Whlh v. Ckw
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FCMC No. 1415/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 1415 OF 2009 ---------------------------- BETWEEN
---------------------------- Before : HH Judge Bruno Chan in Chambers Date of Hearing : 25 – 28 January, 19 – 21 April, 5 May and 14 July 2011. Date of Judgment : 25 August 2011. ------------------------ J U D G M E N T ------------------------ 1.This is the parties’ contested application for custody care and control of their only child, K, a son born on 19th September 2003 and who will be 8 years old in about a month’s time. He has since his parents’ separation in about 2009 been under the sole care of the Petitioner Mother, but is at present staying with the Respondent Father for his summer access. 2.While both parents have to work, the Mother, aged 35 has a much more flexible working hours as an insurance agent, while the Father, aged 41 works as a full-time taxi driver after being laid off his engineering job 2 years ago, and with a small child who has been diagnosed with borderline developmental delay with speech problems, and requires more parental cares and regular therapy and training, one would have expected a more straight-forward case for him to remain under the care of his mother now that his parents are divorced. Or so I thought. 3.Instead, and unfortunately the case had dragged on for more than 2 years due mainly to the intractable disputes between the parties over the Father’s access to the child, resulting in numerous court hearings, wasting court and public resources as both parties are on legal aid, and bringing nothing but misery and frustrations to the parties and emotional trauma to their child, for which it would be fair to say that most of the blame must lie with the Mother, and which I believe has led many of the social investigation reports and psychological reports submitted in this case to question her parenting ability and to propose that in would be in the best interests of the child in the long run to be put under the care of the Father instead. That was of course not agreeable to the Mother, hence the trial had had to run its full course which lasted 9 days in total. Background 4.The parties first met in 1993 while working in the same company, and eventually married on 8th September 2000. The Father was then an electronic engineer after graduating from Hong Kong Polytechnic University, while the Mother was an account clerk upon completing her secondary education. After the marriage they continued to work and moved to live in Tai Po in 2002 where the child was subsequently born. Shortly thereafter the Mother was suspected of suffering from post-natal depression and the parties started to receive family counselling for their marital problems. In about 2005 the Mother was referred to Pamela Youde Nethersole Eastern Hospital for psychiatric treatment. 5.Perhaps due to the Mother’s condition, the parties decided to move back to Chai Wan later in the same year to be near to their respective family for support and assistance as to child care, when the Mother returned to work as an account clerk albeit on part-time basis, while the Father’s job required him to spend part of the week in China. In 2007 the child also started to undergo regular speech therapy and training at the Hong Kong Christian Service Wan Tsui Early Education and Training Centre. 6.Sadly marital relationship between the parties did not improve and according to the Father they had since 2006 been sleeping apart from each other. Soon he also required psychological counselling for depressive symptoms until about 2008 when his condition improved. The marriage however started to unravel when the Mother suggested divorce in late 2008. Matters certainly did not help when the Father was then laid off by his employer in January 2009 and could only find work working as a part-time driver earning much less than before. By then the Mother has also changed her job to insurance agent with irregular income. 7.On 7th February 2009 she issued a petition in these proceedings for divorce based on the Father’s unreasonable behaviour, and for custody of the child and general ancillary relief. On 5th May 2009 she applied for interim custody of the child and also for interim maintenance for them. At the hearing on 8th May 2009 the Father opposed the application and indicated his intention to contest custody of the child. The hearing was therefore adjourned for the 1st of the many social investigation reports to be filed in these proceedings. 8.Shortly thereafter in June 2009 the Father moved out of their matrimonial home in Chai Wan to live with his father and elder sister in Fullview Garden, Siu Sai Wan. The Mother soon also moved with the child to a rented suite in Chai Wan upon the expiration of the lease of the matrimonial home. 9.The Father then filed an answer to the petition on 29th June 2009 disputing the Mother’s allegations as to his behaviour and also cross-petitioned for divorce on the ground of 2 years separation between them, and as noted above also for custody of the child and general ancillary relief. 10.On 10th July 2009 the 1st social investigation report was submitted to court and suggested, subject to a psychiatric report on her mental condition due to her depression, that the Mother be granted the interim custody of the child. At the hearing on 17th July 2009 I directed that a further social welfare progress report on access and a psychiatric report on the Mother be submitted by the end of August 2009, that the child do remain in the interim custody of the Mother, and granted the Father interim visiting access to him for 4 hours on Tuesday evening and 8 hours on Saturday afternoon, with staying access for 1 night on alternate weekend, and also ordered him to pay HK$1,000 per month as interim maintenance for the child on the basis of his limited income disclosed in his Financial statement, which means that the Mother has had to subsidize her income with social welfare assistance. 11.The social welfare progress report submitted on 28th August 2009 revealed some problems with the Father’s access initially due mainly to the Mother being late bringing the child to the designated place for his access or her failure to appear at all, but that the child did have a good relationship with his father and was able to enjoy those access which did take place, and recommended that the Father’s access should continue on clearly defined terms as to time and place to avoid further conflicts between the parents. 12.The psychiatric report on the Mother from Pamela Youde Nethersole Easter Hospital (“PYNE Hospital”) however revealed more serious problems about her mental state including past suicidal attempts and violent behaviour, resulting in her being admitted into the psychiatric ward of the PYNE Hospital for a week in January 2009 with follow-up regular consultation and medication, but was later involved in a fight with some MTR staff in an incident in April 2009 for which she was arrested by the police. The report concluded that she has suffered from depression and dysthmia and required regular treatment, but if she were to remain mentally stable, she should be capable of childcare on her own, although it would recommend that there should be regular supervision by social worker and community psychiatric nurse. 13.Perhaps following up on the recommendation of the social welfare progress report, the Father on 3rd September 2009 applied and obtained additional weekend visiting and staying access to the child pending the final determination of the custody issue. 14.However, notwithstanding the said order was made by consent, the Father continued to experience problems accessing his son and therefore brought the matter back to court on 5th November 2009, when the Mother put the blame on the child’s various activities and her misunderstanding of the place and time for access. Upon hearing the parties I re-defined the Father’s access with visitation on Saturday from 10 am to 8 pm, followed by staying access on the following Saturday from 10 am to Sunday 10 am on alternate week basis, and called for a progress report to be submitted by the end of the year. 15.The progress report dated 30th December 2009, this time by a different social welfare officer after the first officer had been transferred to a different office, revealed that the Mother was no longer amendable to the Father having any form of access for various reasons such as the child would get sick after access, that the Father had not taken proper care of him, and that his access time clashed with the child’s extra-curricular activities. Nevertheless the report suggested that the access arrangement should remain in place but that it would be helpful to obtain a further psychological report on the Mother’s condition due to the stress that she claimed she had been put under by these access problems. 16.After further unsuccessful attempts to exercise access to his son, the Father took out committal proceedings against the Mother on 26th April 2010, and it was during the hearing of the committal proceedings on 8th June 2010 before me when the Mother agreed that the Father was to have staying access to the child during his summer school break from 13th July to 28th August 2010. An order was accordingly made and the committal proceedings were by consent adjourned sine die. For obvious reason I also directed that a further report be submitted by the end of August 2010. 17.On this occasion the said summer access arrangement was in the main carried out successfully and to large extent with the cooperation of the Mother, albeit probably for the wrong reason, of which will be apparent later in this judgment, until towards the end of August 2010 when the child was reluctant but eventually did return to the Mother, which seems only natural given that he appeared to have very much enjoyed his stay with his father. 18.This was confirmed by the further social welfare report dated 31st August 2010, but it also revealed that the Mother had during the interval unsuccessfully tried to get the Father to reconcile with her, and indicated again to the officer that she would not agree to the Father having any more access in future if she was granted custody of the child. For various reasons given, the details of which no doubt will be examined more closely later in this judgment, the report went on to conclude that it would be in the best interests of the child that his custody be granted to the Father, with reasonable access to the Mother, which is clearly a change in its recommendation, albeit this time by a different officer. 19.This was of course not acceptable to the Mother and, perhaps as a result, that summer was to be the last occasion when the Father was to have any successful access to his son before the trial, as since September 2010 the Mother had again put forward various reasons that access could not or should not take place such as the child was sick or was busy with school or extracurricular activities, or that the Father had failed to take proper care of him during previous access, and confirmed at the beginning of the trial that because of his failure to be financially responsible for her or the child after their separation, and his inability to take proper or adequate care of the child, that the Father should not be given any access in future either. 20.The Father obviously insisted that he was well capable of taking proper care of his son, and that the Mother had fabricated all these allegations just to alienate him from his son, he therefore again asked for staying access to the child during his summer break in July 2011, and after hearing the parties’ submission on 14th July 2011 and despite the fact that the Mother’s position was as entrenched as before, I allowed the Father’s application and directed the Mother to bring the child to Mr Hui’s office on 15th July 2011 for handing over to the Father, and after an outburst from her at the hearing that she would not so, with a clear warning to her of the possibility of another charge of contempt of court against her in the event of her failure to comply with such order. 21.Sadly but perhaps not surprisingly that possibility turned out to be a reality when she was brought back before me 2 weeks later on 1st August 2011 when she had still refused to hand over the child to the Father, and after hearing her in evidence when no valid reasons or explanations could be found, and when no mitigating factors could be proffered by her lawyer, I had no choice but to find the Mother in blatant contempt of court and committed her to prison for 7 days. It was only under such most unfortunate circumstances that the Father was able to collect his son for his summer access. 22.It is therefore clear that while both parties seek custody care and control of their child, at the heart of the issue is whether the persistent problems as to access was the result of the Mother’s deliberate attempt to alienate the child from the Father as alleged by him, or due to the Father’s inability to take proper care of his son during access and other reasons as alleged by the Wife, whichever is true will no doubt impact on how the court assesses the parties’ parenting capacity. But before I shall start considering the parties’ respective case, it would be relevant to first set out the applicable legal principles. Applicable Legal Principles 23.The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child of the family are set out in s 3(1)(a) of Guardianship of Minors Ordinance, Cap. 13 (“GMO”) in that the court :
24.According to Rayden and Jackson on Divorce and Family Matters, 18th edition, Chap 36.14, the word ‘welfare’ should be interpreted as follows :
25.In UK where the same welfare principles apply to children matters and from which our s 3(1)(a) of GMO were derived, their courts are required to have regard to the matters specified in their Children Act 1989 which have come to be known as ‘the welfare checklist’, which consists of the following :
26.While Hong Kong has neither the Children Act nor similar welfare checklist, both our courts and practitioners have found many of the matters specified in the UK welfare checklist relevant and helpful in arriving at what is the best welfare of the child in question, which has in fact been recommended by our Law Reform Commission for our legislation, although it is also said in Rayden that while there is a duty to have regard to the checklist, judges are entitled to have it assumed in their favour that they will do so, without subjecting them to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one, and that the factors in the checklist are not exhaustive of the matters to which the court may have regard (Chap 36.17). 27.It is therefore with these principles in mind that I shall now proceed to first set out basically the parties’ respective case and proposed care arrangement for the child. The Mother’s Case 28.The Mother’s case is that she has always been the primary carer of the child since his birth, that very strong emotional bond has been built between them, whereas the Father was never interested in the care of the child during the marriage and had spent long periods of time away from home working in China, and is therefore not properly equipped or experienced to take over the custodian role, as evidenced by his failure to take proper care of his son during access, while his failure to provide accommodation or maintenance for them when he walked out of their marriage shows his utter indifference or disregard for the welfare of his son that it is justified to deprive him any access to him, let alone his custody. 29.She has cited numerous examples of the Father’s lack of care or insufficient care for the child during access, including failing to give the child a shower after taking him to swim and causing him skin rash or irritation, failing to give him proper clothing thus causing him to catch cold or become sick, failing to help him with or get him to do his home work, and failing to feed him properly or sufficiently. 30.Furthermore, it is her case that the child has rejected his father, and has clearly indicated his wishes to the social workers and psychologists that he would not want to see his father in future, hence his such wishes should be accorded with respect. The Father’s Case 31.The Father says that he is better able to meet the child’s emotional and educational needs than the Mother, as evidenced by the fact that the child was happy and well taken care of during his stay with him over the summer of 2010. 32.Since he works as a taxi driver from 6 am to 3:30 pm during which the child would be at school, the Father says he will be able to take proper care of him after school with the assistance of his sister who lives with him and with whom the child has a good relationship. 33.Notwithstanding their limited access to each other over the past 2 years, he says they have been able to rebuild their close and intimate relationship during the summer of 2010, and that rather than rejecting him as alleged by the Mother, he says that the child has in fact expressed his wish to live with him. 34.On the other hand, the Mother’s unstable and impulsive emotion, her failure to recognize the child’s needs for his father, her deliberate attempts to prevent access, and her failure to take the child to school punctually and regularly all show that she is not fit to be given his custody care or control. 35.If the Mother is given the child’s custody, given her past behaviour, it is most unlikely that she would comply with any access order, in which case father-son relationship will become virtually non-existent. 36.As noted above, at the heart of the parties’ custody issue is their dispute over the Father’s access to the child, which in turn will go to reflect or impact on their parenting capacity, but before going into the evidence of their respective case, it will be relevant to first consider as usual the reports of the Social Welfare Department, and in this case there are sadly more than the normal couple. Social Investigation and other Reports 37.There are in fact 9 of such reports submitted to court throughout the proceedings, unusually high indeed in numbers but as already noted above many of them were the result of the Father’s difficulty in gaining access to the child despite the various orders in his favour, and will be apparent later, caused mainly by the Mother. They are in chronological order as follows :
38.The first 2 social investigation reports (a & c) were prepared by Ms Chow Siu-Fung while the later ones were by Mr Hui Wang-Hung after Ms Chow had been transferred out of the case in late 2009. As noted above Ms Chow in her 1st report suggested that the child should remain in the interim custody of the Mother, whom she found to have been the main carer of the child since birth, with reasonable access to the Father, but asked for a psychiatric report on the Mother apparently based on the following collateral information obtained from the medical social worker of PYNE Hospital and the clinical psychologists of Social Welfare Department (PB : 51) :
39.The resultant psychiatric report from PYNE Hospital on the Mother revealed her following psychiatric history (PB : 57) :
40.The report, prepared by a Dr Phyllis Lau of the Department of Psychiatry, concluded as follows (PB : 58) :
41.The further social investigation report that followed, and the last one by Ms Chow, focused more on the problems arising from the Father’s access to the child during the summer of 2009, of which the Mother complained about the child getting sick due to lack of care from his father, but it is revealing of Ms Chow’s report on the child’s following view about meeting with his father (PB : 66 ) :
42.It appears that Ms Chow accepted that the child did not in fact resist seeing his father, and therefore proposed that the interim access should continue and concluded in her report as follows :
43.Sadly as noted above the resultant interim access as ordered on 5th November 2009 was still largely not complied with by the Mother, as confirmed by the progress report dated 30th December 2009 by Mr. Hui , replacing Ms Chow, and revealed that the Mother had stated clearly and firmly that she would no longer provide the child to his father for access because he would get sick after access, that the Father did not provide adequate food and water for him during access, that the access arrangement clashed with his extracurricular activities, and that she had never actually agreed to the Father having any access as he had not discharged his financial responsibility towards his son, hence she was not treated fairly by the court when it made the access order(PB : 74 - 75). 44.Some of these alleged reasons of the Mother for not allowing the Father’s access were then looked into by Mr. Hui who reported the following (PB : 75) :
45.Mr. Hui further observed in his report that despite this stated refusal to meet his father, K did appear happy to see his father on the 1st access occasion under the said 5th November 2009 Order and enjoyed chatting and playing with him (PB : 76 para 14). He further reported that the maternal grandmother who had assisted the Mother in the care of K also supported the Father’s access to K and agreed that the Mother should comply with the access order (PB : 76 para 16). 46.In addition Mr. Hui reported what he described as collateral information from various professionals such as other social workers and clinical psychologists involved in the parties’ disputes over the child, of which I find the following particularly relevant (PB : 77 – 79) :
47.Mr. Hui concluded in his report that under the circumstances and in the interest of K’s welfare, it would be appropriate to obtain a clinical psychological report to re-evaluate the question of custody and access, as well as an updated psychiatric report on the Mother’s mental condition, and meanwhile the interim access order should continue, but the handing over of K should instead take place at the Social Welfare Department so that it can be better facilitated and monitored. 48.The next report submitted by Mr. Hui was dated 14th May 2010 in which he updated the Father’s access situation as the same as before, i.e. none whatsoever, as notwithstanding advice from him or her lawyers, the Mother was still adamant that she would not comply with the access order, as “she perceived her action as protecting K’s welfare and right who said that he was not willing to have any contact with the father” (PB : 85 para 11). 49.Mr. Hui further reported the Mother’s attitude on access in paragraph 12 as follows :
50.Mr. Hui also dealt with the Father’s frustration of not being able to have any contact with his son since late 2009 in paragraph 13, and suggested to mediate between the parties by bringing in K into the process, to which the Father disagreed, and it would be of assistance to refer to the basis of his objection reported as follows :
51.Mr. Hui then gave his following observations of the Father :
52.Mr. Hui concluded his report by urging that in the circumstances of the present situation of the case, a “custody and access evaluation report by Clinical Psychologist was crucial in assessing the present situation and the formulation of future welfare plan for K. Furthermore, an updated Psychiatric Report for Mdm. W was also suggested in order to assure a comprehensive and detailed understanding of the mental state as well as mental fitness of Mdm. W in providing child care…” 53.Things as noted above took a turn on 8th June 2010 when the Mother, apparently under the threat of contempt proceedings, agreed to the Father having staying access to K during his summer break from school, and as a result an order was made accordingly by this court, and Mr. Hui submitted his next report towards the end of the Father’s summer access. 54.That report, dated 31st August 2010 (PB : 93), revealed that K did enjoy his stay with his father during the summer with various activities without any particular problem or interruption until the end when he was reluctant to return to his mother, which was in my view a rather natural reaction from a small child under the circumstances, although it does show that either what the Mother had earlier claimed that he did not want to see his father to be untrue, or that he has since re-established his good relationship with his father. 55.The report however also revealed that there was perhaps another reason why the Mother suddenly changed her mind on that occasion and agreed to the Father spending K’s almost entire summer vacation with him, when she disclosed to Mr. Hui that she was hoping for a family reunion with the Father which led to some meetings and discussions between them in early August 2010 (PB : 98 – 99). Sadly their meetings led to no resolution but only unpleasant and distressing incidents in front of their child, the details of which will no doubt be looked at when I come to consider their evidence, it may however explain why the Mother would afterwards become intractable again with the Father’s access to K, as will be apparent later in this judgment. 56.Upon obtaining further collateral information from various involved professionals, as well as the respective views of the parties and the child, Mr. Hui as noted above arrived at a different recommendation as to custody from his predecessor in this report :
57.Mr. Hui’s observations of the positive relationship between K and his father were in fact shared by the psychological report submitted at the same time by Ms Christine Chan, a clinical psychologist of Social Welfare Department (PB : 110), but before going into her own assessments, it would be helpful to note her following clinical interview with the Mother of her desire to reconcile with the Father and her perception of her son’s needs :
58.As regard her clinical interviews with the Father, Ms Chan found a big difference in his perceptions of his son’s needs and his proposals as to how to meet them from those of the Mother :
59.Ms Chan then reported her following positive observations of the Father’s parenting attitude and capacity :
60.It would also be relevant to refer to Ms Chan’s following clinical observations of K in particularly as to his positive relationship with his father, which seems to differ quite significantly from the Mother’s case :
61.In concluding this report Ms Chan found the Father to be an adequate parent, that he was genuinely concerned about his son, that he was equipped with some positive parenting qualities, and that father-child relationship was intimate despite an absence of visitation for more than 6 months, but she had withheld her views on the custody issue as the Mother had requested that the clinical assessment of her be postponed until K had returned to her care after his stay with his father over the summer, which was to come in Ms Chan’s next report. 62.That report, which was largely geared towards the assessment of the Mother’s psychological adjustment and parenting capacity, was submitted some 4 months later on 30th December 2010 (PB : 121), during which the Father’s weekly access to K under the court order of 5th November 2009 again could not be implemented, and in Ms Chan’s clinical interviews with her, the Mother was reported to have given this explanation :
63.Not only was this alleged resistance of K to meet his father in significant contrast from Ms Chan’s earlier observation, the Mother’s views on the issue of custody and access also seem to cause Ms Chan concern when she reported as follows :
64.Equally worrying to Ms Chan is the result of the Mother’s psychological test for measuring her emotional functioning, when Ms Chan reported as follows :
65.As to the Mother’s parenting attitudes and capacity, Ms Chan made the following critical observations about her attempt to impose her negative views about the Father on the child :
66.Given this position of the Mother, it is perhaps not surprising that Ms Chan went on to report that K appeared to have changed drastically his views towards his father since his return to his mother’s care after the summer as follows :
67.Ms Chan summarised her findings from her 2 assessments at the conclusion of her report (PB : 130 – 131, para 34 & 35) that while the Mother may have great concern about his mood problems, the child in fact is not suffering from any clinically significant psychological disturbance with no marked impairment in his overall functioning, that in general he is an emotionally dependent and socially immature child who is amenable to reason and willing to follow rules, and that he is emotionally attached to both of his parents and receptive to their guidance, but is caught in some very intense loyalty conflicts between his parents. 68.She then gave her assessments of the parties’ parenting capacity and her rationale in arriving at her conclusion that it would be in the best interests of the child that the Father be given his care and control :
69.At about the same time Social Work Officer Mr. Hui also submitted his progress report (PB : 132) to deal mainly on the Father’s access which confirmed its non-implementation as the Mother had continued to fail to bring K to the Social Welfare Department for handing over to the Father under the terms of the access order. However Mr. Hui also reported that K had been late or absent for school for some 20 times since mid-November 2010 for various reasons offered by the Mother such as illness or missing the usual transportation. This matter has unfortunately also become a major issue between the parties, as it is the Father’s case that the situation has continued and has adversely affected the child as to his schooling, thus negatively reflects on the Mother’s parenting capacity. 70.This turned out to be the last report submitted into court before the conclusion of the trial, and while there had been a total of 9 reports prepared by different professionals, only the second social welfare officer Mr. Hui and clinical psychologist Ms Chan were by agreement of the parties required to attend the trial to give evidence. 71.Both Mr Hui and Ms Chan had stood by the findings and recommendations of their reports and were in consensus as to their firm view that it would be in the best interests of the child to be under the care and control of the Father. While the Mother obviously does not agree with their views, to her credit Mr. Wong on her behalf did not in the main take issue with the factual accuracy of their reports, but rather argues that they should have confined their investigation to facts-finding and should not have made any recommendation on the issue of custody, that in any event their recommendations are wrong under the circumstances, and that their reports were not entirely up-to-date as the Mother has since attended various courses to improve her parenting capacity. 72.The last point can perhaps be easily dealt with first in that anything that may have occurred after the reports were submitted obviously could not have been considered by the officer at that time, but when it was put to Mr. Hui in court, his response was that from his more recent contacts with the parties he had not noticed any change or improvement in the Mother’s handling of the access situation. 73.As to the 1st point raised by Mr. Wong in his submission for the Mother, he relies on 2 judgments of the Court of Appeal, WSM v FSY CACV 352 of 2004, and Naziya Aslam v Rafaqat Ali CACV 144 of 2003, where Cheung JA said in the former :
74.Similarly in the latter case Rogers VP said this :
75.However, as noted above it is not Mr. Wong’s submission that it was wrong for the welfare officer Mr. Hui to make his recommendations in this case, but rather the circumstances in which he made them : right after the child had spent a happy summer with his father, and without observing his interaction with his mother after his return to her home which has since moved to a bigger and more comfortable home than their last one. In other words, the recommendation was not based on what he submitted to be the current circumstances. 76.I agree that right after spending what Mr. Wong has described as “honeymoon period” with his father, the child’s apparent preference for him over his mother may not be wholly reliable as to his true wishes, which can be said to be a normal or natural reaction of a small child under the circumstances, as demonstrated by his reluctance to return to his mother seemingly without any valid reason. However, as explained in both his report and testimony in court, Mr. Hui did not arrive at his recommendations on the basis of only the child’s preference, of which he has clearly observed close and intimate bonding and relationship with both of his parents, but also on other factors, including the Father’s better ability to meet his needs and the adverse effects on him by the Mother’s stance on access. 77.As for Ms Chan’s recommendation, all Mr. Wong can say in his submission is that it was made some 6 months ago without the benefit of seeing the improvements the Mother is said to have made since by attending various courses on emotion control. Whether it is indeed the case is a matter of evidence before the court, of which I shall now come to consider, starting with what I have considered to be the central issue between the parties : their dispute over access. Issues Arising From Access 78.There have been a total of 6 access orders made in these proceedings, dated respectively 17th July 2009 (PB : 18), 3rd September 2009 (PB : 22), 5th November 2009 (PB : 26), 8th June 2010 (PB : 30), 4th October 2010 (PB : 37), and 14th July 2011. The 4th and the 6th orders dealt only with the summer access of 2010 and 2011 respectively, while the others were about the more routine weekly access starting essentially with the 1st order which gave the Father both visiting and staying access on weekly basis, with only slight modifications as to the time and mode in later orders. 79.That order, made in July 2009 as a result of the Father’s initial application for interim access and happened to be the child’s summer vacation, basically therefore covered only a period of about 6 weeks pending the social investigation report and gave the Father interim visiting access on Tuesdays from 3 pm to 7 pm and on alternate Saturday from 12 noon to 8 pm, as well as staying access on alternate Friday from 6 pm to Saturday 8 pm. 80.The 2nd order dealt with an even shorter period basically the month of September 2009 as the child was then just starting his new school term and the parties needed time to work out a mutually acceptable schedule around his new school attendance and other activities, which eventually led to the next relevant access order of 5th November 2009, under which the Father was to have visiting access on alternate Saturdays from 10 am to 8 pm and staying access on the other Saturdays from 10 am to Sunday 10 am, with the Mother to bring the child to the Wan Chai office of Social Welfare Department for handing over to the Father who was to return the child to the maternal grandmother at the end of each access (PB : 26). This is the order which has since been in force as to the date and time of his weekly access but which he has complained of being persistently flouted by the Mother. 81.In support of his case the Father’s solicitor Mr. Leung has produced a schedule of those occasions which the Father was supposed to have access under the relevant court orders and the occasions when access did take place successfully, over a period of about 18 months from 17th July 2009 up to 23rd January 2011, shortly before the start of the trial, in Exhibit “R-1”. His figures, which were not challenged by the Wife, show that of the 70 occasions scheduled for access, only 18 were successful, with the majority of them (13) occurred during the first 2 months of the 1st order between 18th July and 20th September 2009. It is therefore not disputed that save for 2 other occasions in November 2009, no further access took place for the next 7 months until that long summer access in 2010, and thereafter again no access except a couple of times during the Chinese New Year in late January 2011, and the present summer access which could take place only after the Mother had been committed for contempt of court on 1st August 2011 as referred to above. 82.The Mother’s explanations for what she described as “practical difficulty” as to the Father’s access have been summarised by Mr. Wong on her behalf in paragraph 143 of his closing submission as follows :
83.It would not be helpful or necessary in my view to consider the 1st factor since it relates to the summer vacation access only which was as noted above by and large successful in 2010. The other 3 factors on the other hand may well go into the heart of the parties’ parental capacity : if they are true, they will exonerate the Mother and instead put the Father’s capacity in question; otherwise they go to show that the Mother has put her own selfish desire over the needs of her son, and will seriously impact on her parenting capacity. It would be necessary to consider each factor separately, although it will be apparent that some may well be connected to the other. Frustration of the Hope of Re-Union 84.This factor was as noted above first revealed by social welfare officer Mr. Hui in his report of 31st August 2010 when the Mother indicated to him of her desire for a family reunion with the Father so as to provide a complete home for their son, which was also confirmed by the clinical psychologist Ms Chan. While I have no doubt of such desire of the Mother during the summer of 2010, be it for the benefit of her son as she claimed, or because of her financial problems, or both, but whatever her motive may be, the question to ask must be this : Was it appropriate for her to being difficult on access caused by her frustration over the failing hope for a reunion with the Father, or even worse, for her to use it to put pressure on him? The former indicates an inability to control her emotion, while the latter points to something even more unfitting : her wilful disregard for the Father’s right under a court order and her son’s needs for his father. 85.Either way it would be helpful to go into more details as to exactly what the Mother did to try to reconcile with the Father over that summer, in particular as to one incident on a bus involving the child as well, and which the Father says typified the Mother’s impulsiveness. 86.Although no affirmations have been filed by the parties of those events, their details can be found in Mr. Hui’s report of 31st August 2010 PB : 98), while evidence were also adduced by both parties at the trial. It seems that they had met several times during the early stage of the Father’s summer access to K to discuss the Mother’s proposal, but when the Father rejected the idea at their last meeting on 3rd August 2010, a quarrel ensued according to the report as follows (PB : 99) :
87.Save for insisting that the breaking of the Father’s mobile phone on the bus was just an accident, the Mother basically did not dispute that report at the trial, and while both parties had behaved improperly in front of their son in public, there is no question in my mind that the Mother was more to blame for instigating the dispute first and for trying to snatch K away from the Father after he had rejected her reunion proposal, an implication which, if not a sudden loss of self-control in the heat of anger or disappointment, must then be an attempt to blackmail or punish the Father, and by using her son as a pawn in that process, she showed a total disregard for his welfare and safety. 88.Whatever the real intention of the Mother’s behaviour on that occasion and its implication, of which it can always be argued on her behalf that it was just an isolated incident, the 2 remaining factors relied on by Mr. Wong are certainly much more chronicle over the past 2 years. The factor of the son refusing to meet his father can in my view be easily dealt with. Refusal of Son to Meet his Father 89.The Mother first put forward what she claims to be the reasons why the son was not willing to see his father in her solicitors’ letter dated 5th October 2009 and exhibited to her Affirmation of 30th October 2009 (PB : 281), mainly that his father had hit him before and taken away the television, and that the food prepared for him was not good. 90.Granted that some of these reasons had in fact been repeated by the son to the first social welfare officer Ms Chow in her reports at the early stage of her investigation, it is quite clear that access was initially by and large successful, as evidenced by those reports and the schedule in Exhibit “R-1”, while the later social investigation and psychological reports all revealed a close and intimate father-son relationship, that the son had been badly affected by his parents’ disputes and was torn by loyalty conflict which may explain his initial resistance to his father’s access, and that the subsequent successful summer access in 2010 clearly shows that that factor cannot sustain. 91.Furthermore, from the later social investigation reports and psychological reports there are strong basis to suspect that K may very well have been influenced or manipulated by his mother to speak against his father, which is in fact all along the Father’s case that the Mother has been trying to manipulate and alienate the son from him by making up these factors, especially the next and remaining one that I shall now turn to, and which he says will go to show the extreme measures that she was prepared to take to cut him off his son entirely. Son became sick after access 92.Save for the one-off occasion when the Father had brought K to swimming which the Mother complained to have caused him skin rash or irritation, on almost all the other occasions the sickness which the child was alleged to have come down with was either upper-respiratory infection or dermatitis, as evidenced by all his sick leave certificates produced by her (PB : 633 - 646), and it appears that they all occurred after his stay at his father’s place during access. 93.The Father has denied any insufficient or lack of care on his part that had caused his son to come down with these infections, citing the fact that the child was perfectly well and healthy during all his stay with him in particularly his entire summer vacation in 2010, and questioned the genuineness of such alleged infections. 94.Since these sick leave certificates were all admitted as evidence without challenge, and in the absence of any medical evidence from his side, it begs the obvious question : How then can the Father propose to challenge these medical diagnosis? His proposition is that the Mother would just bring the child to the doctor the day after access and complained of coughing, knowing that the doctor would simply make the routine diagnosis of upper-respiratory infection without subjecting the child to any further analytical tests or examinations before just ticking the appropriate box in what appears to be a fairly standard form of sick leave certificates. 95.This is of course denied by the Mother who insisted that she could not afford to waste any money to fake her son’s illness just to get those sick leave certificates. At first glance and considered in isolation such proposition indeed sound far-fetch or simplistic, but when considered collectively with all the other evidence before the court, in particularly her bitterness towards the Father and her clear expression not just to the social welfare officer and psychologist but also to all those present in court that she would not allow him any access if she is granted custody, I am unable to totally discount such a possibility. 96.Even if these infections were real, and that the child did get sick on those occasions, there is no medical evidence to suggest that they occurred while he was staying with his father, or that they were caused by insufficient or lack of care by the Father, bearing in mind that some of those access were only for half a day and it is not impossible that he was already infected before the start of those access. 97.However, the point is that small children do get sick from time to time for health or medical reasons instead of necessarily the fault of their carer, and that even if the Mother had genuinely believed that her son got his infections at his father’s place, she should have discussed the matter properly with the Father with a view to resolve the problem, as any sensible and responsible parent would do under similar circumstances, instead of making accusations and stopping access on her own without any regard for her son’s needs, the Father’s right or the orders of the court. 98.Above all, there is no evidence to indicate that the Father is a careless person with the child other than the Mother’s speculations which were not supported by either the social welfare officers or the psychologists, and it would simply be wholly nonsensical and illogical in my mind for this father not to take good care of his son during what was no doubt limited and precious time with him, as clearly demonstrated by the happy and sickness-free summer that the child had enjoyed with him in 2010. 99.In the premises I reject the Mother’s reasons for her failure to allow the Father access to the child on those occasions referred to above, and instead I believe that she had intentionally denied him access because she blames him for the breakdown of their marriage and his subsequent failure to properly maintain her and their son, and when he refused to reconcile with him, she continued to pursue her own vendetta against him, and in the course she had victimized her son, whose plights and sufferings have been well reported and warned against by the social welfare officers and psychologists, of which she cannot hide behind the excuse that she was not aware or did not appreciate its gravity. 100.Which brings me back to that earlier argument that such behaviour may not be a trait of her general characters but rather the unfortunate consequence of her inability to cope with the stress and pressure brought about by the failure of her marriage and her resentments for her former husband as evidenced by the various reports, and that such behaviour is only temporary or transitory and will return to normal once the litigation is over. 101.However much I was prepared to give her the benefit of that possibility, the evidence before the court indicate that it may well be the case that inherently there are flaws in the Mother’s characters which will go to impact on her parental capacity. Mr Leung for the Father submits that it has in fact already been affecting the child, as evidenced by her persistent lateness in bringing him to school or at all. Son’s Lateness for School 102.As noted above K began his primary schooling in September 2009 at Meng Tak Catholic School in Chaiwan, and will be starting his new school term in Primary 3 comes September 2011. According to his school student handbooks, and which is not disputed, class starts at 8:30 am everyday and hence students are expected to at school not later than 8:30 am, preferably earlier for obvious reason. Unfortunately for K this had not been the case during most of his past two school years despite repeated reminders and warnings from his school teachers. 103.According to Exhibit “R-2”, a schedule prepared by Mr. Leung for the Father of K’s arrival time to school for his first 3 school terms from September 2009 to January 2011 based on the records in his student handbooks (PB : 677 – 811), K had been late for school on 36 occasions in the 1st term and 30 occasions in the 2nd term of Primary 1, and 23 occasions in the 1st term of Primary 2. Considering the fact that each term lasts for about 4 - 5 months, which is about 80 - 100 school days after discounting weekends and public holidays, and granted that some of the lateness were only for several minutes, the frequency of him being late for school is indeed quite alarming, in particularly for the month of December 2010 when he had been late for 10 days out of 15 days of school before Christmas. 104.The Mother did not dispute these figures at the trial, but instead put the blame on the child waking up late or on the public transport, and failed to see why the fuss about being late for just a few minutes on some of these occasions. In any event she claimed that the situation has already improved in the 2nd term of Primary 2 according to Exhibit “P-5” which shows 14 occasions of being late between end of January and mid-April 2011, but which according to the Father is still far from satisfactory given the fact that there was a long Chinese New Year break in between. I agree. 105.As pointed out by Mr Leung for the Father, it should not be so difficult for a responsible parent, in fact for any parent in my view, to get up early everyday to prepare his or her child for school properly and punctually, let alone having to be warned by the school on so many occasions and over such a long period when the problem has still not been properly addressed or resolved. Her explanation that the son stayed up late at night playing video games, a habit which she said he had picked up while staying with his father during his summer access in 2010 is to me a lame and opportunistic excuse as the problem arose a year before, and even if it were true, it just goes to show her inability to teach and discipline her son properly despite the span of time, or otherwise demonstrates her total disregard for rules and regulations, be that of her son’s school or the access order of the court, or even her own medical appointments which according to the various reports she would be late or miss altogether at will, of which I am unable to find any conclusion other than that it was a serious flaw in her character that will no doubt impact on her parental ability when it comes to providing a role model for her son and to give him proper guidance and discipline. The Mother’s Characters 106.The Mother’s behaviour in court is another indication of possible character flaw during which she would appear aggressive, argumentative and combative, very often giving her answers to cross-examination in some of the most appalling, sarcastic, and rude manners that this court has ever witnessed, and would even at times launch personal attacks on the Father’s lawyer Mr. Leung with such humiliating remarks of “What sort of stupid question is that”, “You are really one dumb lawyer” or “Are you sure you are qualified as a lawyer” with absolutely no provocation or justification whatsoever. 107.While it is not uncommon for parties in particularly in this jurisdiction to become emotionally overwhelmed in court with open displays of hostility and bitterness towards each other and sometimes even their lawyers, but there is simply no justification in my view for the Mother’s said behaviour which were amply evidenced throughout the entire proceedings rather than on isolated instances, which makes one wonder whether it can still be argued on her behalf that they were due to stress induced by litigation which would only be temporary as referred to above, or that they were rather more to do with her characters, which seems to be the case when one takes into account of the other evidence before the court. 108.It will be recalled from one of Mr. Hui’s social investigation reports that there were conflicts between the Mother and her co-tenants, of which she did not in the main dispute at the trial, and I would not be surprised that her aggressive and confrontational personality may have contributed to those conflicts. 109.Mr. Wong has submitted on her behalf that the Mother has been attending courses to improve her skills on communicating and cooperating with the Father, and that at the trial she appeared to have relented to consider allowing the Father some access in future on certain conditions. However, judging from her behaviour typified by the latest episode on 1st August 2011, these words surely sound hollow to me, as all along been suspected by Mr. Hui and Ms Chan in their reports. The Father’s Characters 110.The Father’s behaviour in court appeared almost the antithesis of his former wife’s when he would give his answers in a calm, patient and rationale manner, and while he was clearly frustrated by the access problems, and notwithstanding his conviction that the Mother was to blame, he never took the initiative to criticise her in his evidence. In fact quite to the contrary, he appeared to take great pain trying to avoid discussing his former wife’s behaviour in court at all, preferring to rather focus on how he would take proper care of his son. 111.The same observation of the Father can also be found in the various reports before the court in particularly those of clinical psychologist Ms Chan whose clinical assessments of him are as follows (PB : 114) :
112.It would be relevant to note that despite the Mother’s persistent failure to bring the child to Mr. Hui’s office for his access sometimes for as long as 6 months, the Father never once missed attending at the office at the scheduled date and time to wait for his son for up to an hour before leaving empty-handed and disappointed. Some may see such behaviour as naïve, foolish or stubborn. I am inclined to consider it as fine examples of his unquestioned determination to see his son. Conclusion 113.At the beginning of this judgment I pointed out that with a small child like K it would seem normal and appropriate for him to remain in the care of his mother who has been his primary carer with flexible working hours. I said that not just from the point of view of common sense but also because judicial statements can be found, going back in years, to that effect, as in the English case of H v H [1969] 1 All ER 262 when it was said :
114.The same judicial statement was considered and applied to 2 children of 7 and 9 years respectively by our Court of Appeal in the case of Wong Yip Yuk Ping v Wong Sze Sang Michael (CACV no. 116 of 1985) when Cons JA said :
115.The correct approach to deal with this particular aspect of the child has since been summarised by the English House of Lords, as it was then called, in Brixey v Lynas [1996] 2 FLR 499, HL, and which has subsequently been recognised and acknowledged by our Court of Appeal in R v Y (CACV No. 193 of 2010), when Lord Jauncey of Tullichettle said at p.504 :
116.There is no question in this case that K at the age of 8 is a small child who needs constant parental care and special attention, and that he has undoubtedly a close and intimate relationship with his mother who has all along been his primary carer since birth, but this is in my judgement where the Mother’s advantages end, as all other evidence have demonstrated that not only is her present care and guidance for K in particularly as to his emotional needs and discipline woefully inadequate, but her persistent refusal or failure to recognise his needs for his father and by exposing him to their continued disputes on access will no doubt put him at risk of living under constant stress and pressure of loyalty conflicts, which clearly cannot said to be in his best interests, as correctly pointed out by the various reports before the court. 117.On the other hand, not only am I convinced that the Father is equally capable of meeting his son’s physical needs with similar family support as the Mother, but that he is much more capable of meeting his emotional needs and development by providing him with a structured, disciplined and stable life free of stress and adult conflicts, necessary for the healthy growth of all children but particularly important for K in view of his special needs, as emphasized by both social welfare officer and psychologist involved, while his educational needs will also be better met by the Father, of which even the Mother has conceded. 118.I am also convinced that, unlike the Mother, the Father will not only facilitate access but will actually encourage it if K is to go stay with him in future, and will do his best to protect his son from any adult conflicts, as amply demonstrated by the many reports before the court. While this will mean a change to the child’s status quo, evidence of his happy stay with his father during the summer of 2010 indicates that any concern of possible adverse impact arising therefrom will be unfounded. 119.In conclusion, and for all the reasons discussed above, I am satisfied that it would be in the best interests of the child that his custody care and control be granted to the Father, and I so order. The Mother should of course be given access, but given her recent behaviour and in particularly of any possible impact of this decision on her, it will be appropriate that the matter be properly addressed by the parties before me as to its terms and arrangements at the earliest opportunity with 30 minutes to be reserved for that hearing. 120.On the question of costs, as both parties are legally aided, I propose not to make any order save that the parties’ own costs to be taxed on Legal Aid Regulations. Lastly, I wish to express my gratitude to both Mr. Wong and Mr. Leung, as well as the social welfare officers and psychologists involved for their most valuable assistance to what has indeed been a most difficult case.
Mr. Wong of M/S Simon Wong & Co for the Petitioner. Mr. Leung of M/S Cheng, Yeung & Co for the Respondent. | |||||||||||
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