Yn v. Kjs

FCMC 16330 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16330 OF 2009

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R U L I N G
(Fact finding hearing and access)

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Introduction

1.This was a short fact-finding hearing arising out of a number of incidents described by the Social Welfare Officer in her report dated the 23 January 2013. I have heard evidence from both parties and the Social Welfare Officer, Miss K.

2.The main issue, from the courts perspective, is whether or not it is possible to give effect to the Social Welfare Officers recommendation of unsupervised access for three hours once every two weeks, given the incidents she described in her report and the very high level of conflict that continued to be evident from the interactions between the parties.  

Background

3.Although this is a fact finding hearing it seems to me important to put this hearing in its proper context. In order to do so I intend to briefly set out the background to the parties’ marriage and the litigation to date.

4.The parties married in December 2006. The petitioner mother is from the Mainland and the father is from the United States of America. On the 31 December 2009 the mother issued proceedings for divorce based on the father’s unreasonable behaviour. This was then a short marriage of some three years duration. There are two relevant children – an elder child R, who is the mother’s child from a former relationship and J.  J was born in June 2007.

5.The parties have been engaged in conflicted proceedings from the beginning. They include an application by the mother prohibiting the father from taking the children out of the territory, a non molestation and ouster application issued by the father against the mother (which led in part to the father looking after both children at the former matrimonial home), a defended suit and ongoing difficulties with respect to the care of the children. The father has repeatedly accused the mother of being violent. The mother likewise accuses the father of similar violence. It seems that there have been a number of incidents necessitating police involvement. In September 2009 the mother was convicted of common assault and bound over for 12 months. In November 2009 the father accused the mother of assaulting R. It seems that she used excessive force when disciplining R. A multi disciplinary case conference was held in December 2009 and concluded that this was not a case of child abuse but of inadequate parenting. However the mother was charged with a criminal offence of wilful assault on a child under the age of 16 years and consequently she moved out of the matrimonial home. Originally the mother was ordered by the magistrate not to see R. This ban was lifted in March 2010. However it seems that both R and the father gave evidence against the mother at that trial.  It is hard to imagine the effect that this will have had on the family dynamic and in particular on the relationship between R and both of the parties. R is now nearly 11 years old. He would have been approximately 7 ½ years old at the time. The father says that the mother was also violent towards the parties’ former domestic helper.

6.Not surprisingly perhaps given this, difficulties continued with respect to the mother’s access to the children. The father alleged that she would come to the former matrimonial home unannounced.  On the 30 March 2010, following the lifting of the magistrate’s ban, an order was made by agreement for joint custody of both children with care and control to the father and reasonable access to the mother. The decree nisi was pronounced on the 15 July 2010 and the decree absolute on the 6 September 2010.

7.On the 29 December 2010 the mother issued a Notice of Application seeking sole custody and care and control of both children. She was by that stage in receipt of CSSA. She also sought maintenance for both herself and the children from the father.   In his affidavit in reply the father made very serious allegations against the mother including allegations of ongoing violent behaviour.

8.On the 18 June 2011 the mother accused the father of sexually abusing J. J was taken into care as a result – where he remained for the next 8 months pending a Police investigation. A multi disciplinary case conference was called. It was found that this was not a case where the father had sexually abused the child. There were however concerns about the mother’s use of excessive force against both of the children. Notwithstanding that it was agreed that R should continue to live with his mother. This has been a matter of some concern to the court. It seems that the father was less keen on claiming R’s custody as evidenced in the Social Welfare report of the 24 March 2010. This is despite the fact that originally R had seemed closely attached to both parents and had been treated as a child of the family. The father was concerned however that he was unable to properly supervise R’s homework (which was in Chinese). He also pointed out that he was not R’s natural father – although it seems that R may not initially have been aware of that. The father was also keen to bring down the level of ongoing conflict between the parties. 

9.On the 2 April each party’s applications in relation to the two children was set down for a three day trial. An updated social welfare report was called for together with a clinical psychologists report. They make for very difficult reading. The father had by this stage given up any claim in relation to R. R was also reluctant to see the father. It is not clear the reasons for this.

10.In December 2011 the husband remarried. His present wife is also Chinese. They had a further child, Y in June 2012.

11.The clinical psychologist recommended as follows in her report of the 2 April 2012:

12.1 Some points are worthy of note in considering the best living arrangement for J. First, both R and J would fare better to have the company of each other. Particularly for R, the companion by J would serve as a buffer against the stress that he encounters in everyday life.  Second, if J lives with his mother, there may be a chance that he will be drawn into conflicts between the parents.  Third, if J lives with his father, he can enjoy an environment which is relatively free from parental disputes.  It is noted that he would soon have a younger sibling from his step-mother.

12.2 After considering the risks and benefits of each living arrangement, I hereby propose the following recommendations to the Court for consideration:

12.2.1  I recommend that Mr. K [the husband] be given greater consideration in having J’s custody.

12.2.2  The present practice in visitation is that Ms. Y [the wife] would call the step-mother to request access, sometimes within a very short period of time, or she would negotiate directly with Mr. K for visitation over the phone.  The latter creates a lot of enmity between them.  In view of this, I recommend a very structured and well-defined day visitation schedule, so that there is no room for misinterpretation.

12.2.3  The father’s request that visitation be under his or his present wife’s supervision is understandable.  If his request is endorsed by the Court, he should comply with it strictly and he should not use any excuse (e.g. busy time schedule, his unavailability) to delay or withhold access.

12.2.4  I recommend R to continue the psychological treatment which in my understanding has just commenced in this psychological unit.  R receives psychological service as a condition for the Care of Protection Order.  However, as the Care and Protection Order will expire in August this year, I have a worry that the mother may stop him from continuing the service.  In view of this, statutory supervision may be needed in order to effect cooperation from the mother.  On the other hand, it is beneficial for R to receive a psychiatric evaluation for his suspected learning disorder.

12.2.5  I would urge Ms. Y to keep her resentment toward Mr. K strictly as a matter between them, and to keep the children away from their conflicts and disputes. It is beneficial for her to receive psychotherapy in order to help her better handle the stress and to resolve the hurts resulting from the failed marriage. In addition, she needs to learn to empathize with the children and to acquire effective ways of anger management.

12.2.6  I sincerely hope that both parents can put aside their differences and grievances and understand that they can co-exist as J’s parents in relative peace.  By working together toward the welfare of J and supporting his relationship with the other parent, it can benefit the child’s psychological development.

12.On the 25 October 2012 the parties reached consensus. They agreed that the mother would have sole custody of R. The father did not seek access. The father was granted sole custody of J with defined access to the mother of three hours every Saturday afternoon. It was agreed that the access would be supervised in the first instance leading to unsupervised access over time. I asked for a Progress Report in three months. This hearing arose out of that report.      

The Progress Report dated the 23 January 2013

13.The Progress Report outlines serious and ongoing conflict between the parties – to the extent that the father’s new wife refused to continue to supervise the access. The mother, as feared by the Clinical Psychologist, had terminated the psychologist’s service for R. She is not seeking any assistance for herself.

14.The social welfare officer reports that

9. J informed the Respondent [the husband] and Madam C [the step mother] that the Petitioner always asked whether the Respondent had beaten him up and given him enough food during access as he was losing weight.  When J said the Respondent did not beat him up, the Petitioner would ask J not to tell lies because she knew the Respondent had done so.  Moreover, the Petitioner asked J to kill Y, his half younger brother.

15.The mother has denied these allegations – both in the report and in the witness box.

16.J for his part told the social welfare officer that

22. J also said that he was happy to live with the Respondent, Madam C and Y.  He disclosed to the Social Welfare Officer that the Petitioner told him the Respondent was a bad man but he did not believe it.  Moreover, the Petitioner asked J whether the Respondent had beaten him up.  When J told her that the Respondent had not beaten him up, she said she would bring him to a bad place but J could not recall the details.  Furthermore, J said the Petitioner did not ask him to kill Y but she wanted to kill Y.  J told that he liked playing with Y and would not kill him.  In addition, J revealed he was afraid that the Petitioner would not bring him back to the Respondent after access though she did not do so.  Besides, J admitted that he cried during access since R hit his stomach many times but the Petitioner did not aware of it.

23. J expressed that he was unhappy in access.  On one hand, he disliked R who hit him.  On the other hand, J thought that the Petitioner was crazy and he wished to see her less frequent.  J said he would like the duration of the day access to be shortened to one hour every time.  However, he was unable to give his view on the frequency.

17.Although he is only 5 years old – these comments on their own should be sufficient to cause alarm.

18.The clinical psychologist is also reported as saying that

18. According to Ms L, the clinical psychologist, J’s psychological condition is stable.  He is attached to the Respondent and Madam C who provide him proper care and supervision.  Moreover, J maintains good relationship with Y.  However, J’s emotion is upset by conflicts between his parents.  He also has negative feelings towards the Petitioner and R since J thinks that the Petitioner is crazy and he has sibling rivalry with R.

19.Notwithstanding all of this, the social welfare officer has recommended unsupervised access on alternate Saturdays from 4pm – 7pm.

20.On the court’s own volition, following receipt of the report, access was varied from the 31 January to weekly access from 9:00 am – 11:00 am every Saturday morning at the offices of the Social Welfare Department pending this hearing.

The law in Hong Kong

21.The general principles governing applications relating to children’s issues are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which states that:

GENERAL PRINCIPLES

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -

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

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

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing;

22.In so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words the child has the right to see and to have a relationship with both of his parents. The court is primarily concerned with the welfare of J (and indeed R) and not the relative rights of each of the adults with respect to them.    

The issue

23.What access arrangement should now be put in place?

Discussion

24.During the hearing the Social Welfare Officer told the court that she had asked J about the change in the access arrangement and that he had confirmed that he was happy to see his mother at the offices of the Social Welfare Department. He added that during a recent access visit (23 March 2013), whilst being taken to the toilet by the mother, she had asked him if his father had touched “his butt”. This issue was investigated during the hearing. The mother claimed that she had merely enquired into who helped him to clean his bottom given that it didn’t seem very clean. I did not find the mother very credible on this point and generally. Understandably given the history of this case, the father is concerned about other unsubstantiated accusations being made against him.

25.The Social Welfare Officer maintained her view that the parents should try unsupervised access and that this should be introduced gradually. She pointed out that supervision by the Social Welfare Department was only ever supposed to be a short term measure. She suggested that access should take place four times per month – twice at the offices of the Social Welfare Officer and twice unsupervised.

26.Whilst I would accept that in an ideal world supervision by the Social Welfare Department should be a short term measure, I am concerned that there appears to have been very little analysis of the possible effect that unsupervised access might have on J given his tender years. Further little weight seems to have been attached to what he himself has said. I am also concerned about what appears to be the mother’s unpredictable and possibly damaging behaviour. J is not yet 6 years old. I am concerned that without proper supervision he might be placed in an untenable position. Similarly I am concerned that R may have already been placed in such a position. It seems to me that it will be impossible to monitor the situation without some level of supervision – at least in the short term. The Social Welfare Officer also appears to have taken the view that the problem is simply one that emanates out of the high level of conflict between the parties. I do not necessarily share her view.

27.As things stand at present the father has said that he hates the mother. He can see no benefit in J having a relationship with his mother. The mother for her part wants unsupervised access. In time she would like staying access. She clearly has no time for the father either.

28.In their closings the mother asked for the following:

17. …

1. Unsupervised day access from 10:00 a.m. to 12:00 noon on every Saturday;

2. Handover in XXX, Tin Shui Wai;

3. There be a supervision order for 12 months for R and J;

4. No order as to costs including the reserved costs orders made on 31^st January, 2^nd April and 18^th April 2013; and

5. Both parties’ own costs be taxed in accordance with the Legal Aid Regulations.

29.The father for his part suggests the following: 

30. It is therefore respectfully submitted that supervised access at the offices of the Social Welfare Department would be the most appropriate solution in the present circumstances, however the frequency of such access should be reduced due to continuing concerns as to the Petitioner’s negative influence on J.

Conclusion   

30.It seems to me that if there is to be any improvement in the present impasse both parties will need to have some form of ongoing psychotherapy/counselling. I have noted that the mother has already agreed that R should have therapy with a clinical psychologist. I will expect that to take place. I will further direct that both parties avail themselves of such therapy/counselling and report back to me with respect to that on the next occasion. In the meantime I will order that the present order of the 31 January 2103 should continue for the next 18 months i.e. that

The Petitioner shall have supervised access to J on every Saturday from 9:00 a.m. to 11:00a.m. at the office of the social welfare officer namely; Miss K in Tin Shui Wai, New Territories; J to be picked up and dropped off by the Respondent;

31.An updated SIR on the issue of access only shall be called for in 18 months time – reference to be made to both J and R.

32.Whilst I would accept that supervision is meant to be for a short period of time only – I think that the circumstances here are such that the supervision is justified.

33.I do not think that the situation will be helped by further reducing the periods of time that J spends with his mother.

34.Given that both parties are legally aided there will be no order as to costs including costs reserved on the 31 January and 2 and 18 April 2013. Both parties own costs to be taxed in accordance with Legal Aid Regulations.  

Mr. E. Ko of Messrs Edward Ko & Co appeared for the Petitioner

Ms. M. So of Messrs David Ravenscroft & Co appeared for the Respondent