic physical care, probably because she has been the one who looks after him in his daily activities in the past. More importantly, the child is found to be saddened and perturbed by the parents' breakup and their constant battle. He does not trust that they can offer him much support given their present state. He hopes that they can be on good terms again and that the family can reunite.

The father seems very disappointed by his marriage, but all along he has avoided to confront the mother and to iron out the differences with her. The mother might also have all along been oblivious to what the father has been going through in the marriage. She claimed that she became aware of their problem only when she was presented with a court order to leave the matrimonial home. It is most unfortunate that the couple's personality differences and disparity in individual values have come to the surface only in the form of a very dramatic and drastic turn in the family. Presently the anger and mistrust the parents have felt toward one another is continued in the custody battle, and no one in the family is spared the anguish.

While I believe that both parents have genuine concern for the child's welfare, this evaluation finds that neither parent is significantly stronger than the other, but each has something different to offer to the child. The father's strength lies in his being controlled, predictable and consistent, thereby allowing the child to feel secure and safe. The mother's strength lies in her liveliness, her spontaneity, and her being affectionate and involved, and this she would offer the child more stimulation and warmth. However, being so engulfed in the legal battle themselves, the parents have not been able to tune in with the child's feelings and offer him the support that he needs so much now. Neither can adequately understand and accept the child's reactions towards their separation and dispute, but both are ready to attribute blame on the other party. Considering the importance of rendering stable, affectionate, and responsive care in particular to young children, the parents have better stop their fight, to learn to work with each other without relying on the court and their lawyers to sort out their disputes, and really attend to the child's emotional needs and spend quality time with him. Should they be able to resolve their differences, their ill feelings and heightened mistrust towards each other, the child should be able to fare well in either household.

Bearing in mind the child-related and parent-related factors quoted at the beginning of the report like the child's age, the quality of his attachment to each parent, his wish, the continuity of his care, parenting style, the parents' emotional state and the impact on child, the fact that the mother has been the major provider of care would make her a more suitable person to continue to render daily care to the child, given the child's tender age, his wish and his more affectionate responses towards the mother. The fact that the mother is now confronted point-blank by the marital breakup about the impact of her emotionality makes it a suitable entry point to work with her to enhance her awareness and self-understanding. She is presently receiving help and the father has reported that she has made changes in her parenting skills. Psychological services would also be recommended for the child to facilitate him to adjust to the drastic change in the family, and to enable him to have an appropriate perspective to view his parents' divorce. The parents would benefit from short-term counselling services to assist them in their understanding of the parts they played in the marital breakdown, and to resolve their bitterness and anger towards each other, in order that they can cooperate better as parents for the benefit of the child."

128.I have already pointed out earlier in this judgment that Ms Chew was criticised by both Dr C K Wong and Dr Calais Chan for apparently failing to pay attention or sufficient attention to the Father's allegations against the Mother of her use of violence or her abusive behaviour towards the child as depicted in the audiotapes. Dr Chan further expressed reservations for Ms Chew's choice of some of the projective tests she used for her report as not very reliable or appropriate for making recommendation for child custody decisions, and that at best they can only be regarded as preliminary tools for gaining initial clinical impressions.

129.Dr Chan further pointed out the fact that the Mother had "zero" scores on 2 of the major validity scales of the MCMI-III tests namely the Disclosure Scale and the Debasement Scale is striking as an extreme case of complete denying personal faults and problems on her part which "has clear relevance of throwing light on her attribute toward testing and evaluation in general, as well as casting doubt on her truthfulness in disproving accusations made by her husband." Dr Chan is therefore of the opinion that the tendency of the Mother to unanimously deny all accusations levelled at her should not be emphasized and accepted too readily by Ms Chew, given her's prominent defensive style, as similar defensive response style has also been shown consistently in her Defensive Responding Score on the Parenting Stress Index which has however not been reported by Ms Chew either.

130.In contrast, Dr Chan reported that the tests showed the Father in a more favourable light when he obtained relatively higher scores on the Desirability Scale and average scores on the Disclosure and Debasement scales, showing much more willingness to disclosing problem areas and admitting personal difficulties, but which Ms Chew failed to place sufficient weight in arriving at her conclusions.

131.Although Dr C K Wong concurred with some of Ms Chew's findings and observations about the parties, in particularly of what he called the fundamental traits / behaviours of the Mother which still cause him concern, such as her tendency to become agitated and emotionally upset, that she is achievement and performance oriented regarding her approach and interaction with M, that she is insistent about M's doing things quickly and that she shows a lack of emotional sensitivity in her interaction with Ms Chew, such as her refusal to switch off her mobile phone despite Ms Chew's request, he however strongly disagreed with Ms Chew's recommendation on custody and refuted her rationale in his 5th report of 26th February 2001 as follows :-

"First, "quality of relationship". Based on thorough and repeated observation, my conclusion is that the quality of the father-son relationship is much better than the mother-son relationship. I wish to stress that that conclusion does not refer only to the moment when I assessed the two relationships but rather to the on-going relationship from the past to the present. Second, "continuity of care and major provider of care". At least from May 2000, the continuity of care is provided mainly by Father rather than by Mother. And if Father's claims are true (and I do not mean I dispute Father's claims), in the past it was Father who was the care-giver. Third, "parenting style". As I have emphasized in all my previous reports, the parenting style of Father is better than that of Mother. Fourth, "M's wish". As I have stressed, I do not think small children of M's age should be asked about their wish. Rather it is up to the adults to insightfully and accurately ascertain who is the better parent. Based on my observation of M, I am of the opinion that he would much rather be with Father than Mother. Fifth, "parents' emotional state". In my opinion, Father is much more in touch with his emotion and has much better self-appraisal than Mother. On the contrary, Mother until now still does not admit her parenting problems ......"

132.Dr Wong concluded in his report that he saw no difference in his role from that of the Social Welfare Officer or Ms Chew with M's short and long term interest as his utmost concern, and that based on his own assessments and observations of all the information and materials available including the audiotapes and the reports by other experts all of which he has considered and commented, but which Ms Chew seemed not to have, he recommended that the Father should be granted custody care and control of M instead of the Mother.

133.Whilst one may agree with Ms Chew in her supplementary report in answer to criticisms that it may be difficult for her to adjudicate or verify some of the allegations raised by the parties against each other, the fact that she did not mention or discuss them in particularly those which were in the centre of the dispute or the main cause of the litigation, such as the Mother's temper and her behaviour towards M during the homework sessions in her 1st report before reaching her conclusions and recommendations perhaps justifies criticisms from Dr Wong who has pointed out that as much as 80% of psychological analysis and evaluation should come from background information and history, and it is simply not enough to rely mainly on personal observations or test results. After all, it is what happened in the past that led to the evaluation.

134.Furthermore, some of the tests results on the Mother showing a high degree of unwillingness or openness to acknowledge personal faults and problems should have assisted Ms Chew to find out, in her own words, which is a true or truer account, or at least enough to cause her concern when considering whether the Mother should be given custody. Given the Mother's tendency to deny faults and her defensive style as revealed by the tests, I do admit of having considerable difficulty following Ms Chew's conclusion that the Mother has been the major provider of care for M, since this is clearly disputed by the Father and Ms Chew appeared to have preferred the Mother's words without giving any reason or explanation for her preference. The evidence before me does not in fact support Ms Chew's conclusion.

135.I also have concern about some of Ms Chew's observations of the Father as being rigid, cheerless, uncreative and unrelaxed, and that he restrains warm feelings and emotions, and of the child being more affectionate responses towards the Mother, all of which are in stark contrast with Dr C K Wong's observations in which he found the Father, although an introverted person, has deep feelings in his interaction with M who is much more at ease and emotionally attached to his father than his mother to whom he showed unequivocal ambivalent feelings, for which Dr Wong questioned how Ms Chew interpreted her findings and suggested perhaps her insufficient rapport with her subjects or lack of thorough understanding of the parties as the reason for such discrepancy.

136.It is true that Ms Chew did spend a lot less time with the parties for her report, all within the span of 2 weeks between 24th November and 8th December 2000, than Dr Wong did, at least in the case with the Father and M, when he had had the advantage of being able to observe the parties as early as almost from the start of the litigation in the High Court in mid-May 2000, and was thus afforded more opportunity to observe and follow the development and evolution in the parents / child relationship. This is not to say that this should necessarily make Dr Wong's findings more reliable, but it is nevertheless a significant advantage and a relevant factor. For the various reasons given above, I find that I have difficulty agreeing with Ms Chew's conclusion, and for that matter the Social Welfare Officer's as well, that the Mother is a more suitable person to be given custody care and control of M.

137.Dr C K Wong's reports were of course not without criticisms from some of the other experts, especially from the Mother's side claiming that he was biased against her, such as his initial mistaken belief that he was the Court-appointed expert, his listening of the "Homework" tapes provided by the Father without first obtaining her consent, his failure to take into account of the traumatic experience of her being evicted from her home and separated from her son when making psychological evaluation on her and her relationship with M in his 1st report, and that such evaluation was conducted under unfair circumstances as Dr Wong had never observed her interaction with M alone without the presence of the Father.

138.I have already found earlier in this judgment that there could not be any bias caused or created by Dr Wong's mistaken belief that he was the Court-appointed expert instead of jointly-appointed by the parties. Nor can I find any evidence to suggest bias against the Mother when he received and listened to the audiotapes provided by the Father without the Mother's consent, which is no different from receiving or hearing any allegations from the Father's mouth against the Mother and vice versa. Dr Wong has properly explained in details both in his reports in particularly his 2nd report how he used all the materials and informations including the tapes provided to him in his assessments of the parties, and in his oral evidence of his psychological analysis of the Mother's behaviour as what he heard in the tapes and his basis and reasons for arriving at his conclusion which may not be agreeable or acceptable to the Mother or her experts, but I do not see how he can be said to have been biased against her.

139.I do however agree with Dr Anita Leung when she pointed out in her report that M's ambivalent feelings towards the Mother as initially observed by Dr Wong might have been due to the fact that he had not seen her for a considerable period of time after she was evicted from home. It should however be noted that it was only Dr Wong's preliminary finding and that it was not the main cause or reason for his conclusion and recommendation that custody should be granted to the Father.

140.I am also not entirely convinced by Dr Wong's suggestion that M's crying as heard in the "Access Tape" recorded on 19th August 2000 indicated his severe anticipatory fear to seeing his mother or that such fear was the result of the Mother again taking an authoritarian approach to making him study, as she had done in the past. I of course do not dispute this possibility, but it is also a fact that M went on a holiday with his Father to England for 2 weeks in July 2000 during which he had no contact with his mother, and prior to the trip his access with his mother had been smooth. The access on 19th August 2000 was to be the 1st access since the trip, it is therefore possible that the lack of contact with his mother for more than a month may have something to do with M's behaviour on that day. I am not suggesting this must necessarily be the reason as I am no psychological expert, but this fact was not known to Dr Wong when he prepared his report, and in view of the stormy background of the case which obviously had had a great impact on M, it was something which Dr Wong perhaps should have looked into more closely before coming to his conclusion.

141.I however agree with Dr Wong's opinion about the foundamental problems in the Mother's parenting skill and his concern whether she has been able to improve on such problems through counselling over the intervening time. It is pertinent to set out herein his opinion :-

"Both parents love M. However, they differ in one crucial aspect : emotional sensitivity. Father is far more emotionally sensitive to M whereas Mother is rather deficient in this important quality. By emotional sensitivity I refer to the ability of parents to see, hear and feel through their children's position as if they were their children. Emotionally sensitive parents are also strong in empathy. A common problem and reason why many "loving" parents fail to be successful parents is because they strongly believe they do love their children, and yet because they lack emotional sensitivity they often misunderstand their children and also frequently say and do things that hurt their children and damage their parent-child relationship. The two audiotapes show very clearly that Mother was very enthusiastic in teaching M. However, she grossly misunderstood M and regarded him as naughty, inattentive, disobedient and unwilling to learn. In fact, small children of M's age differ widely in their speed of development. "Simple things" like writing the "P" are actually often beyond the ability of many such small children;

The ferocity of Mother to M is very frightening to M and can be psychologically very damaging to M and to the mother-son relationship. Such ferocity probably qualifies using the concept of psychological abuse. Again I wish to stress that I have no doubt Mother does love M. However, love is not enough. Love without emotional sensitivity is paradoxically probably the biggest stumbling block to successful parenthood;

In the light of the above findings and opinions, I am of the opinion that although Mother does love M, that although she said she only occasionally scolded M and never for more than a few minutes, I do think it was likely that in the past there were probably certain moments when she had inadvertently but in effect psychologically abused M, and if Father's allegations were true, physically abused him as well. I am fully aware I have used very strong terms. I do so because I earnestly wish Mother would really understand and accept the severity of her problems. This is particularly important as M clearly shows that he is emotionally attached to her as well (albeit in an ambivalent way). Mother should really seize every opportunity to rebuild a strong and positive relationship with M. Without admitting and understanding her problems and difficulties, the chances are that she will continue to inadvertently hurt M and damage her relationship with M; and I do not think up to this stage Mother has understood or accepted her problems in how she conducted herself as a mother."

142.That the Mother did not fully understand or appreciate the problems has been confirmed by her counsellor Dr Anita Leung in her 1st report. In her 2nd report of 22nd February 2001 Dr Leung reported improvements by the Mother, that she has come to admit her quick-temper and that she has learnt to handle M more patiently and sensitively. Dr Leung concluded that there was no big problem in her childcare approach and that counselling on childcare should no longer be compulsory for her, but that it was desirable for Mother and Child to receive counselling and play sessions to help them live through the current life changes, the associated distress and uncertainties.

143.Although Dr Wong has not seen the Mother after she broke off her instructions to him in August 2000, he still has his reservation about her after reading the various reports from other experts whom he believes to have underestimated the magnitude of the Mother's problems. He made his point in his 5th report of 26th February 2001 when he commented on Ms Chew's observations of the Mother as follows :-

"I find these two paragraphs (of Ms Chew's report) very informative. Despite all the counselling Mother has been receiving, it seems that some fundamental traits / behaviours have remained unchanged, i.e. (i) she tends to become agitated and emotionally upset; (ii) she is achievement and performance oriented regarding her approach and interaction with M; (iii) she is also insistent about M's doing things quickly; and (iv) she shows a lack of emotional sensitivity in her interaction with Ms Chew. I can see contradiction in Mother's behaviour which Ms Chew does not seem to see. With the four observations I have just made regarding Mother, I do feel I have reservation about Ms Chew's observation as stated in her paragraph 12, "...... mother was at ease and loving". Mother was conscious as Ms Chew herself has stated in her paragraph 12) of the purpose of the interview. It was only natural that Mother tried to perform her best before Ms Chew by being "at ease and loving". It is up to the expert to "read between the lines" and formulate a correct picture and understanding of Mother."

144.At the hearing Dr Wong emphasised in his evidence that certain fundamental traits and behaviours of a person cannot be changed easily over a short time. He does not believe that despite counselling, the Mother has so far been able to fully understand her problems without which there cannot be significant improvement in her parenting skills.

145.M has since 3rd March 2001 being living with the Father and under his interim care and control, with interim visiting access on weekdays and staying access on weekends as well as school holidays to the Mother. It is submitted on behalf of the Father that this present arrangement whereby he has custody with generous access to Mother should continue as it satisfies all the following criteria :-

1. That the present status quo should be preserved as it provides a continuity of the child's care as the Father has looked after him since May 2000;

2. That under the present arrangement has proved to be workable as the Father has provided M with a controlled and predictable environment to which he has responded by doing well at school, and that there is greater freedom and opportunity for M to explore and grow up to make friends and interact socially with other adults and his peers than it would be if he were under the Mother's care;

3. That the Father has successfully moulded his life around his son and proved himself to be a conscientious and capable parent fully able to cope and successfully deal with the various factors pertaining to M's age, sex, background and characteristics;

4. That none of the experts has suggested that the Father is not capable of properly looking after M, and that his conduct and behaviour toward M has not been criticised. In contrast, each of the experts has been critical, to varying degrees, about the Mother's handling of M, and that they were all of the view that she needed professional guidance and counselling to improve her parenting skills. There is however evidence to indicate that even with counselling, the Mother has not really changed and deep down she is still unable to accept any wrongdoing on her part, and that it would both be unnecessary and reckless to take a risk with M's welfare to give the Mother custody on the basis of a possibility that she may be a slightly better choice.

146.With the facts and evidence before me, the Father's submissions are indeed powerful and persuasive. As pointed out by Ms Chew, neither parent is significantly stronger than the other but each has something different to offer to the child, whilst the Father's proposal would mean that there will be no change or disturbance to the child so that he can continue to enjoy his present settled and stable lifestyle and environment.

147.It is however argued on behalf of the Mother that the present status quo of M i.e. in the care of the Father, was the result of the Court being led into serious error when it granted the ouster order against her on 2nd May 2000 thereby in effect taking M away from her and giving the Father the advantage of having his de facto care and control the past 11/2 years, and hence the Court should now do justice to the Mother by restoring M to her custody. Much as I am sympathetic to her plight and in particularly of the way she was told to leave her home and her son whom she was then kept from any contact for about 2 weeks thereafter, and although I agree that the Father's court actions in May 2000 is certainly open to criticisms, however, as Ormrod LJ said in the case of S(BD) v. S(DJ) (1977) 1 ALL ER 656 at 660, CA, the question is not what the essential justice of the case requires but what the best interest of the child requires, and having considered all the facts and evidence before me, I have come to the conclusion, a most difficult one indeed if I may add, that it is in the best interests of M that he remains in the custody care and control of the Father. I say this not just because I agree with the Father's submissions but also because of my concern that the Mother may not have fully understood her problems and the insufficiency of her parenting skills and methods. I agree that she has shown some improvements through counselling by Dr Leung over the past year or so, and it is my sincere hope that she will continue to improve as I am without any doubt that she loves and cares about M as much as the Father, but as pointed out by Mr Poll, Counsel for the Father, if M were to live with the Mother, she will have to face the same problems as before, i.e. to manage her business, run her household and take care of M at the same time, and it will be without the assistance of the Father and with M going into primary school soon with naturally more homework, there is serious concern that she may not be able to cope and revert to her former behaviour. It will certainly be irresponsible of me to expose M to such a risk given the circumstances of this case.

148.It will of course be in M's interests to maintain close contact with his mother in the hope that their bonding and relationship will continue to grow and flourish. In view of the fact that at present the Father spends little time with M after school in the afternoon due to his work, and to nurture mother / child relationship, I believe that the Mother's present 2 weekdays access to M should be increased to 3 days, i.e. on Monday, Wednesday and Friday after school to 5 pm instead of Tuesday and Thursday under the present arrangement. The current staying access arrangements on every weekend and half of M's school holiday should of course continue. This arrangement will in practice enable the parties to share more or less equal amount of real and quality time with M, thereby giving effect to what all the experts have universally agreed and hoped that each party will have something different and beneficial to offer to M which will no doubt be in his best interests. It is my sincere hope that with the help of counselling they will soonest set aside all their differences and work together towards the welfare of their only son, so that perhaps one day they can share his custody in the real and legal sense.

149.At the request of the parties, I will not decide on the question of costs in this judgment, but I wish to return to the questions raised at the beginning of this judgment when I queried the amount of legal costs incurred by the parties and the way this litigation had been conducted. I have no doubt in my mind that the total legal costs of more than $5 million spent in this case is wholly unacceptable, and I am convinced that had this case not started out the way it did in the High Court in the form of a draconian ouster order by the Father, followed by committal proceedings against the Mother, that this case would not have gone the way it had, and at some stage even appeared out of control, for which I must admit that I should bear some of the blame as I had the ultimate control or management of the case, at least in the part relating to the divorce proceedings in the Family Court, and that otherwise this would have been an unremarkable case as pointed out by Mr Clough for the Mother, in the sense that there would be the normal timetable and usual discovery and enquiries instead of the complexities it had degenerated into, and I have to agree with him that this was caused mainly by the Father's conduct of the proceedings, or by his solicitors on his behalf, which is amply evidenced in the Bundle of Correspondence between the parties' solicitors produced to this Court, such as his refusal to let the Mother see or even talk to M after she was evicted by the ouster order until the hearing of the inter-parte summons some 10 days later, the insistence of being given 24 hours notice before she could make any application for access, the accusation that the Mother was molesting or disturbing M in breach of the injunction when she was simply trying to talk to him, and the attempt to commit her for contempt of Court for breaching her undertaking relating to the business accounts, to name just a few examples. All these certainly did not help to solve any problem but just add fuel to an already highly charged and acrimonious situation as by then any chance of the parties willing to mediate or negotiate to settle their disputes would have all but destroyed. Such unyielding and aggressive attitude and behaviour have no place in the Family Court, and most certainly not in a matter where the delicate interest of a small child was involved. It is indeed a miracle that M has not suffered any serious or long term damage by his parents' actions. The Mother's later refusal to accede to the Father's request to attend mediation and her suspicion of the Father's motive in these proceedings certainly did not help either, but one cannot really blame her too much after what she had been made to go through. I can only hope that practitioners in the Family Court would exercise a lot more good and common sense in their conduct of their clients who are after all only ordinary normal people unfortunate to be going through some of the most difficult crisis of their life and are in need of proper understanding and help, and not some bitter enamies out to destroy each other as the parties in this case appeared to have been turned into. Lawyers do have a duty, both morally and legally, I dare say, to prevent this to happen. Lastly, I wish to express my gratitude to all the experts involved for their valuable assistance given in this case and in particularly to Counsel for both parties whose conduct in the trial was, in stark contrast, most reasonable, civilized and exemplary in this most difficult case.

150.My order is therefore as follows :-

1. Custody care and control of the child M to the Respondent Father.

2. The Petitioner Mother shall have the following access :-

(a) Visiting access on every Monday, Wednesday and Friday after school to 5 pm;

(b) Staying access every weekend as follows :-

(i) during school term from Friday after school to 5 pm following Saturday;

(ii) during school holidays from 10 am Friday to 5 pm following Saturday.

(c) Staying access for half of school holidays.

3. Costs reserved. The Respondent's own costs to be taxed on Legal Aid Regulations.

151.I shall next hear argument on costs and / or the question of ancillary relief.