Ccmj v. Ssm Formerly Known As Skl
Read the full judgment text of FCMP 67/2010 on BabelCite. This FCMP judgment was delivered on 5 October 2012 before Deputy District Judge G. Own.
Family law – custody – care and control – best interests of the child – joint custody vs sole custody – access – social welfare report – clinical psychological report – primary caregiver – parental conflict – status quo – Guardianship of Minors Ordinance (Cap.13) – District Court – FCMP 67/2010 – Sole custody and care and control granted to Respondent (Mother) – General access granted to Applicant (Father) – Details of access to be determined at further hearing – No order as to costs
Legal issues: Custody and Care and Control · Joint or Sole Custody · Access Arrangements
Outcome: Sole custody, care and control granted to Respondent; General access granted to Applicant; Details of access to be determined at further hearing.
Cites 1 case
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FCMP 67 / 2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010 ----------------------------
_____________ BETWEEN
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________________________ REASONS FOR DECISION ________________________ Introduction 1.This is an application taken out by the Applicant Father (hereinafter called “F”) for the custody, care and control of the child (hereinafter called “N”) born out of the cohabitation with the Respondent (hereinafter called “M”). There is an alternative claim for joint custody of N with M and free access (including staying access) to the child N. The present proceedings were commenced in March 2010. 2.At the beginning of the trial, then Counsel for F and Mr. Chan solicitor acting for M agreed the Opening and Closing submissions will be given in English, the trial will be conducted in Chinese save and except the evidence of one of F’s witness, NR, who is a Filipino domestic helper, will be testifying in English. Thus the transcripts of this hearing I recited in this Judgment are in Chinese (save as to witness NR’s evidence). It is also agreed that this Judgment will be delivered in English. Development of these proceedings 3.These proceedings are somehow prolonged which I find it necessary to refer to the background of the case progress which had led to this case only being able to come to a full trial in February 2012, which is 2 years after the Originating Summons was issued. This is unusual. Given the spirit of the Civil Justice Reform nowadays, delay itself can cause injustice. The trial had lasted for 15 days which is also exceptionally long for this type of case. It is unfortunate that the substantive trial hearing itself has to be further prolonged for reasons which I will also set out below. 4.The Applicant F has engaged 4 firms of solicitors, in their order of sequence, namely Messrs. Cheung & Liu, Messrs. B. Mak & Co., Messrs. Michael Li & Co., and finally Messrs. Lam, Lee & Lai. The first firm of solicitors Messrs. Cheung & Liu was replaced on 28 April 2010 which is around a month after proceedings started. F instructed different Counsel to attend all the hearings. The Respondent obtained legal aid on 22 July 2010 and was represented by 2 firms of solicitors, in their order of sequence, namely, Messrs. Alvin Cheng & Rosaline Choy, Messrs. Chan, Wong & Lam. 5.Soon after the issuance of the Originating Summons, there were interim applications on defined access taken out by F which was heard by the learned Deputy Judge Tracy Chan on 19 October 2010. On the same day, the learned deputy Judge saw fit to direct the Applicant’s Originating Summons be listed for trial with 6 days reserved in consultation with Counsel’s diary. There are also directions on updated social investigation report on question of custody for the purpose of the substantive trial. 6.On 17 November 2010, M’s solicitors invited F’s then solicitors Messrs. B. Mak & Co., to attend Court on 22 November 2010 for fixing the 6-day trial as directed. On 19 November 2010, Messrs. B. Mak & Co., replied saying that F was in the course of changing Counsel and requested for withholding fixing of the trial dates. This letter was acknowledged by M’s solicitors on 20 November 2010 as follows :-
7.On 17 December 2010, apparently in the absence of any reply from F’s solicitors, M’s solicitors wrote to Messrs. B. Mak & Co., as follows :-
8.On 20 December 2010, F’s then solicitors Messrs. B. Mak & Co., wrote back and said :-
9.On the same day of 20 December 2010, M’s solicitors replied as follows :-
10.A Notice of Change of Solicitors was filed on 10 January 2011 by Messrs. Michael Li & Co. acting in place of Messrs. B. Mak & Co. as solicitors for the Applicant F. 11.Eventually on 14 April 2011, the 6-day trial was fixed for 9th to 11th and 16th to 18th of November 2011 (“the November trial”). 12.As directed by the Court, the social investigation officer handling this matter Miss Ma filed her updated report dated 20 October 2011 before the 6-day trial commences. Miss Ma recommended the trial be adjourned for a clinical psychological report on the child N before she would be in a position to assist the Court with her recommendation on the issue of custody. 13.I noted that under paragraph 2 of Deputy Judge Tracy Chan’s Order dated 19 October 2010, F should file his Affirmation in Reply within 36 days (i.e. by 24 November 2010). However, despite F was legally represented throughout the entire proceedings from the beginning, there was no application to the Court seeking time extension to file such Affirmation in Reply. Without the Court’s leave obtained in advance, F only filed his 5th Affirmation in Reply on 19 October 2011 (which is some 11 months late and just 3 weeks before the November trial). This 5th Affirmation consists of 75 pages containing 254 paragraphs and 82 exhibits (exhibits no.38 up to 119). Furthermore, without leave of the Court being obtained or any prior notice given, F’s solicitors filed the following additional Affirmations also around 3 weeks before the November trial :
14.In light of the above, M’s solicitors saw fit to raise an adjournment of the 6-day trial which was scheduled to start on 9 November 2011. M’s solicitors were of the view that on all fairness M should be given at least 60 days to prepare her Affirmation in reply because of the bulk of Affirmations (both in terms of numbers and allegations raised) chosen to be filed by F at such a late stage. F’s solicitors, however, considered the trial should nevertheless start as scheduled to first deal with those factual matters raised in all the latest Affirmations and then adjourned the trial part heard for other issues pending the clinical psychological report recommended by the social welfare officer Miss Ma. 15.A short 30-minute direction hearing was arranged by this Court on an urgent basis on 8 November 2011. F’s then Counsel Miss J. Tsui submitted that in light of the bulk of the latest affirmations produced, the trial will now be expected to last 14 days instead of only 6 days. Having heard submissions, the November trial dates were vacated and re-fixed to February 2012 with 14 days reserved. M was granted leave to file and serve her Affirmation in response to F’s Affirmations on or before 3 January 2012. F was granted leave to file and serve Affirmation in Reply (if any) on or before 17 January 2012. A Pre-Trial Review (PTR) hearing was scheduled for 10 February 2012. At the PTR hearing, parties are directed to submit a joint letter of the witnesses attendance by 17 February 2012. It was agreed by both parties that all the factual witnesses of F including F and M themselves would give evidence before the social welfare officer, clinical psychologist and medical doctors. 16.The trial fixed for February 2012 commenced as scheduled. In the afternoon of the 10th day of trial (i.e. 29 March 2012) when M had been under cross examination for 5 days already, then Counsel Miss J. Tsui for F informed this Court that the parties have reached settlement and submitted a 3-page hand-written draft of the terms signed by respective solicitors. In the presence of F and M, Miss J. Tsui gone through the entire hand-written draft of the agreed terms from beginning to the end before me. Miss J. Tsui informed the Court that a formal Consent Summons would have to be prepared incorporating details of the terms agreed and then would be filed with the Court by 18 April 2012. Miss J. Tsui was going on leave until around mid April and, in the meantime, the question of costs would need to be sort out by M’s solicitors with the Legal Aid Department since M is on legal aid. Accordingly, the trial hearing was not proceed any further on that day but was adjourned to the next scheduled trial date of 20 April 2012. I should perhaps emphasize that at that stage neither the social welfare officer nor the clinical psychologist or any of the medical doctors arranged by the parties had testified. Applicant’s case had closed and Respondent undergoing cross examination. In fact, the updated social welfare report had not been ready yet because the clinical psychologist Miss Tso had just submitted her report on 27 March 2012, which is 2 days before the 10th day of trial, when such ‘agreed terms’ came in. 17.It somehow happened that a Notice of Change of Solicitors was filed on 19 April 2012 (i.e. the date just before the resumed hearing) by Messrs. Lam, Lee & Lai, solicitors, acting for the Applicant F in place of Messrs. Michael Li & Co.. 18.At the resumed hearing on 20 April 2012, Miss A. Sin, a partner of Messrs. Lam, Lee & Lai Solicitors, appeared before me and submitted that F gave instructions to her firm only the day before (i.e. 19 April 2012) to take over these proceedings. She was instructed that F was under duress and undue influence by his then Counsel Miss J. Tsui and the former instructing solicitors on ‘agreeing’ to the terms of the draft produced to this Court on 29 March 2012. F claimed that his former legal representatives had not maintained his wishes (沒有堅持他的意願). F did not accept those ‘agreed’ terms anymore. The matter was then adjourned to 30 May 2012 for further disposal in light of the late instructions received by Miss A. Sin. Both parties have, however and without being directed by this Court, submitted written skeleton submissions for the 30 May 2012 hearing. 19.At the hearing on 30 May 2012, Miss A. Sin confirmed F’s instructions to proceed with the trial since her final instructions are that no agreement had ever been reached between the parties on 29 March 2012. It was finally confirmed by F through Miss A. Sin that the trial should be continued by me notwithstanding that those ‘agreed’ draft terms had been disclosed to this Court (see paragraphs 28 and 29 of Miss A. Sin written submissions dated 30 May 2012). At the time when the “agreed” terms were disclosed, only those factual witnesses have given their testimonies. The updated social welfare officer’s report had not yet been filed. Given the fact that the central issue is the best interests of the child N which the Court must determine, any concession or compromise by the parties would not, in my view, compromise the Court’s impartiality and investigation duty on the central issue. Accordingly, the following Orders were granted by me :-
Background 20.The parties came to know each other in 2005. F in his 1st Affirmation confirmed he started dating M on 8 May 2005. Since 2007, the parties started cohabitation at F’s present address. Before that, M had already stayed with him overnight on frequent occasions. In early 2008, M had become pregnant. Although there was no marriage registration of their relationship, a Chinese marriage ritual was carried out in June 2008. Out of the cohabitation, N, a girl, was born in November 2008. It was common ground that there was some argument between the parties over change of milk powder for N when N was about 6 months old. This led to M leaving F on 10 May 2009 bringing with her the child N to stay and live with her maiden parents until now. 21.F is now aged 52. He was educated up to post university level and had obtained a Degree in Electronic and Electrical Engineering in United Kingdom in 1983. He is now holding a senior position in the Department of Business Development with a listed company in Hong Kong. He is living with his parents and some of his siblings in a house owned by his father in Kowloon Tong, Kowloon. 22.M is now aged 32. She received up to Form 5 education. In the past she had worked as a clerk. She had also assisted in her father’s business. At present she is a housewife looking after the child N full time and live with her parents in a Home Ownership Scheme housing flat. This flat is owned by M’s father in Tseung Kwan O, New Territories. 23.N is now 3 years and 10 months old. At the time of separation of her parents, N was only 6 months old. The Legal Principles 24.Custody Orders are granted under the provisions of section 10 of the Guardianship of Minors Ordinance, Cap.13 (“GMO”). The general principles governing custody of a child are set out in section 3 of the GMO (as amended on 13 April 2012) which provides :-
25.In addition, the Court may also take into account other matters in determining custody. In the case of YLS v. TL (FCMC No.8396 of 2007) at paragraph 14 of the judgment where HH Judge Melloy said :-
26.I will also adopt the above checklist whenever they are relevant to the circumstances of the present case. The Father’s case 27.It is the father’s case that the mother M is unfit as a primary care giver of N. In F’s 1st Affirmation which consists of 105 pages (containing 191 paragraphs and 22 exhibits – exhibit no.1 to 22), apart from setting out the necessary background information, contains numerous accusations against the mother M’s personality and character. This 1st Affirmation is divided into different sub- headings, namely : (a) Birth of the Child; (b) M’s denial of his access to the child; (c) Dynamics in the relationship with M; (d) Character of M; (e) Differences in values and beliefs; (f) M’s taking away of the child and events thereafter; (g) Personal background of F and M; (h) F’s plan for the child’s future; (i) F’s application. 28.The exhibits produced to this 1st Affirmation contain several handwritten letters in Chinese from F to M, from F to the child N, photographs and various other documents. There are handwritten notes and description given by F to explain or elaborate the contents of some of these letters, photographs and documents. Suffice to say is that all these letters reveal that the parental conflicts over the child are both substantive and emotional. 29.In F’s 5th Affirmation in Reply which consists of 75 pages (containing 254 paragraphs and 82 exhibits – exhibit no. 39 to 119), which was filed 11 months late and only 3 weeks before the November trial, apart from replying to M’s Affirmation, re-visited a number of matters already raised earlier. I noticed that F had taken the benefit of the delay of time of 11 months to also include several other events which had happened during the 11-month period. It is obvious that the antagonism between the parties escalated as these proceedings progressed. 30.There was attached to this 5th Affirmation several tenths of pages as exhibits which added up to a sizeable quantity of exchange of mobile text messages, emails, lawyers’ correspondence, school notices, memos, report of N by dentist Dr. Wor Lam, report of N by Dr. Lam Chi Shing, Stanley, of Essence Rehabilitation Centre, Note of memo by Professor Albert M. Li of Department of Paediatrics, Prince of Wales Hospital, medical receipts, numerous photographs even including photos of N’s stool on diapers, rashes on N’s face, medicine bottles for N, snapshots of photos depicting N during father’s access and others. Again, it is fair to say F is challenging M on virtually all aspects over the child care given to N as he possibly can. 31.Given this 5th Affirmation was filed 11 months late and a substantial portion of the exhibits referred to incidents which had happened during this 11-month period, it does cast some doubt as to the genuine reason for the late filing of this 5th Affirmation in Reply. I have reservation on the reasons for delay given by F at paragraph 2 of this 5th Affirmation. Had this 5th Affirmation in Reply been filed within the time directed by Deputy Judge Chan, which is by 24 November 2010 (see paragraph 13 of this Judgment), I would have thought the Affirmation contains much less accusations. There are altogether 29 sub-headings in this 5th Affirmation, which are : (a) Reply to M’s Affirmation; (b) My family; (c) Few incidents to explain; (d) M’s family; (e) M’s habitual lies; (f) Reply to Affirmation of M’s witness; (g) M’s reluctance to communicate over N; (h) Continuous difficult access; (i) 3 Nov 2010 event; (j) 30 and 31 Dec 2010 event; (k) Other occasions; (l) Summer holiday access; (m) N’s education; (n) N’s school attendance and behaviour; (o) Selection of kindergarten; (p) Y Kindergarten; (q) TL Music Playgroup; (r) Insufficient and Improper care to N; (s) N’s health issues; (t) Stained teeth; (u) Bow legs; (v) Tiredness of N; (w) Antibiotics and constipation problem; (x) Medical Insurance; (y) Allegation from M on F’s inability to take good care of N; (z) M’s hostile attitude towards F; (aa) More recent incidents; (bb) Bonding with N; (cc) Social Investigation Report. 32.In F’s 6th Affirmation filed on 4 November 2011 (i.e. only 5 days before the November trial), which was filed without leave of the Court, there was produced F’s 120th exhibit of a report from Mr. Ng Nai Kong, clinical psychologist of Centre of Marriage & Child Guidance as his exhibit no.”CCMJ-120”. As at this point in time, no expert directions had ever been sought for production of such psychological report or for disclosure of the Reports of Dr. Wor Lam and Dr. Lam Chi Shing, Stanley, all of which had already been attached to F’s earlier Affirmations. No leave had ever been obtained either for the filing of this 6th Affirmation or those other Affirmations which I have referred to under paragraph 13 (a) to (d) of this Judgment. This is unusual, if not improper, when F had all along been legally represented with the full benefit of legal advice. 33.Besides, there are also video clips produced by F under Court exhibits A-3, A-4 and Affirmation exhibit no.”CCMJ-122” attached to F’s 6th Affirmation as evidence which were played during the trial hearing. These video clips were aimed to show N’s mood change and reluctance to return to the mother after the father’s access. 34.F maintained that M had always been difficult to him over his access to N since separation in May 2009. A meeting with N was arranged by Miss A (F’s 4th witness and his youngest sister-in-law) who had been the ‘go-between’ assisting F in contacting M after their separation. The meeting was scheduled for 19 July 2009 at M’s father’s canteen in Cheung Sha Wan, Kowloon. However, the meeting took him nowhere over conciliation with M except that he had a brief moment to see and hold the child N. F’s case was that the meeting was ended when M turned hostile, chased after him to kick and bang on his car, used foul language at him, threw onto the street bags of clothes and toys which F brought for N. It is also F’s case that M’s mother snatched the child N away from his arms and had used foul language at him. 35.F also alleged that M’s personality and character is being vindictive which could be reflected by the way which she had treated the child N. F cited the case of M shaving N’s hair bald in winter time. The other major allegations as to M’s unfitness as primary care giver include M giving elderberry juice to the child N which is not suitable for N, letting N wearing school uniform on his access days, letting N wearing over-sized underwear and shoes, excessive medication treatment and improper use of antibiotics, not attending to N’s stained teeth issue and oral hygiene, not attending to N’s bow legs condition; not attending to N’s constipation and rash problems; not attending to N’s retrieving behaviour in school. 36.Apart from the 4 witnesses of fact who had filed their respective Affirmations, F also arranged Dr. Leung Cheuk Wa, Wilfred, consultant paediatrician of Union Hospital, Tai Wai, Shatin and registered specialist in paediatrics with 16 years of clinical experience in paediatric specialty, to give evidence. At the Pre-Trial Review hearing on 10 February 2012, F’s then Counsel Miss J. Tsui sought leave to adduce a medical report from Dr. Leung Cheuk Wa, Wilfred whose report was not yet ready or available at the PTR hearing but would be available in a week’s time. Leave was then given for such report to be filed and served on or before 17 February 2012 (i.e. in 7 days’ time). Dr. Leung prepared a letter dated 14 February 2012 on his overall assessment and as medical report on N’s physical and psychosocial health condition. Dr. Leung turned up to testify at the trial. The Mother’s case 37.M accepted there were arguments with F on the issue of change of N’s milk powder when N was about 6 months old. This triggered the separation in May 2009. M categorically denies all those of F’s allegations against her as to insufficient and improper caring for N. M also refuted F’s allegations that she was being difficult on F’s access or she was being uncooperative with F on N’s school activities or academic progress at school. 38.M frankly admitted that she had initially expected F at the meeting on 19 July 2009 would invite her back home. She strongly denies there was any hostility, kicking and banging F’s car, or had used any foul language at F in the meeting as F had now so alleged. To her disappointment F who, having met her and held N for a while, did not talk to her except to say : “Nothing to talk, see you in Court” (“冇嘢講，法庭見”). 39.As to all the other allegations of F, she said F had endlessly and surreptitiously raising complaints and finding faults upon her. F would never be satisfied with any steps she took or any answers she gave. M in her testimony said she was really tired with F’s lengthy and acrimonious and lengthy emails, letters and text messages and when she responded, it only ended up with even more accusations. The “new” evidence from the Father 40.F arranged 5 witnesses including Dr. Leung Cheuk Wa, Wilfred. M arranged her elder brother and Dr. Cheng Chun Fai as witnesses. I should also mention that on 23 July 2012 (i.e. the day before the re-fixed resumed trial on 24 July 2012), F’s solicitors attempted to file F’s 9th Affirmation attached thereto an exhibit of a 51 pages long (149 paragraphs) Psychiatric Report from one Dr. Wong Chung Kwong attached with extracts from research publications. This Psychiatric Report and attachments added up to a total of 91 pages. 41.Considering the spirit of the Civil Justice Reform (CJR) and the circumstances of the case, also in the interests of justice and on all fairness, and also I have heard submissions from F’s newly instructed Counsel Miss Annie Lai, I decided not to allow this 9th Affirmation and the Psychiatric Report to be filed. To decide otherwise would not simply lengthen the trial with costs escalate, the determination of N’s custody would be unnecessarily and further delayed. In my view, this is certainly jeopardizing N’s interests. F, with the full benefit of legal advice at all times, should not and indeed could not take the litigation procedure in his own hands and simply threw in whatever materials he thought useful to him and at any time he wanted. I noted the clinical psychologist Miss Janet Tso in her Report dated 26 March 2012 where she had already said :-
At paragraph 7.2
The witnesses’ evidence 42.To start with, I will deal with the evidence of each of the witnesses of fact followed by the evidence of the social welfare officer and clinical psychologist. In light of the several tenths of F’s accusations against M from earth to sea on virtually all matters, I do not venture to go into and resolve the truth, falsity or reasonableness of each and every dispute or allegation raised by F or his witnesses. In my view, the Court’s finding on accusations would only be necessary and meaningful if it sheds light on whether a party is a fit custodial parent or that it touches upon the best interests of the child. To do any further than that would only be tentamount to adjudicating upon the parties’ personal grievances and emotions rather than determining the central issue, which is, what kind of custody, care, control and access order would serve the best interests of N ? 43.I will approach the factual evidence along such line. I will also refer to those parts of the transcripts of trial whenever they are useful for determining the credentials of the respective witnesses. I have had the benefit of observing the demeanour of the witnesses and the parties while they gave evidence in court. For those matters which have not been set out in this judgment is because either they are immaterial or because they are controvert by my findings on other material evidence. 44.In relation to the evidence of Dr. Leung Cheuk Wa, Wilfred, arranged by F and Dr. Cheng Chun Fai arranged by M, I will refer to their respective evidence where appropriate. Suffice to say is that leave was granted for F to produce medical report of Dr. Leung and not Dr. Cheng. However, there was an Affirmation filed by Dr. Cheng on 3 January 2012. F’s witnesses no.1 – Mr. B 45.Mr. B adopted his Affirmation filed as his evidence in chief. He came to know F through business work around late 2008. His Affirmation mainly referred to what had happened at the 19 July 2009 meeting at M’s father’s canteen with some reference to the family background of M. In his Affirmation, he said the following :-
46.Mr. B was requested to draw a sketch of the layout of the canteen where the meeting took place. He confirmed he was sitting right in front of the cashier where M was. He also confirmed the distance between him and M was rather close so that he would be able to hear what M said. However, his testimonies under cross examination seriously depart from his Affirmation which I will set out below. I find him to be incredible. 47.Firstly, I noticed him tend to avoid directly answering questions or to delay in giving his answers. Quite a lot of his answers (as can be seen from the transcripts) he would say ‘should be’ this or ‘should be’ that (應該係). 48.Secondly, from the following extracts (from D to M at page 47 of the transcripts), it can be seen Mr. B’s answers (underlined and in bold) were neither candid nor coherent :
49.Thirdly, during re-examination by F’s Counsel to clarify whether he heard M’s mother scolded F, Mr. B was not sure that he had heard M’s mother scolded F (underlined and in bold) (at N of page 54 up to D of page 55 of the transcripts) where this witness said :
50.The above extract of the transcripts shows Mr. B did not hear M’s mother scolding at F. This contradicts with paragraph 16 of his Affirmation where he said he witnessed M’s mother shouting quite furiously to F. 51.In reply to this Court’s questions as to whether he recognized M’s mother or whether M’s mother was actually present at the meeting, Mr. B was asked to demonstrate the respective positions of the parties at the meeting. Mr. B was even not quite sure whether he recognised M’s mother or M’s mother’s presence in the meeting was even in doubt. The following parts of the evidence are important (underlined and in bold).
52.As can be seen from the transcripts, Mr. B in his answers to this Court’s question and even F’s Counsel, could not recall whether M’s mother was present within the group of women or at the meeting. When answering M’s solicitor questions, Mr. B hesitated and kept repeating the question asked of him and then said he could not recall whether at the time of meeting he could recognise M’s mother. With the benefit of observing Mr. B’s demeanour when testifying and his answers given, my impression is that Mr. B was simply delaying his answers to ‘buy time’ to think what answers would best assist F’s case. In my decision, I find Mr. B neither honest nor credible. F’s witnesses no.2 – Miss P 53.This witness claimed to have known F since childhood and have been friends with F for about 38 years. She stood to witness the parties’ separation and the access arrangement between May 2010 and the beginning of 2011. In her oral testimony, she explained not being involved further in the access arrangement was due to her personal health reasons. 54.In her 10-page (41 paragraphs) Affirmation, it was divided into 8 sub-headings, namely,
55.At paragraph 7 of her Affirmation, she confirmed her presence without exception on all the access occasions between May 2010 and beginning of 2011. She went on to describe those incidents which she had the strongest impression as to the attitude of F and M as parents and the child N’s reaction to them. 56.Her Affirmation contains quite a lot of either those so-called ‘second hand’ information fed to her by F or her personal feelings and perceptions. To cite a few examples below which I underlined and in bold by referring to the paragraph numbers in her Affirmation :
57.Moreover, this witness referred to M denied F’s access on 30 December 2010 without giving F any prior notice. This was contained at paragraphs 33 to 34 of her Affirmation :-
58.Upon cross examination on this incident, this witness was referred to and taken through pages 1212 to 1213 of the Trial Bundle containing those SMS text messages exchanged in the evening of 29 December 2010. The text messages clearly show M had notified both F and this witness at 10:45 p.m. the night before (i.e. 29 December 2010) as to cancellation of access on 30 December 2010. The witness had been evasive in giving her answers which I underlined and in bold below. It starts from paragraph M of page 76 to Q of page 77 of the transcripts :
59.It is obvious that this witness selectively answered questions put to her. I do not believe this witness, after she was shown those text messages sent to her by M on 29 December 2010 (at pages 1212 to 1213 of the Trial Bundle) could not recall any one of them but nevertheless she was able to recall both in her Affirmation and at trial that she went to F’s house on 30 December 2010. No issue was taken by F’s then Counsel as to the veracity of those SMS text messages which were exchanged at a time not in contemplation that they would be used as evidence today. In my decision, the only reasonable inference to be drawn, on balance of probabilities, is that paragraphs 33 and 34 of this witness’s Affirmation which are prepared for the purpose of the trial are untrue. 60.In my finding, this witness Miss P’s evidence is untrue and unreliable. 61.As I said in paragraph 42 of this Judgment, I would only venture into those matters which shed light on fitness to be custodial parent or touches upon N’s best interests. Given the fact that there are evidence from independent social welfare officer and clinical psychologist as to the suitability of F or M as the custodian parent, both are evidently well experienced in this field, I do not intend to go into those other incidents related in her Affirmation. F’s witnesses no.3 – Miss NR 62.This is one of the two domestic helpers working in the house of F. Her Affidavit consists of 9 pages (36 paragraphs), and again, divided into a number of sub-headings, namely :-
63.In relation to the jumping off the roof incident, this witness described it at paragraphs 7 to 9 as follows :-
64.Upon cross examination by M’s solicitor, witness Miss NR said (from C to J at page 91 of the transcripts) :
65.In answering this Court’s question for clarification, she said as follows (continue from K to U of the same page 91 of the transcripts) :
66.Upon re-examination by F’s Counsel, Miss NR said (from G at page 93 to P at page 94 of the transcripts) :-
67.First, in paragraph 8 of her Affidavit, she described M was pulled towards the edge of the roof by M’s mother. She heard the word “jump” (in Cantonese) repeatedly coming from both M and her mother. However, when answering this Court’s question (see paragraph 61 above), she said it was M’s mother who said the word “jump” (“跳樓”) in Cantonese. Secondly, when being re-examined by F’s Counsel ‘who wanted to jump ?’ (see paragraph 66 above), this witness said it was M. Here is the inconsistency. Had M ever wanted to jump as she had so answered F’s Counsel, I do not see the logic why, using the words of the witness, ‘M was pulled towards the edge of the roof by her mother’ (see paragraph 8 of her Affidavit). M could have gone towards the edge of the roof and jump rather than ‘having to be pulled’ by her mother. This is particularly so when this witness had described M’s emotion was being ‘hysterical’ at the time when this witness having had to hold M hard and away from the edge, but M was still ‘forcing her way over it’ (see paragraph 9 of her Affidavit). Thirdly, the oral testimony that M was following her mother who was pulling M towards the edge of the roof simply does not sit happily with the scene of a hysterical person forcing her way over to jump off the roof. Assessing her evidence, on balance of probabilities, I find her evidence unreliable. I find this witness unbelievable. 68.On such a finding, I do not accept the evidence of this witness Miss NR to be the truth. In my view, her evidence is another attempt launched against the personality and character of M with an aim to undermine M’s suitability to be the custodian parent. I have the benefit of observing M giving evidence of her case and answering numerous questions under cross examination for 5 days, her demeanour impressed me as being calm and patience all the time. Her answers were direct and coherent which I find her credible. This witness Miss NR’s other evidence and testimonies on those other sub-headings in her Affirmation are not accepted by me as truthful and reliable. F’s witnesses no.4 – Miss A 69.This witness is the younger sister-in-law of F. She has provided two Affirmations, dated 18 October 2010 (in Chinese) and, a year later, on 24 October 2011 (in English). The first Affirmation was filed in support of F’s application for variation of interim defined access although in there also contains reference to those incidents of M’s conduct which F is now claiming as part of his case. The second Affirmation was amongst one of those several Affirmations filed by F without leave 3 weeks before the trial originally scheduled for November 2011. Same as with the other Affirmations, this 16-page (68 paragraphs) second Affirmation was sub-divided into separate headings :
70.In broad terms, this witness confirmed all those matters raised by F on M’s character and personality and also the improper care given by M to the child N. These are, namely, kicking of F’s vehicle violently after the meeting on 19 July 2009 (at paragraph 20); N’s head was shaved bald (at paragraph 23); M’s personality and character (at paragraphs 28 and 37); N’s nursery school enrolment encounter (at paragraphs 30 to 36); N’s stained teeth issue (at paragraphs 38 to 41); N’s constipation problems (at paragraph 42); N wearing school uniform for access (at paragraphs 43, 45 and 46); N not properly dressed by M (at paragraph 44); N wearing over-sized and improper shoes (at paragraph 48). This witness then went on to set out her observation on N’s development and expression during those access times by F. 71. I will start with her evidence on the meeting on 19 July 2009 which meeting she had arranged for F to meet the child N. She described the meeting at paragraphs 13 and 14 of her first Affirmation. She only referred to the same meeting very briefly in one single paragraph 20 in her second Affirmation. 72.In her evidence-in-chief about the meeting, she said (from T at page 98 to D at page 101 of the transcripts) :
73.There are discrepancies in her evidence. First, she said once F held up N, M started to scold F furiously in the presence of the child and other persons (see paragraph 13 of her first Affirmation). She then went further (see paragraph 14 of her first Affirmation) and said after F held N for few minutes, the meeting was ended by M and M’s mother foul language and rude conduct. M had also chased after F yelled with foul language. However, in her evidence in chief, she had never mentioned M had scolded F or used foul language. She said it was M’s mother who had used foul language towards F. Further, her oral testimony said the meeting lasted 20 odd minutes which conflicted with the time span of few minutes stated in her Affirmation. 74.Upon cross examination on the issue of foul language, she said in fact it was rather messy at the time, she could only be sure that she had heard M’s mother using foul language. From H to K at page 116 of the transcripts where it can be seen :
75.The other discrepancies came from whether witness Mr. B heard about M’s family member said about triad background. In her first Affirmation (see also paragraph 14 of her first Affirmation) where she said :-
稱黑社會不好惹。” 76.However, also upon cross examination, she confirmed she was only told by Mr. B and Mrs. B subsequently. (From T at page 116 to D at page 117 of the transcripts), where she said :
77.Obviously, her first Affirmation contains matters not within her direct knowledge and also mingled with hearsay evidence received subsequently. This affects her credentials and the evidential value to be given to her testimonies. It matters not that she does not acquaint with what information could be included in her Affirmation since it was prepared by F’s lawyers on her behalf and was explained to her when she deposed to it. 78.Suffice is to say that this witness’s evidence, in my decision, is not reliable as truth. M’s witness – Mr. S (elder brother) 79.Mr. S in his Affirmation, apart from setting out the family and his personal background, gave an account of what had happened at the meeting on 19 July 2009. He agreed F held N in his arms with emotion. F became emotional and sobbed uncontrollably. Seeing such scene, his mother offered to receive N so that F could talk to his younger sister (i.e. M) face to face directly. However, F refused to release N and then F’s second sister came over to offer to hold N. Once N was released, F simply said there was nothing to talk and they should meet each other in court. F then turned to leave. The whole incident, from the time F walked into the canteen until they left, was over within slightly more than 2 minutes. 80.There was not much questions put to this witness, either in chief or in cross examination, to any extent which affect his credentials. From observing his demeanour when testifying, I believe he is telling this Court what he had seen. I accept his evidence to be the truth as what had happened on the 19 July 2009 meeting. The Father’s allegations N’s stained teeth 81.F complained M lacked in providing dental care to N. The issue was raised by F but allegedly unattended to by M. F produced a report dated 22 August 2011 from Dr. Wor Lam of Bayley & Jackson, Dental Surgeons Ltd (as exhibit “CCMJ-89” to his 5th Affirmation in Reply) where it was said :-
82.F produced photographs of N’s stained teeth at exhibit “CCMJ-87”; photographs showing F taught N on teeth brushing at exhibit “CCMJ-88”. Dr. Wor Lam was, however, not called to testify at trial. 83.F arranged Dr. Leung Cheuk Wa, Wilfred to give evidence. Dr. Leung’s report takes the form of a letter dated 14 February 2012 and was filed as an exhibit (as exhibit no.“WWHH-1”) attached to the Affirmation of the then handling solicitor on 17 February 2012. In the letter, Dr. Leung confirmed there were assessments by him on N’s general health condition on 3/11/2011, 30/1/2012 and 4/2/2012. Besides, there were consultations on 31/1/2012, 8/2/2012 and 11/2/2012 for reviewing N’s medical records, medications, photos of previous teeth cleanliness, reports from specialists and teachers, M’s views stated in the affirmations filed in these proceedings. Dr. Leung adopted the contents of his report as his evidence in chief. 84.Dr. Leung in his report said N’s teeth were lightly stained upon the 2nd and 3rd consultations and he was told that was after F’s effort on brushing and cleansing. He was shown photographs of N’s teeth taken by F before cleansing of teeth. In his evidence in Court, he adopted the findings of Dr. Wor Lam, who was allegedly the person who checked N’s teeth whilst it was stained. I cannot accept such evidence. Dr. Leung is in effect adducing secondary evidence of Dr. Wor Lam on N’s stained teeth without himself actually underwent the checking and saw those teeth stains as appeared in the photographs shown to him by F. In effect Dr. Leung was accepting the photographs as truth without himself directly seeing the teeth stains and also he was accepting the alleged stains were cleansed off by the effort of F. This is in essence hearsay. 85.Furthermore, Dr. Wor Lam’s findings in itself are also unsatisfactory. Dr. Wor Lam said the stained teeth issue could be a result of drinks and food coupled with poor oral hygiene measures at home. Apparently Dr. Wor Lam was providing his findings or conclusion of the probable cause of stained teeth which he saw. However, I noted that Dr. Wor Lam had not stated whether such conclusion was arrived at simply by physical inspection by his experience or otherwise. More importantly, he had not stated whether enquiry had been made of M as to how she handles the child N’s oral hygiene at home; or had he enquired about the way as to how N brushes her teeth every day. If such enquiries were made, they should be recorded by Dr. Wor Lam. If neither of such enquiry was made, how could Dr. Wor Lam directly come to the conclusion of “poor oral hygiene measures at home” as the probable cause in his findings ? It appears to me Dr. Wor Lam was making a positive assertion that the hygiene measures at home were “poor”. Leaving aside the problem of hearsay, to accept Dr. Wor Lam’s findings and conclusion on the stained teeth issue, without knowing how such conclusion was arrived at by Dr. Wor Lam or him personally explaining his conclusion in Court and subject to cross examination, to be evidence of truth the stained teeth as seen in the photographs was related to M’s lack of care and attention would be wrong. Thus, F was left with no evidence to support this particular allegation. 86.On the other hand, Dr. Cheng Chun Fai filed an Affirmation covering various aspects of complaints by F including the stained teeth issue. Dr. Cheng testified in Court on his Affirmation and subject to cross examination. Dr. Cheng had been N’s paediatrician since her 26th days of age. In the last paragraph of his Affirmation, he said stained teeth, to be distinguished from caries tooth, is the result of interaction between teeth characteristics and the environment. He went on to say teeth staining is usually not caused by any wilful or negligent means. Dr. Cheng chose to disclose that his daughter also had stained teeth problems. 87.The fact that no expert directions were granted for Dr. Cheng’s evidence does not prevent him from filing an affirmation and giving evidence in Court as a factual witness. Indeed, he was subject to cross examination by F’s Counsel in the same way as any other witnesses of fact. His evidence on the teeth staining issue, in my view, involves everyone’s day to day experience rather than any expertise from his professional knowledge. The mere fact that he is a doctor by profession does not necessarily mean everything he said in Court would fall within the scope of giving ‘expert’ evidence. Say, for a day to day example, a person’s teeth was stained after taking fruit juice such as grapes or cherries, whoever saw such stained teeth may well in a position to say the teeth stain might be caused by the fruit juice. Such statement would not become a piece of ‘expert’ evidence simply it was spelt out by a doctor. Moreover, whether M had consulted Dr. Cheng on N’s stained teeth is a factual issue which I am entitled to believe or not believe Dr. Cheng as to whether it did happen. There is again no question of ‘expert’ evidence. Dr. Cheng impressed me as a reliable witness. I accept his factual statements to be true and accurate. Accordingly, F’s allegation of the stained teeth issue not being attended to or followed by the mother, in my judgment, is unfounded and unsubstantiated for want of supporting evidence on such allegation and also negated by the evidence of Dr. Cheng whom I find credible. 88.Regarding those photographs (under exhibit no. “CCMJ-88”) depicting F assisted N in brushing teeth coupled with F’s description of the scene, say, for example “12 September 2011 - Happy Brushing” and those photographs (under exhibit no. “CCMJ-7-23”) also with F’s description of the scene, say, for example “These photos were taken prior to the cleansing and brushing done by father” , these are all self serving by nature which I attach only very little weight. 89.M agreed and accepted the child had stained teeth. However, she denied not attending to such issue. She did consult N’s regular attending paediatrician Dr. Cheng Chun Fai on such issue. Dr. Cheng also confirmed such consultation did occur. Antibiotics and constipation problems 90.This is one of the other major complaints by F. F referred to the bottles of medicine given to him by M on his access days. Checking against the medical bills and the quantity of medicine remained in the bottles, he suspected that either N was not given medication by M when sick or that it was M’s trick adopted simply to deprive his right of access by saying that N was sick (see paragraphs 195 to 196 of F’s 5th Affirmation). It was also F’s major concern that N was given antibiotics either unnecessarily or improperly. Photographs showing bottles of medicine were then produced (see exhibit no.“CCMJ-49”, “CCMJ-50”, “CCMJ-100”, “CCMJ-101”). At one stage F doubted Dr. Cheng’s stance not being neutral and also upon his prescription of antibiotics as ‘stand by’ medicine (see paragraphs 3 to 4 of F’s 7th Affirmation). F produced his witness Dr. Leung’s medical certificate and bottles of multi-vitamins (as exhibit “CCMJ7-1”) to show that N was not sick on 3 November 2011 and required no medication. 91.F referred to N’s constipation problem in paragraphs 199 and 201 of his 5th Affirmation. The issue as to suitability of M giving N elderberry juice was canvassed at paragraphs 202 and 203 of the 5th Affirmation. Suffice to say is that F was discontent with the level of care provided by M to N. 92.Dr. Cheng both in his Affirmation and oral testimony gave a detailed account of why and how antibiotics were prescribed for N. He felt strongly to the criticisms levelled against him by F as to any ‘improper’ antibiotics prescription. I find it is unfair to Dr. Cheng that F, not being a medical practitioner by profession and in the absence of any cogent, compelling and contemporaneous medical evidence, to comment on Dr. Cheng’s professional judgment and diagnosis leading to the prescription (including antibiotics) given to N. I am prepared to take judicial notice that medical opinion does vary within acceptable parameters which may lead to prescriptions on a particular treatment not being identical between doctors. I am also prepared to take judicial notice that it is not uncommon for prescribed medication (including antibiotics) to be ‘put on hold’ for a short while to wait and see how the symptoms develop. 93.M’s evidence in reply to F’s complaint about use of antibiotics or medication is that she simply followed what Dr. Cheng had advised her to do. There is no conflicting evidence from F to show that M had not followed Dr. Cheng’s advice given as to N’s prescription, including the use of antibiotics. I do not find those photographs on medicine bottles with whatever quantity of medication left over as evidence of M not following doctor’s directions. It is plainly unfair and improper to draw such inference from the quantity of medication left as evidence of fact that N had not been given proper medication when needed or any improper use of medication as is now alleged by F against M. That being the case, it might be the reason why F’s challenge falls principally upon Dr. Cheng on his prescription and use of antibiotics as opposed to the mother for not following doctor’s advice on usage. Dr. Leung’s report does not assist F’s case on this issue. Dr. Leung was, in my view, simply providing his views and opinions as to accepted practice on prescriptions and not any further than that. Dr. Leung is not the treating doctor on those occasions when N needed medication. In my judgment, F’s complaint on improper or excessive use of medication and antibiotics must fail. 94.There are produced as exhibit “CCMJ-94” photographs of stool in diapers of N; photographs of N which F alleged that N had suffered from nausea, weakness and sign of dehydration; series of email exchanged between F and M on cause of N’s constipation linked with the consumption of elderberry juice. There are also produced as exhibits “CCMJ-95”, “CCMJ-96” and “CCMJ-97” another set of emails exchanged between F and M covering various topics including antibiotics and constipation issues. 95.Dr. Leung in his report only mentioned health claims of elderberry juice is still largely non-evidence based at the moment. There were individual reports of poisoning from wild elderberry juice on the contrary. The decision to take should be very careful and generally nutrients and trace materials obtained from a balanced diet should be emphasized rather than nutritional supplements. In my decision, Dr. Leung’s report in relation to the elderberry juice also does not assist F’s case on this issue. In any event, elderberry juice was ceased to be given to N by M in order to avoid further confrontation rather than acceptance of F’s complaint. 96.In my decision, F’s complaint about N’s constipation, even if properly raised and the cause of it justified by evidence (which I made no such finding), could hardly substantiate any claim of insufficient and improper care of M to the level or extent that the M should not be a suitable custodian parent. In fact, it is my finding that F is unable to prove, on balance of probabilities, that N’s constipation was caused solely by the consumption of elderberry juice. Thus, I find F’s complaint on the issue of elderberry juice unfounded and unsubstantiated. Bow legs 97.It is F’s case that around May 2010 he noticed N had “bow legs”. This tied up with F’s complaint against M giving N to wear unfit and improper shoes. It was also linked to the F’s concern that N is walking tip-toe and sometimes without maintaining a proper gait. F also noticed N had poor foot arches and bent knees. 98.There is produced as exhibit no. “CCMJ-90” a report prepared by Essence Rehabilitation Centre headed “Physiotherapist Report” prepared by registered physiotherapist Mr. Lam Chi Shing, Stanley (“Dr. Stanley Lam”). This report consists of 31 pages including a number of photographs on N’s legs. There are also produced as exhibit no. “CCMJ-91” a series of photographs with description from F as to different exercises given by him to the child N as recommended by Dr. Stanley Lam. F also produced as exhibit no. “CCMJ-92” various photographs of shoes given by M to N in August and September 2011 together with another series of emails exchanged between the parties on this issue. Same as in other emails between the parties, it can be seen that they were nowhere close on whether N suffered from the alleged ‘bow legs’. 99.M had consulted Dr. Cheng on the issue of ‘bow legs’. She was advised by Dr. Cheng that N was not suffering from ‘bow legs’. As to the complaint of giving N over-sized shoes, M denied. She testified the shoes in question were not over-sized. In fact, a pair of which was purchased in one of the reputable chained stores by the name ‘Dr. Kong’ specialising in children’s footwear. 100.I have a few observations. 101.First, same as in the complaint of ‘stained teeth’ whereby a report by Dr. Wor Lam was produced without calling the maker, the registered physiotherapist Dr. Stanley Lam was also not called to testify as an expert witness or otherwise. Therefore, the contents of both reports of Dr. Wor Lam and Dr. Stanley Lam cannot be accepted (also upon other procedural grounds I set out below) without the makers available for examination. The Court cannot simply accept the contents of these reports at their face value as evidence of fact. 102.Practice Direction 15.12 Part G paragraph 9(6) expressly refers to Order 38, Part IV – Expert Evidence, applicable in family cases. F who has all been legally represented throughout the entire proceedings from the very beginning and with Counsel assisting, has not at any stage applied for Court’s direction on adducing Dr. Wor Lam’s and Dr. Stanley Lam’s reports as expert evidence. This is required under Order 38 rule 36 of the Rules of the District Court unless all parties agree on such production. These 2 reports merely came in as exhibits to F’s Affirmation. Order 38 rule 36 provides :
103.Moreover, under Part K of Practice Direction 15.12 on Expert Evidence, it provides :
104.On the question of expert directions, Mr. Edward Chan, solicitor acting for M, frankly admitted to me during the course of trial that he personally was not aware of the need for expert directions in family cases. Therefore, it is only fair to say that Mr. Edward Chan would not be in any position to agree or not agree on the reports by Dr. Wor Lam and Dr. Stanley Lam to be adduced as evidence without expert directions being obtained in advance from the Court. 105.Even on the basis that there was no objection from Mr. Edward Chan on both of these reports to be produced, I decided not to accept them as expert evidence for want of compliance with Order 38 rule 37A and rule 37C of the Rules of the District Court, which provides :
106.Having said so, I have also considered from the perspective whether these reports could be considered as “non expert reports’ and thus the lack of expert directions would not affect their admissibility. However, the fact remains is that since the makers Dr. Wor Lam and Dr. Stanley Lam were not available for examination as to their reports, these if I may so called them ‘non expert reports’ attract no evidential value even if they can be admitted as evidence. This is particularly the case when it was F who had, for the purpose of collating evidence for this litigation, unilaterally arranged and paid for all these reports. I must add that the situation of Dr. Cheng is different from Dr. Wor Lam and Dr. Stanley Lam. Dr. Cheng had filed an Affirmation and testified as a witness of fact. The same simply does not happen with Dr. Wor Lam and Dr. Stanley Lam. 107.Dr. Cheng in his Affirmation and oral testimony disagreed N had suffered from any ‘bow legs’ which F had now so alleged. Dr. Cheng has given his views as to how to diagnose a person whether he is suffering from ‘bow legs’. The physical observation has to be taken on a straight frontal view with both knees touching each other on a horizontal perspective. He also demonstrated in Court as to the posture for such an observation. He highlighted to me that those photographs of N’s legs in Dr. Stanley Lam’s reports all of which were taken from a side view of the leg posture to be methodically incorrect. Although I am convinced by Dr. Cheng’s professional knowledge, I must say that this part of Dr. Cheng’s evidence, different from his evidence on stained teeth, related to his professional expertise. Such evidence should fall within the ambit of ‘expert’ evidence which could only be admissible upon compliance with the relevant procedure including expert directions obtained in advance. Mr. Edward Chan for M had already explained to me why those pre-requisites have not been met. Accordingly, I must say that this part of Dr. Cheng’s evidence is inadmissible. However, I find F is not in any better position because the evidence he principally relied upon for such issue is the report of Dr. Stanley Lam which I have already found also inadmissible, whether as expert evidence or otherwise (see paragraphs 101, 105 and 106 of this Judgment). Since the issue of “bow legs” was raised by F, he has to prove it by evidence on a civil standard. 108.It is worth to note that even F’s witness Dr. Leung, in his medical findings on N’s physical condition, there were no findings of ‘bow legs’ except that N has ‘’knock knee’ associated with genu valgum. At paragraphs 3 and 4 of Dr. Leung’s conclusion (at page 1679 of the Trial Bundle), he said :-
Paediatric sub-specialty.
109.Having read Dr. Leung’s report on the other issues such as leg deformity, the inter-relationship between over-sized shoes and leg deformity, possible hinderance of physical development and possible detriment to psychosocial development, tip-toe walking arising from loose shoes so on and so forth, I find that Dr. Leung was not providing any solid and conclusive evidence capable of supporting F’s series of allegations against M. This can be seen from Dr. Leung’s letter (at page 1674 of the Trial Bundle) where he said :-
110.Regarding Dr. Leung’s statement under the heading of “Leg deformity” in his report (at page 1676 of the Trial Bundle) where he said “My conclusion goes in line with their physiotherapist Mr. Lam’s Reports”, when he was obviously referring to and adopting Dr. Stanley Lam’s report. My views are that Dr. Leung could only adopt those evidence which are admissible in the first place. Even if admissible, there is also the problem of secondary hearsay. I have already found Dr. Stanley Lam’s report not being admissible or, even if admissible, bears no evidential value (see paragraphs 101, 105 and 106 of this Judgment). Dr. Leung’s statement could not cure all such fundamental flaw. My overall view on Dr. Leung’s evidence is that he was mainly stating his views and opinions as a paediatrician based on the information available and provided to him. Dr. Leung, having set out his conclusions, he said (at page 1680 of the Trial Bundle) :
111.In the circumstances, I find F’s allegation of “bow legs” unsubstantiated for want of evidence. Over-sized shoes and Tip Toes walking 112.F also relied upon Dr. Stanley Lam’s report on these complaints. Following my findings on the admissibility issue and evidential value of Dr. Stanley Lam’s report under paragraphs 101, 105 and 106 of this Judgment; also my views on Dr. Leung’s evidence under paragraphs 108 and 109 of this Judgment, there is virtually no evidence to substantiate F’s case that the shoes provided by M to N were all over-sized which had caused N to develop tip-toes walking. For the reasons which I have already set out, I cannot accept the contents of Dr. Stanley Lam’s report at their face value as evidence of fact nor Dr. Leung’s evidence capable of assisting F’s complaint on all these issues. 113.F at his exhibit nos. “CCMJ-98” and “CCMJ-99” produced notes of memo of Professor Albert M. Li, a paediatrician at Prince of Wales Hospital, on the physical assessment of the child N. I find these notes of memo are of no evidential value for the same reasons I set out for Dr. Stanley Lam’s report. Other areas of complaints 114.In addition to those health issues concerning stained teeth, antibiotics, constipation, bow legs, over-sized shoes and tip-toes walking, there are also complaints of M enrolling the child with ballet classes which further deteriorate N’s “bow legs”. To avoid further disputes but without any admission to such complaint, M through her lawyers had agreed to cease N’s ballet classes. F in his 5th Affirmation raised his concern on other areas affecting N. This include, namely :
115.I do not intend to go into each and every personal accusations and grievances within those paragraphs of F’s 5th Affirmation I referred to above which form the basis of those areas of complaint. The Court’s position on making findings, in so far as the accusations are concerned, remains the same as I have stated in paragraph 42 of this Judgment. Video clips and photographs 116.Regarding those video clips and photographs produced by F, I do not place any weight or give any evidential value to the contents thereof given the fact that they are all self serving and capable of being manipulated. I believe common sense and logic dictate that only the best scene will be shown and displayed as one’s evidence. Social Investigation Reports 117.I will now deal with the more important and substantive evidence of social investigation reports. 118.There are altogether six (6) social welfare reports, all prepared in Chinese, namely:
119.Miss Ma Lai Yan (“Miss Ma”) has been the case officer since the beginning of this case. Miss Ma has been a social welfare officer for about 17 years with around 5 years of experience in such field of investigation. She confirmed having prepared 40 odd reports of this kind. On the issue of custody, Miss Ma’s reports dated 14th August 2010, 20 October 2011, 15th February 2012 and 17th July 2012 are of particular relevance. The other report dated 7 October 2010 concerned question of interim access only. 120.The other social welfare officer Mr. Wong Chiu Put’s report concerned the access for the period between August 2009 and May 2010. His report also referred to the meeting of the parties on 19 July 2009. For the present custody trial, I will not go into any further of Mr. Wong’s report. As I have accepted the evidence of M’s elder brother as to the event of meeting on 19 May 2009, I find the testimony of Mr. Wong in Court not of importance since he was not present at the meeting. Mr. Wong was only told what had happened at the meeting. Report dated 14/8/2010 121.This is the first report prepared on custody, care and control and access issues. Miss Ma found the parties are caring and loving parents, each had their own advantages in their respective cases. However, in her conclusion, she noted parties held different views on caring issues over N. Both parties acknowledge that they would be attending parent counselling hoping to minimise any conflicts over caring issues. On such basis and accordingly, Miss Ma concluded the parties could be granted joint custody of N; M be given the care and control with reasonable access to F. She also provided a defined time for F to have access. From paragraphs 25 to 29, she said :-
122.It can be seen that whilst Miss Ma noted the parties’ discrepancies over caring issues but still recommended joint custody. This was obviously premised upon the parties’ would communicate with each other to work out solutions with N’s best interests in mind. 123.In making the recommendation, I noted Miss Ma had taken into account the fact that M had been the sole and primary care giver of N since birth, N’s emotion and attachment to M wholly reflected the degree of care provided by M. At the time of this report, N was about 1 year and 9 months old. Report dated 20/10/2011 124.This is the report prepared in anticipation of the November trial. There has been a lapse of 14 months since the first report on custody and related issues. I noticed that on the day before (i.e. on 19/10/2011) F had filed his 5th Affirmation (75 pages of 254 paragraphs and 82 exhibits) which should have been filed 11 months ago as ordered by the Court. As I stated in paragraph 29 of this Judgment, the antagonism between the parties had escalated. 125.Miss Ma noted the parties were unable to build up any trust or communicate amicably to decide upon matters to the best interests of N. She also noticed that the child N had displayed resistance to F and M whilst the other parent was present during access. In her view, this demonstrated the conflicts between the parents had already caused a negative effect on N. Accordingly, she was not in any position to provide further recommendation on custody before getting to know N’s psychological condition and needs. She then suggested a clinical psychologist report be first obtained. 126.At paragraph 22 of this report, Miss Ma said :-
127.The November trial was then vacated and re-fixed to 29 February 2012. There are directions for updated social investigation report to be ready 14 days before the re-scheduled trial dates. Accordingly, Miss Ma produced her report dated 15 February 2012. Report dated 15/2/2012 128.At the time of this report, the clinical psychological report had not yet been ready. Therefore, Miss Ma was yet unable to provide her updated recommendation without the psychological report be available to her. She maintained her views of the importance of knowing N’s psychological condition before she was in a position to make any recommendation on custody and related issues. She said at paragraph 15 of this report the following :-
Report dated 17/7/2012 129.This is the latest report produced. The fact that this report was only submitted 7 days before the resumed trial on 24 July 2012 was because at one stage it was thought the parties had ‘settled’ the case. 130.Having considered the clinical psychological report of Miss Janet Tso and the overall situation, Miss Ma opined that it would be a better arrangement if N is to be under the continual care and control of M but full consideration ought to be given to F’s requested access. At paragraph 22 of this report, she said :
131.Miss Ma confirmed the contents of her report are accurate. In her view, both F and M are loving parents. She foresee the possibility of joint custody if the parties are able to attend parents counselling which at one stage seem to have happened. However, Miss Ma said parent counselling very much depend upon the parents’ motivation. She restated her findings that it would be better for N to be under M’s continual care. 132.I noticed that Miss Ma, in her latest report and oral testimonies, had not excluded the possibility of a joint custody order. This is understandable as she had repeatedly emphasised in all her reports that both parties are loving parents. In conclusion, Miss Ma confirmed her views that it would be better for N to be under the continual care and control of M. The issue thus remaining is whether, on the facts and evidence available, including the evidence of Miss Ma and the clinical psychologist Miss Janet Tso (whose evidence I will deal with later in this Judgment) whether the custody order should be a ‘joint’ one for both parties’ or a ‘sole’ one for a party. If, on the latter, who should then be given the sole custody of N ? What kind of access order should be made ? Clinical Psychological Report 133.Miss Janet Tso (“Miss Tso”) in her oral testimony adopted the contents of her report dated 26 March 2012 as her evidence in chief. Her report sets out the evaluation process in great detail which rendered the report a very useful piece of evidence for this Court. The process she adopted in the assessment process is a so-called ‘multi-source, multi-method approach’. 134.Miss Tso gave a very detail explanation of the tests conducted and the findings arrived at which are set out in the following paragraphs in her report. I find them highly informative and extremely useful :
135.Miss Tso saw fit to include in her report N’s relationship with the extended family members of F and M. Under the heading ‘Collateral Information’ where she said :-
136.Having conducted the assessment, Miss Tso expressed her concern over N which can be seen from the following paragraphs :
137.Luckily, Miss Tso concluded that N is not suffering from any emotional or behavioural problem. She said :
The issue of ‘Care and Control’ 138.It is clear from the above that both Miss Wong and Miss Tso arrived at the same conclusion that M should continue to have the care and control of N. They also shared the common views that it is important for F to have regular and frequent access to N. 139.Before finally deciding upon the issue of care and control, I believe it may be useful to go through the ‘check list’ adopted from the English Children Act 1989 which was referred to by the Law Reform Commission in Hong Kong in its report in March 2005, which may shed some light as to where N’s best interest lies. 140.Considering N was only 3 years and 3 months of age at the time of trial in February this year and the particular facts of this case, those items under the ‘check list’ which are of relevance are :
141.M has been the primary care giver for N since birth. Subsequent to the moving out from F when N was only about 6 months old, M continues with her role as the mother and primary care giver and N is now approaching the age of 4. Here comes in 2 questions, namely, is there the need to maintain the ‘status quo’ and the question of suitability of caring ‘young child’. 142.In so far as the question of status quo is concerned, Hon Rogers VP, in the case of L v C (CACV No.333 of 2007) had said :
143.In the L v. C case, the Court of Appeal overturned a custody order of a child of 5 years of age granted to the father on the basis of the statuo quo being working satisfactorily. The child was then returned to the mother. In so far as the role of the natural parent being the primary care giver is concerned, his Lordship said :
144.In the present case, we are dealing with a very young child N who has been taken care of since birth by the non-working natural mother M. F has all along been a working father. He was employed as the Director of Business Department in a listed company starting on 3 March 2008. The contractual monthly salary at commencement of employment was HK$100,000. F had indicated to Miss Ma that if he was granted custody of N, he would resign to look after N on a full time basis (see paragraph 10 of Miss Ma’s report dated 15 February 2012). I have reservation about F’s resignation plan; in particular, F had deposed in his Affirmation that his family members are ready, willing and able to assist him in taking care of N. 145.On the assumption that F did resign to take care of N, with all things being equal and also putting aside the status quo factor, there were English and Hong Kong cases holding the views that a child of tender years should be with the mother. 146.In H v. H [1969] 1 All ER 262 where Salmon LJ at page 262 said :
147.In the Hong Kong Court of Appeal case of R v. Y (CACV No.193 of 2010), a case involving an 8-year old girl and a 6-year old boy, where Hon Rogers VP said :
148.For the sake of completeness, I would recite the words of Lord Jauncey in the Brixey case at page 504 :
149.His Lordship went further to summarise the approach to be adopted by the Court :
150.As I have found against F on all his criticisms against M as to her suitability and ability as a custodian parent, coupled with the investigation and recommendation of the social welfare officer Miss Ma and clinical psychologist Miss Tso which I accept, I believe the ‘check list’ factor as to any likely effect on any change of circumstances must be in favour of M. M has been looking after N full time since N’s birth. The child’s age and maturity factor would also favour M in light of those cases and authorities which I have referred to above. Regarding the factor as to any harm the child has suffered or is at risk of suffering, clinical psychologist Miss Tso found N has already been embroiled in the parental conflicts, her psychological well being may be at risk and she ought to be pulled out of the middle between the parents. Taking this into account, I am convinced that it is in N’s best interests to be under the continual care and control of M. And I will so order accordingly. ‘Joint’ or ‘Sole’ custody ? 151.It now remains the question of custody. Two cases are of particular importance which I will now refer to, namely, Y v. P (CACV No.140/2009) and PD v. KWW (CACV No.188/2009). 152.In the case of Y v. P, Hon Rogers VP said :
153.In the later case of PD v. KWW, Hon Hartman JA (as he then was) analysed the difference between joint custody and sole custody and found that the difference is a fine one. His Lordship then went on to consider the proper approach to be adopted when considering joint custody. Quoting the relevant passages in His Lordship’s judgment :-
154.It is unfortunate to see F and M are so sharply divided on virtually all matters concerning N. Considering the facts of this case, I am also convinced that both of them are loving parents and each of them has their own advantages. But for their sharp differences, lack of trust and difficulty in communication, I would have no hesitation that a joint custody order must be the one and only one choice. Given the fact that both of them conceded the problems in existence between them at the present moment and therefore joint custody simply does not work, I was left with no other choice for the time being except to make a sole custody order. The parties’ awareness of a joint custody order simply does not work was also recorded in paragraph 22 of Miss Ma’s latest report dated 17 July 2012 as follows :-
155.Having considered all the circumstances and the reports and recommendations of both Miss Ma and Miss Tso, I believe the balance tips in favour of M if a sole custody order is to be granted. 156.I fully agree with Miss Tso that given the fact that the child’s emotional closeness to her mother and the continuity as the primary attachment parent, greater consideration should be given to the mother regarding the child’s care and control. In my view, to give the legal custodial right to the parent who was entrusted with the child’s care and control facilitates the upbringing of the child. However, in a situation where both parents do not trust each other, if the custodial right is given to one parent with the care and control given to the other parent, that simply does not work. 157.In my Judgment, I will grant a sole custody order with care and control to M in respect of N. Father’s access 158.Both Miss Ma and Miss Tso emphasized the importance of and highly recommended regular access be given to F because N needs to maintain good relationship with F. This is in N’s best interests. Miss Ma in her latest report even recommended this Court to give full consideration and arrangement for F’s requested access in the following words :-
159.I am prepared to adopt the recommendation of Miss Ma that general access should be given to F. The only issue which I am concerned about is to what extent the general access is to be given and how such general access can be fruitfully exercised bearing in mind the on-going problems between F and M since separation, leaving aside any hard feelings the parties might have as a result of this piece of litigation. The Way Forward 160.Given full consideration of the facts and circumstances of this case, I believe the fundamental problem lies with F and M individually rather than N physically or psychologically. The only solution which I can think of is that both parents (i.e. F and M) should undergo extensive parent counselling with the common aim of building trust and confidence with each other. This is beneficial in the short term to minimise any potential conflicts over access and; in the long term, to achieve the goal of joint custody over N. 161.Both F and M should be aware that N will be turning to 4 next month. N has been caught in between their conflict in the past 3 ½ years and had, unfortunately, subjected to various tests, assessments, evaluations and checking which, with hindsight, may not be necessary or even can be avoided. In the next 14 years to come before N coming to full age, any further disputes or differences between F and M in decision making for N would only jeopardize N’s well being rather than promoting N’s development. 162.Having seen F and M in Court for more than 2 weeks, I believe both are sensible and loving parents and will be willing to look forward to N’s best interests on all matters. In order for me to consider details of the general access to be given to F, I need to have further submissions from the parties on their willingness to participate in parent counselling and also the latest daily schedule of N; in particular, I noted the new school year has just started. 163.I also noticed that there had been arguments in the past as to hours of access, general holidays arrangement and permission to take N out of jurisdiction for pleasure trip. In resolving the forthcoming general access of F, I hope to be able to cover all these issues as well. 164.Following my Judgment on custody, care and control of N be granted to M with general access to F, I now direct a short hearing be fixed with one hour reserved for determination on details of the general access. Before determination on details of the general access, the present access arrangement shall continue until further Order. 165.Accordingly, I grant leave for both parties to submit written submissions on general access arrangement within 14 days from the date of this Judgment. Costs 166.Given the nature of this dispute, I will make no order as to costs including all costs reserved. As M is legally aided, her own costs be taxed in accordance with Legal Aid Regulations. Orders 167.I now make the following Orders :-
168.The costs order nisi will become absolute unless any party applies to vary the same within 14 days.
Miss Jennifer Tsui and Mr. Felix Li instructed by Messrs. Michael Li & Co, (for trials on 29 February, 1, 2, 6, 7, 8, 9, 27,28 and 29 March 2012); and Miss Annie Lai instructed by Messrs. Lam, Lee & Lai, (for trials on 20 April, 30 May, 24, 25, 26 and 27 July 2012) Solicitors for the Applicant Mr. Edward Chan of Messrs. Chan, Wong & Lam, Solicitors for the Respondent Please refer to HCMP178/2013 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMP 67/2010