Oyp v. Lkf

FCMC 7395/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 7395 OF 2012

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J U D G M E N T
(Custody & Access)

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1.This is the parties’ dispute over their younger child of the family, a son (“KY”) now 5 years old in his final year of kindergarten and has been residing with the Petitioner Mother and under her sole care since about February 2012 when the Respondent Father moved out of the former matrimonial home at Hung Hom, Kowloon with the elder child, a daughter (“KC”) now aged 8 ½ years to his current residence in Sheung Wan, Hong Kong, and whose care and control is not in dispute and is to be vested with the Father, with access to be given to the Mother, the extent and frequency of which although remain at issue between the parties but is relatively straight forward.  

2.As for the Son, the Mother has in fact at the commencement of the trial proposed that he should remain in her care only until the summer of 2015 when he will complete his kindergarten and will commence his primary education by attending a school in the Father’s neighbourhood, and when he will then go to live with the Father and under his care during his schooldays and only to spend time with her during weekends and holidays, thereby essentially conceding on most of his daily care and control to the Father, and with his custody which she proposes to share with the Father.

3.Accordingly the main issue between the parties has become very much narrowed down to what should be the living and care arrangement for the Son for the time being of what is essentially a very brief period of some 8 months until next summer, and normally one would have expected the parties to be able or willing to compromise by working out some sort of temporary arrangement for their son during that rather brief period instead of enduring an expensive and very often emotionally straining trial which eventually lasted 6 days, but apparently the Father insisted that the Son should immediately come and live with him and under his care without any further delay as he believes that certain behaviour and activities of the Mother in particularly of what he claims to be “cybersex” on the internet as well as actual sexual activities with various men at her home and in the presence of the Son have rendered it unsafe and unsuitable for the Son to remain in her care.

4.The Mother does not dispute that she did regularly engage in internet chatting with various men shortly around the breakdown of their marriage, but she denies any improper behaviour on her part in the presence of the Son, or that such activities would affect or impact on his physical or psychological well-being, or make her unsuitable to continue to care for him for the time being, and that in any event she insists that she has since 2012 after the Father had removed his desktop computer and terminated the internet service from their former matrimonial home ceased all such activities.

5.When these were not acceptable to the Father as believable, the trial proceeded to its full course with the evidence focused essentially on what exactly were those internet activities of the Mother, whether she is still carrying on such activities, their impact if any on the Son and for that matter the Daughter, and ultimately the question of whether it would be in his best interests in the circumstances to go now to be with his father and sister, or to remain in the care of his mother until the summer of 2015. There are of course other relatively minor or more straight forward issues such as the questions of joint custody over the children and the Mother’s access to them in future.  

Background

6.The Mother now aged 40 was born and raised in Guangdong, and upon completing secondary school she received training as a midwife working in a hospital in 1995, and in 2002 she became qualified as a medical practitioner and started working in a hospital in Guangdong.   

7.On the other hand the Father, who has just reached the age of 54, was born and raised in Hong Kong, and upon completing secondary education he initially worked as a technician in a telephone company, but has since 1997 taken over the management and administration of his family’s landed properties as well as investing in the stock and property markets.

8.The parties became acquainted in 2003 and got married the following year on 26^th March 2004 in China. After their marriage the Mother quitted her job in Guangdong and came to stay with the Father at his home in Valley Road, Hunghom, Kowloon (“Former Matrimonial Home”) on a two-way permit as a full-time housewife during which she gave birth to the Daughter and Son in 2005 and 2009 respectively.

9.Sadly the parties had since experienced marital discords and shortly after a particularly heated quarrel which led to police intervention, the Father moved out of the former matrimonial home in February 2012 with the Daughter into another property held in his name at Des Voeus Road West, Sheung Wan, Hong Kong, while the Mother and Son have since remained living in the flat at Hung Hom.

10.On 25^th May 2012 the Mother filed for divorce in these proceedings on Legal Aid against the Father based on his behaviour and sought custody of both children and general ancillary relief. Initially the Son was enrolled to a kindergarten in Central, Hong Kong, but has subsequently been changed by the Mother to his current school at Ma Tau Chung Nursery School in Kowloon City.

11.At the 1^st Appointment hearing on 13^th August 2012, when it became clear that the question of custody care and control of both children would be a serious issue, the social investigation report was called for and submitted on 15^th October 2012. That report, prepared by Social Work Officer Ms Yuen, revealed that the Son, then just slightly older than 3, was (and still is) suffering from a medical condition known as Glucose-6-phosphate dehydrogenase (G6PD) deficiency, a genetic condition that predisposes to hemolysis and resultant jaundice in response to certain foods, illness or medication, and with a weak verbal expression and resultant speech and communication problems.   

12.The report however was also of the view that considering the fact that the Mother was staying in Hong Kong on a two-way permit thereby affecting her availability to provide stable daily care for the children in Hong Kong, and concluded that the Father would be in a better position to meet the children’s various needs and recommended that he be granted the custody of both children with reasonable access to the Mother.

13.That recommendation was not acceptable to the Mother and therefore directions were given by this court on 24^th October 2012 for her to first file her affirmation for disputing custody, and to be followed by the Father’s in reply. It was in this affirmation of 19^th December 2012 that the Father first raised his allegations of the Mother’s improper sexual activities which he subtitled “Abnormal sexual inclination with multiple sexual partners, adulterous activities and cybersex activities in the presence of the children” after apparently obtaining numerous pages of screen captures of the Mother’s online conversations with various men in his computer which he had earlier removed when he moved out of the former matrimonial home in February 2012. 

14.In her affirmation in reply of 28^th November 2013 the Mother flatly denied these allegations, and explained that it was since 2008 when the Father started to reduce his intimacy towards her and eventually stopped any sexual intercourse with her after the birth of their son that she became lonely and frustrated and started chatting on online communication platform, but had never engaged in any improper sexual activities as alleged by the Father.

15.Given that these allegations were never revealed to Ms Yuen when she prepared her report, and with the parties’ agreement the Social Welfare Department was requested to submit a further report to investigate them and if true to report on their impact if any on the Mother’s care of the Son. That report was submitted on 17^th April 2014 by another officer a Ms Tsang which found no evidence of the Mother still engaging in those alleged activities or any impact on her care of the Son, but reached the same conclusion that the custody care and control of the Son be given to the Father.  

16.After an unsuccessful CDR hearing when the parties still failed to compromise, the matter was then set down for trial during which both parties as well as the involved Social Work Officers gave evidence. It was as noted above on the 1^st day of trial when the Mother made the said proposal regarding the son which was rejected by the Father for the reasons below. Both parties were also represented by counsel with Mr Adrian Leung for the Mother and Mr Giles Surman with Mr Samuel Yip for the Father.  

The Father’s Case

17.The Father’s case that custody care and control of the Son should be granted to him now rather than later in 8 months time can be summarised as follows:

(a)  the Mother’s cybersex activities are harm which the Son has suffered or is at risk of suffering;

(b)  the Mother’s indulgence in her online chatting has prevented her from or interfered with her parental care for the Son;

(c)  there are evidence from the social investigation reports of the Mother’s poor parenting such as the Son’s unsatisfactory school attendance; 

(d)  there were incidents to which injuries were caused to the Son while under her care that demonstrate the Mother’s lack of parental care or responsibility towards the Son;

(e)  the Mother’s status situation in Hong Kong is uncertain and unstable which will adversely affect her future care arrangement for the Son;

(f)  he has better resources and support in providing better parenting care for the Son and is better able to meet his growth and development;

(g)  it is imperative that the Son be able to enjoy the benefits and advantages of sibling reunion with the Daughter;

(h)  he has the support of the Social Investigation Reports.  

18.As for the Mother’s access to the Daughter, he proposes that it should be for visiting only on Saturday from 10 am to 7 pm so as not to disrupt her studies and to be in the company of his domestic helper to ensure that she is not at risk of any inappropriate behaviour of the Mother.

The Mother’s Case

19.The Mother as noted above agrees that custody care and control of the Daughter be to the Father and seeks only reasonable access to her including staying access, while she does not mind having the Father’s domestic helper to assist her during her such access.

20.As for the Son, she seeks his joint custody as well as to share his care and control care with the Father, but insists that until summer of 2015, the Son should remain in her sole care for the following reasons:

(a)  she has been the Son’s main carer since his birth and his sole carer since at least February 2012, and that the Son has developed a very close bonding with her;

(b)  due to the Son’s development impairment, he has to undergo therapeutic treatments include daily home trainings, and as she has been solely responsible for them all these years, she should be allowed to continue to do so until the trainings are completed by next summer, as she does not believe that the Father is capable of doing so for the Son;

(c)  any change to the Son’s current status quo can be chaotic and detrimental to him given that he is assessed to be slow in adapting to new environment, while the much longer daily travelling time for the Son to go from the Father’s home at Sheung Wan to his current school in Hung Hom and back would adversely impact on the Son’s daily activities which cannot not be in his best interests;

(d)  there should not be any disruption to the daily home training provided by her to the Son as she is experienced and well-trained to do so for the Son, while the Father has no such experience or training to help or train the Son, and may instead rely on his helper or even the Daughter, when neither is capable or experienced to do so either; 

(e)  that she has not engaged in any cybersex or indecent online activities as alleged by the Father or done anything to expose the children to any risk or harm, that she engaged in online chatting due to loneliness but that she has since changed her lifestyle by building a strong circle of friends consisting mainly of parents of the Son’s fellow students and by regularly attending community activities and therefore no longer engages in online chatting. In any event she no longer uses any computer at home other than her mobile phone for normal uses and hence the children will not be at any risk.   

Applicable Principles

21.The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child of the family are set out in s 3(1)(a) of Guardianship of Minors Ordinance, Cap. 13 (“GMO”) in that the court:

(i)  shall regard the best interests 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; and

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

22.The words “best interests”, which has only since 2012 replaced the word “welfare” in that Ordinance, are in fact synonymous with each other, and according to Rayden and Jackson on Divorce and Family Matters, 18th edition, Chap 36.14, welfare should be interpreted as follows:

“The word ‘welfare’ must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only; the moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded. ‘Welfare’ and ‘best interests’ are synonymous.”

23.In UK where the same welfare and now best interests principles apply to children matters and from which our s 3(1)(a) of GMO were derived, their courts are required to have regard to the matters specified in their Children Act 1989 which have come to be known as ‘the welfare checklist’, and consists of the following:

(a)  the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding)

(b)  his physical, emotional and educational needs

(c)  the likely effect on him of any change in his circumstances

(d)  his age, sex, background and any characteristics of his which the court considers relevant

(e)  any harm he has suffered or is at risk of suffering

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

(g)  the range of powers available to the court under the 1989 Act in the proceedings in question.

24.While Hong Kong has neither the Children Act nor similar welfare checklist, both our courts and the practitioners have found many of the matters specified in the UK welfare checklist relevant and helpful in arriving at what is the best interests of the child concerned, which has in fact been recommended by the Law Reform Commission for our legislation, although it is also said in Rayden that while there is a duty to have regard to the checklist, judges are entitled to have it assumed in their favour that they will do so, without subjecting them to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one, and that the factors in the checklist are not exhaustive of the matters to which the court may have regard (Chap 36.17).

25.It is therefore with these principles in mind that I shall now proceed to consider the relevant matters referred to above in deciding what should be the care arrangement for the Son in his best interests between now and next summer, in particularly the possible harm which the Father believes that the Son will be at risk if he is to remain in the care of the Mother for the next 8 months or so until next summer, starting first with the Social Investigation Reports, and as noted above there are 2 prepared by 2 different officers, with the earlier one by Ms Yuen on 15^th October 2012, and the more recent one by Ms Tsang on 17^th April 2014, to see what they have to say about that possible risk, amongst other relevant matters.

1^st Social Investigation Report

26.The 1^st report prepared by Ms Yuen and dated 15^th October 2012 (C/653) is for all intents and purposes outdated by now as at that time the Father’s issues over the Mother’s “cybersex” activities had not yet been raised to Ms Yuen, hence they were never investigated nor discussed in her report, although in her report about the Daughter’s views, there were indeed mentions about the Mother spending time on her computer in paragraph 25:

“Upon individual interview with KC by the Investigating Officer, KC was observed to be a sociable and expressive girl. She enjoyed her school life and liked playing with her friends. She said both parents did take care of her and KY when they lived together in the past which (Father) was responsible for marketing and cooking whereas (Mother) also cooked and bathed her and KY. KC shared that (the Father) always guided her schoolwork in the past as well as at present. When she approached (Mother) for schoolwork assistance, (Mother) usually spent time on the computer and asked her to seek help from (the Father)...”

27.It would also be relevant to refer to some other matters mentioned in the report concerning the care of the Son that I find pertinent to the application now before me, starting with the Son’s then “rather unsatisfactory” school performance and his medical condition respectively in paragraphs 12 and 14:

“12. 3-year-and-3-month-old KY is now a K.1 student in Hong Kong Young Women’s Christian Association Tai Hon Fan Nursery School in Central. With reference to his school reports in nursery class for 2011 – 2012, KY’s school attendance was rather unsatisfactory. In the first semester from September 2011 to January 2012, he was absent for 10 out of 90 school days. In the second semester from February to August 2012, he was absent for 32 out of 93 school days.

   14. KY is suffering from Glucose-6-phosphate dehydrogenase (G6PD) deficiency. Owing to his weak verbal expression, KY was referred by his nursery school to St. James’ Settlement Uncle James Child Development Centre for a screening assessment in late November 2011. The assessment result showed that at the age of 2 years and 5 months old, KY’s ability in both verbal comprehension and verbal expression was equivalent to 1 year and 6 months old. He was therefore suspected to have speech and communication problem.” 

28.Ms Yuen also reported in paragraph 32 that since the Son started kindergarten in September 2012, he had been frequently late for school during the first month as the Mother explained that she could not wake him up in the morning and that the travelling was long. Ms Yuen then concluded her report with her recommendation on the question of custody and access, after first stating her reasons as follows:

“35. … In view of the tense and conflicting relationship between (Mother) and (Father) that involved the use of domestic violence in the past year, the parents seem to hardly engage in positive mutual communication. Hence, joint custody may not be considered working in this case.

36. Regarding the care and control issues, the Investigating Officer weighs the present care arrangement, the proposed care plan in meeting various developmental needs of the children, the parent-child relationship, the sibling relationship and the parents’ cooperation in facilitating the access for the children. For the present care arrangement, KC is under adequate care and proper supervision from (Father) with the assistance of a domestic maid. She maintains stable and regular school attendance with satisfactory academic performance. On the other hand, KY is under the sole care of (Mother). (Mother) expresses difficulty in child care and KY has frequent records of lateness for school in the new school year. In view of the foregoing, the present care arrangement for KY is considered less satisfactory in terms of his unstable schooling.

37. Concerning the care plans proposed by the parents, both (Mother) and (Father) state that if they are granted the acre and control of the two children, they plan to provide full-time care for them. Taking into consideration both parents’ proposed plans to be non-working full-time parents as well as their harmonious relationship with the two children, it is believed that (Mother) and (Father) are in equal position to be available for the children and provide adequate physical care for them in future. Nevertheless, when considering (Mother) being a Mainlander who stays in Hong Kong under a two-way permit, her availability to provide stable daily care for the children in Hong Kong will much depend on whether she can be granted two-way permit on an ongoing basis after the divorce.

38. Both (Mother) and (Father)’s proposed child care plans can maintain the status quo for the two children in terms of schooling arrangement. KS and KY, being young children, are in need of a stable and secure living environment for their healthy growth and development. Considering the children have frequent changes of living environment in the past year, it will be better for them to settle down in a stable abode for a stable, regulated and healthy living as soon as possible. In view of such, (Father)’s plan to live with the two children at his present stable abode seems to be more desirable as its location is relatively close to the children’s existing schools which can facilitate their regular school attendance.

39. After divorce, both (Mother) and (Father) will become single parent taking care of two dependent children with one suffering from G6PD deficiency and speech problem. (Father) proposes to take care of the children with the assistance of the domestic maid whereas (Mother), having no family or other social support in Hong Kong, plans to take care of the children single-handedly. Hence, (Father)’s proposed child care plan is considered better than (Mother)’s plan in terms of the availability of other helping hand in providing intensive and adequate daily care for the children.”   

29.Ms Yuen then made her following recommendation:

“44. In view of the foregoing as well as considering the views of the parties concerned, the parent-child relationship, the parents’ capabilities and the proposed child care arrangement, (Father) seems to be in a better position to meet the children’s various development needs … would like to recommend that the custody of the children of the family … be granted to the Respondent father, with reasonable access to the Petitioner mother.”

30.It seems that even though the Father’s allegations of improper sexual conduct had not yet surfaced at that time, the Mother was unable to tip the balance in her favour with the Social Investigating Officer despite having de-facto care and control of the Son who was then just slightly over the age of 3 with certain known medical conditions. However, it also appears to me that the main concern that the Officer had over the Mother’s parenting ability at that time was the fact that she was a Mainlander staying in Hong Kong only on a 2-way permit which the Officer feared would impact on the stability of her child-care arrangement for the children, but which may no longer be all that relevant or material now, and in any event as noted above that report has by now become quite outdated and to certain extent superseded by the 2^nd report of Ms Tsang dated 17^th April 2014.   

2^nd Social Investigation Report

31.This 2^nd report was specifically called for to look into the Mother’s alleged conduct and activities on the internet and their impact on her parenting ability and on the children in particularly the Son. It was as noted above conducted and prepared by a different officer Ms Tsang after the first officer Ms Yuen had been posted elsewhere by the department.  

32.Before going straight into the report on the Mother’s alleged cybersex activities, Ms Tsang first updated the Son’s medical and schooling situations and reported what appears to me marked improvements as follows:

“7. KY was suffering from Glucose-6-phosphate dehyrogenase (G6PD) deficiency. Besides, he was identified to have speech problem in late 2011 … Further assessment was conducted on 16.10.2012 by the Central Kowloon Child Assessment Centre. The assessment concluded that, at the age of 3 years and 4 months old, KY had weaker cognitive ability and speech development when compared with his counterpart, which was equivalent to 2 years 6 months and 2 years 3 months old respectively. Following the assessment, KY was waitlisted for integrated programme in kindergarten. Meanwhile he was given speech therapy until he was allocated integrated programme in the present nursery school in September 2013. Currently, KY received training at the school. Apart from schooling, he was arranged to have speech therapy, including group or individual sessions. From time to time, (Mother) was engaged to join the therapeutic sessions. KY was also arranged a clay-mould class on the Saturday morning to train his fine motor skills which was completed in March 2014. Starting from April 2014, he joined a pointing class on the Saturday afternoon.

8. According to the school record and the information supplemented by the school teacher, Ms Leung, KY was able to keep stable schooling. He was punctual at school. The mother was responsible and cooperative. She was ready to conduct home-based training and attend therapeutic sessions with KY. KY showed steady progress since September 2013 with his verbal comprehension and satisfactorily with his schoolmates. He was more active and happy when compared with the time when he first joined the programme.”  

33.Ms Tsang then proceeded to first set out the Father’s allegations of the Mother’s conduct related to her activities on the internet:

“11. (Father) said that, before the separation, he had installed a software programme in the computer at the matrimonial home, for capturing the stock market. Upon separation with (Mother), he had reviewed the records from around July 2009 to September 2011 and found out that (Mother) had indecent behaviours with some men acquainted on the internet. He elaborated that (Mother) indulged in online chatting with some male users. Their communication was indecent, always attached with pornographic images and videos. Worse still, (Mother) failed to protect KC and KY and exposed the children to the pornographic materials.

12. (Father) alleged that (Mother) even brought the children to witness her sex with other men whom she knew online. KC had told him that the mother had brought her to meet a man in China on 24.12.2009 and she had witnessed the mother and the man kissing and hugging. There were two incidents that the mother had brought KC and KY to Yuen Long KC had witnessed the mother having sex with her online friend. (Father) remarked that, in March 2012, after KC attended a school talk regarding child protection, had revealed to him that she had seen (Mother) and other men naked at home in Hung Hom for several times (Mother) and the men even slept on the same bed with the children.

13. (Father) believed that (Mother)’s problematic behaviour had imposed negative impact on the children. He observed that KC liked to associate with boys. He also attributed KY’s speech problem to the mother’s neglect because of her heavy involvement in online chatting. He commented that the mother showed no interest to take care of the children and supervise their homework. Even though he knew that (Mother) did not have computer at home now, he still believed that she had not stopped her indulgence in online chatting.”  

34.According to the report these allegations of the Father were in fact investigated by another officer a Ms Yeung of the Department so as to maintain impartiality, and Ms Tsang then set out the details of Ms Yeung’s investigation and conclusion as follows:

“14. Toward (Father)’s allegation against the mother’s deliberate exposing the children to pornography and sex scene which might involve child sexual abuse element, upon explanation and seeking consent from both parties, a separated social investigation for suspected child sexual abuse was conducted ... The case was also reported to the Child Abuse Investigation Unit (CAIU) of the police. Both Ms Yeung and the police had reviewed the video clips provided by (Father). Ms Yeung also interviewed both children. After reviewing the clips, the police did not regard that there was criminal element as there was no clear evidence that the mother had intentionally exposed any indecent images or videos to the children.

15. According to the investigation concluded by Ms Yeung, KC revealed that she had seen some videos and pictures showing naked women, women’s breasts, men showing their penis and men and women naked. However, KC said that (Mother) had worn clothes all the time during the online chatting. The mother did not know that she was viewing the computer screen as she saw those images at night when she and the brother were supposed to be in sound asleep. Sometimes she woke up at night because of thirsty. As her mother sat with her back facing her, she therefore had a glance on the screen incidentally yet the mother did not know that and she had never revealed it to the mother … KC recalled that (Mother) had brought her and KY to visit the home or company of a male chat-mate. She remembered that she and brother were placed in the living room to play while the mother and the man stayed in another place and she had no clue about what they were doing. She also remembered that the mother had brought some men to the home in Hung Hom for a few times but she did not know what they were doing. Whereas, KY could only recall that he had seen ABC songs in the computer. He did not give information about the mother bringing him to visit her friend or bring any friend to the home.“

16. After the investigation, Ms Yeung arrived at similar conclusion as the police that there was no clear evidence to show the mother had deliberately exposed the children to some pornographic images and videos or let them witness her sex with other men …

17. … It was concluded that the case was not an established child sexual abuse case or a high risk of child sexual abuse. Given that KY was about 2 years old when the incidents happened and he was not found to have memory or identified to have any irregularities, no follow up was suggested for KY. On the other hand, KC was suggested to have clinical psychologist’s assessment on the possible impact. Both (Father) and (Mother) had been informed of the investigation results and they did not show any objection. They also agreed with the recommended follow up.”   

35.Ms Tsang went on to report on the causes behind the Mother’s internet activities and their impact on the children:

“18. … (Mother) said that she started using the internet application, QQ, for online chatting in around 2009, at the time when she had tense relationship with (Father). She had no family or friends in Hong Kong and therefore she turned to the online friends for emotional support. She admitted that she had acquainted some men online and later they developed sexual relationship. She said it was due to her revenge against (Father) for his extra marital affair. (Mother) reiterated that she had never exposed any indecent images or videos to the children and never brought them to meet her online friends. The computer was later removed by (Father) and she had no computer installed at home. She now used mobile phone for internet connection but she seldom engaged in online chatting…

21. KC said that she felt disgusting when she recalled the pornographic images. Yet, she did not often think of the scenes and she was able to control herself. Besides, she reported to have no nightmare or sleeping disturbance and she also had normal appetite and affect. The feedback from the school tallied with her self-reporting that KC did not seem to have any irregularity in her social, emotional or behavioural aspects. Judging from her stable behaviour at home and at the school, the impact on KC was not of significant degree. Nevertheless, to safeguard her interest, she was recommended for a clinical psychological assessment. On the other hand, KY was unable to recall anything related to the mother’s online chatting or her bringing him to meet other men. In view of his small age and his weaker cognitive level when the incidents happened, he might have not formed memory on this issue. Hence, the emotional or psychological impact on KY was believed to be little, if any. Besides, KY maintained stable behaviour at home and at school and there was no irregularity identified. No follow up was required at the present stage.”   

36.Ms Tsang henceforth concluded that emotional or psychological impact on both children had been insignificant, and found that the Son had been under proper care of the Mother at paragraph 41:

“ … Judging from the feedback collected from the son’s nursery school, the social worker, the son was under proper care of the mother. In the present investigation, the mother was impressed to be responsible who was able to cooperate with the school to provide adequate training to the son to meet his special needs. The son showed good progress in his speech and cognitive development since his admission to integrated programme in the present nursery school…”

37.Nevertheless, Ms Tsang recommended that custody care and control of both children should be given to the Father for her following reasons:

“42. Other than the psychological impact arising from viewing of pornographic materials, the mother’s frequent use of internet and involvement in online chatting was another matter of concern. In the apst, she seemed to have spent much time on the internet which might hinder her from performing the mother’s role properly.

43. Owing to the communication problem between the parents, their lack of trust and their previous conflicts, there were many difficulties encountered in the course of their cooperation. In this connection, the joint custody might not be a good approach and might even create further conflicts which inevitably affecting the children’s welfare. Comparatively speaking, the father seemed to be more competent and resourceful which make him have a better position than the mother. For the children’s interest, I would recommend sole custody be granted to the father.

44. Regarding the care and control, the daughter was all along living with the father and she was under his good care. Her stable condition and her satisfactory growth and development indicated that she was under proper care from the father. Besides, KC was attached closely to the father and expressed clearly that she wished to live with him. Hence, I would consider that the status quo should be maintained that her continued care under her father was for her best interest. For the son’s care and control, although the son was found to have close relationship with the mother. Besides, in the present investigation, the mother was impressed to be responsible who provided adequate to the son and was cooperative in the son’s therapeutic treatment. Her continued care should be beneficial for the son’s improvement. Following this line of thinking, to maintain the status quo should be an appropriate option. However, when other factors came into consideration, I have reservation to make such recommendation. The sibling relationship was very close. KC was observed to be caring to KY that their interaction was positive and beneficial for KY’s development. For both children’s best interest, they should live together. During observation session, the son was observed to have positive tie with the father. The father possessed more resources which could facilitate his child care. After weighing the pros and cons, I would recommend the care and control of both children be granted to the father. To safeguard KY’s continuation of the training, it is also recommended that the father should undertake to continue the integrated programme for the son in the present nursery school and commit to perform the home training according to the advice of the nursery school.”  

38.Both Ms Yeung and Ms Tsang also attended court to give evidence at the trial during which Ms Yeung reaffirmed her conclusion that the Mother had not intentionally shown any indecent or obscene materials to the children, that they had not been so affected, and that she did not see any high risk of them being exposed to such materials in future.   

39.Similarly Ms Tsang expressed to be no longer concerned about the risk of the Mother exposing the Son to her cybersex activities, but rather over the affect that such activities may have on her parenting care for the Son, and that at the end other factors such as the Father’s better resources and sibling reunion have titled her recommendation on custody care and control of the Son towards the Father. However, notwithstanding Ms Tsang’s investigation, the Father believes that there is still a real risk of the Son being exposed to the Mother’s cybersex activities.

The Risk Factor

40.To assess whether there is still such a risk it is of course necessary to properly identify what exactly are these so-called cybersex activities of the Mother as alleged by the Father, which as noted above he first set out in his 1^st Affirmation of 19^th December 2012 (B/220 – 268) and further elaborated in his 3^rd Affirmation of 4^th December 2013 (B/459 – 485), and to which were exhibited more than 100 pages of screen captures of the Mother’s online chatting activities (B/269 – 317, 330 – 343, 486 – 512, 516 – 518).

41.In the relevant part of his said 1^st Affirmation subtitled “Abnormal sexual inclination with multiple sexual partners, adulterous activities and cybersex activities in the presence of the children”, the Father elaborated as follows:

“5. I must inform the Court that one of the main causes of our marriage being broken down is that the Petitioner has been indulged in communicating with her friends online and play cybersex using QQ (i.e. a popular instant online communication program) and webcam with other men.

6. During the currency of the marriage and the time of our cohabitation, the Daughter and the Son lived with the Petitioner in her bedroom while I lived in another bedroom in the matrimonial home at … Yet, the Petitioner often engaged in indecent and obscene communication and played cybersex using webcam with other men in her bedroom even in front of the Son and the Daughter.

7. There are now produced and shown to me marked exhibit … screen captures of the Petitioner’s online conversations, showing that the Petitioner played cybersex with other men even in front of my son (The private parts are obliterated from the screen captures. The complete versions are available for the Court’s consideration, if necessary). The above exhibits show only part of the Petitioner’s cybersex activities with her multiple sexual partners. Such photos and cybersex activities were so disgusting and would definitely affect adversely the psychological development of the children.

8. There is also produced and shown to me marked exhibit … screen captures of the Petitioner’s online conversations showing that the Petitioner admitted that she … had sexual relationship with her sex partner known as … and felt itchy in her private part after about two days. She then went to see a private doctor and found out that she was suffering from candidiasis …

9. The Petitioner even called the men who she played cybersex with “(Husband)” and the man called the Petitioner as “(Wife)”. And the man called the Son as their “son”. There are now produced and shown to me marked … screen captures of the Petitioner’s online conversation showing the indecent and obscene online conversation between the petitioner and her cybersex partners and how the petitioner dated her sex partners on the Internet to go out and have improper association…

11. The Petitioner often played computer till very late at night (sometimes as late as 5:00 a.m.). She simply ignored the children and continued to focus on the computer to play webcam and cybersex while the children were in her bedroom.

12. What’s worse, the daughter told me that the Petitioner had invited the men who she met online to come to the matrimonial home to have sex with her in her bedroom in the presence of the Son and Daughter. Apart from having sex with those men in the matrimonial home, the daughter also told me that the Petitioner took her and the Son to visit those men at their residential premises and then she had sex with those men in their presence. My Daughter told me that the Petitioner brought them to visit such men as frequently as once a week.

13. The Daughter complained to me that she felt very frightened when she saw her mother naked with other men on bed to have sex and heard the men and her mother moan in bed in the course of their sexual activities. She had nightmares from time to time recalling how the petitioner had sex with other men in front of her…

18. I verily believe that the Petitioner’s such uncivilized, unruly and adulterous behaviour to have sex with other men in front of the children has caused adverse impact to the children’s psychological condition, and such adverse effect may be far-reaching affecting their future psychological development. The Daughter even gave a handwritten note to me complaining that she did not want to see her mother (i.e. the Petitioner) due to the Petitioner’s being with other men naked and the daughter wanted to live and play with the Son…

23. For the above reasons, I verily believe that the petitioner has given a wrong message on sex to my children and my children might have been hurt psychologically as result of witnessing the courses of the petitioner having sex with multiple sexual partners at the matrimonial home or at the male partners’ residential premises…”   

42.Mr Surman for the Father submits that first it is troubling that despite ample evidence of her online activities as shown by the many exhibits referred to above, the Mother has not once admitted to her past wrongdoing, and instead being evasive about her such wrong conduct with all sorts of excuse to justify herself, which shows that she has clearly not accepted her problem, and therefore the risk of her putting her own gratifications ahead of the children’s welfare is high.

43.Given the fact that the Mother does not recognize that she has a problem, nor has she sought any professional help in relation to her sexual online activities, Mr Surman submits that the Father has good reason to be concerned about the Mother even at present is still conducting these online sexual chats which is a danger as the children would be exposed to indecent images from the internet or even witnessing their mother having indecent or sexual activities with other men as in the past, and that in any event the Mother’s continued indulgence in her online chatting would inevitably affect her care arrangement for the Son, because the Father believes that it is a case of addiction.

44.In support of the Father’s case Mr Surman relies on some of the Mother’s online activities listed in paragraph 35 of his closing submission to show that she is not putting the children’s welfare as her paramount consideration, to which the Mother has sought to provide various explanations including pure denial, saying that she only chatted when the children were not present despite clear evidence before the court to the contrary, and of which Mr Surman submits that simple questions however remained unanswered, such as why could she not simply turn off the computer when the children were present in the room, which are all signs of her inability to control herself, which has led to the Father’s argument that she must have become addicted.

45.Mr Surman further submits that while the Father did remove his desktop computer when he moved out of the former matrimonial home in 2012, there is no telling that the Mother may not have installed another computer in her home, and that in any event given her admission that she now uses her mobile phone to access the internet, she may well be still indulging in internet chatting and thereby continue to pose a risk to the children in particularly the Son.

46.Mr Leung on the other hand contends that the Mother does not accept that she had engaged in what the Father claims to be “cybersex” activities, but that as he had always looked down on her and had frequently scolded her in such brutal manner and with such nasty words such as “useless scumbag” and “damn beggar” that she had resorted to online chatting to seek relief from the pressure caused by the breakdown of their relationship and for emotional support as she had no friends or relatives in Hong Kong.

47.Mr Leung argues that it was since 2012 when the Mother started to attend church and the community centre and with help from social workers to attend various talks and seminars that she got to know more people and build up her own social network, and hence she no longer engages in online chatting with other men but instead only with her real friends and relatives in China. Mr Leung therefore submits that whatever risks there might have been from her previous online chatting, they are no longer valid and the Son will not be exposed to them during what is realistically a very brief period between now and next summer. 

48.From the contents of those 100 or so pages of screen captures as well as the agreed transcripts of relevant segments of video retrieved from the computer (G/751 – 832) produced by the Father which consist of not just conversations between the Mother and other men but also pictures and videos, I have no difficulty finding that not all but certainly many are indeed of sexual nature or even obscene or pornographic including men masturbating or showing their penis on the screen, which if just between consenting adults would not ordinarily call for any value or moral judgment by this court, but if they were displayed in the presence of the children, not to mention having sex in front of them as alleged by the Father, it would certainly be the court’s duty to investigate the matter fully, and if true to ensure that the children will not be exposed to such risk again.

49.However, firstly and to be fair to the Mother, most of the chatting of sexual nature appear to me were initiated by those men rather than by her, and similarly with the exception of a photo in which her breasts were shown of which she has given her explanation that I shall deal with later, all the indecent or obscene pictures or videos were displayed by those men rather than by the Mother, and to which she did on occasions either switch off the chat window or ask her chat mates to refrain from doing so as she had small children at home (B/120 – 121 §12, 13, 16).

50.Secondly, as explained by the Mother and evidenced by those exhibits and transcripts, most of the online chatting took place only late at night when the children were asleep, and it was only accidental when on rare occasions that the children or one of them woke up while the chatting was taking place, and it is the Mother’s evidence that when that happened she would immediately end the conversation and that there was no chance of the children being exposed to anything indecent or improper.

51.To this the Father countered by referring to several screen captures showing the Son sitting up on the bed or crying being ignored by the Mother who was still facing the computer. Given that these are still shots without any indication of the time span it is not possible to tell whether they show the true picture, and hence it is just conjectures on the part of the Father who was not present at the scene and based his argument entirely on the same materials.

52.As for the Mother’s explanation of the clip showing her breasts (B/488-490) that she was merely trying on a new bra and merely used the skype function of the computer as a mirror rather than showing her breasts online to other men as alleged by the Father, as the screen capture clearly shows that she was then using the function of “My Own Local Images” and appeared to have already logged out of the online chatting at that moment. While it may seem odd that she would use the skype for that purpose, it would seem even odder to me that the Father could produce just one such picture if she were indeed exhibiting her body online as part of her alleged daily cybersex activities, which if true certainly one would expect many more such pictures.

53.Above all, it is true that at the time of these online chatting of the Mother as evidenced by these exhibits and transcripts were from late 2009 to end of 2011, the Daughter was then between 4 and 6 years, while the Son was merely a few months old to 2 years, as submitted by Mr Leung for the Mother, certainly they could not have been able to read the conversations form the computer, let alone to understand their meaning, and even if they did on occasions when they woke up in the middle of the night and happen to have a glance of some indecent or obscene images, what effect would there be on them at their age that can be said to be harmful? As noted above, Ms Tsang in both her report and evidence believed that the Mother never intentionally exposed the children to such materials, and that any such effect on the Son would be insignificant.

54.There is of course the Father’s evidence of what he had been told by the Daughter of having seen the Mother having sex with other men either at her home or elsewhere and the handwritten note of the Daughter verifying the same (B/318), of which the Mother insists never happened and that the Daughter was being coerced or forced by the Father to make up the lies.

55.This issue as noted above had already been looked into by Ms Yeung during her investigation, and while the Daughter did mention to her that the Mother had brought her and the Son to meet other men either at their place or at her home, she had no idea of what her mother was doing with those men as she would be playing with her brother in another room, nor could she remember about writing any note to her father, and that Ms Yeung confirmed at the trial that the Daughter had never disclosed to her of having seen the Mother being naked with other men or behaving intimately with them in front of her.

56.However, in paragraph 19 of her report Ms Tsang did record that the Daughter had revealed the following information which may not have been disclosed to Ms Yeung:

“i. There were about 2 to 3 times that the mother had brought her and the brother to a man’s home and another 2 to 3 times to the man’s office. She said that there were two incidents that she had glanced through the bedroom door which was not properly shut. For the first time, she saw her mother and the man half-naked with the man wearing pants while her mother wearing upper clothes. The second time she saw her mother and the man lying on the bed, being covered by blanket.

ii. There were several times that the mother had brought different men to the home in Hung Hom at night when she was about P.1. The mother had brought the men to their bedroom and they all slept on the same bed with her and (the son). She and the brother were supposed to be in sound sleep. However, she sometimes woke up and saw her mother and the man naked on bed and kissing and hugging.”   

57.Ms Tsang then reported when she asked the Daughter why she had not disclosed all these to Ms Yeung, she replied that she was hungry at that time and just wanted to finish the conversation with Ms Yeung quickly with telling her those details. Ms Tsang went on to conclude that while the daughter did say she felt disgusting when recalled those episodes, she did not often think about them and judging from her stable behaviour both at school and at home, hence Ms Tsang believed that the impact on the Daughter was insignificant.

58.While it is the Mother’s case that the Father had fabricated all these allegations and coached the Daughter to tell these lies to Ms Tsang, which is not at all improbable given the somewhat conflicting versions given by the Daughter to Ms Yeung and Ms Tsang, but neither can one safely rule out her explanation for not giving the details to Ms Yeung, which would in my view be difficult to be coached to a small child like her. Above all, these details appear to me consistent with some of the contents of the Mother’s online chatting with those men including making dates to meet up with each other for sexual activities.  

59.In addition the Father also relies on two incidents to which injuries were caused to the Son to demonstrate the kind of risk that the Son will be exposed to while under the care of the Mother if she is indeed still indulging in such cybersex activities.

60.The 1^st incident was referred to in paragraph 24 of his said affirmation (B/227) and occurred in August 2012 when he discovered scalding scars on the Son’s chest and abdomen and was told by the Son he was injured by hot soup at home when there was a man visiting his mother at their home, and the Father believes that the accident was caused by the Mother’s neglect of the Son while entertaining the man.   

61.The Mother does not dispute the scalding but insists that it was just an accident when her mother spilled some hot milk on the Son while she was out buying grocery and not as alleged that she was too busy entertaining some man. It is of course difficult if not impossible to determine what actually happened some 4 years later today, but it is true that the Father is relying solely on the words of his Son then 3 years old, and since there is no evidence to suggest that it was anything other than an accident, I am unable to see how he can connect it to the Mother’s alleged sexual activities, even assuming there was indeed a man present as allegedly told by the Son.

62.The 2^nd incident was more recent but appeared much more serious according to the Father when he alleged in his 4^th Affirmation of 31^st July 2014 (B/619a – 619g) as follows:

“4. During my access to the Son on or about 6th July 2014, the Son told me that about a year ago his mother’s boyfriend whom jhe called uncle (“Mr. Man”) together with Mr. Man’s very young baby boy whom the Son referred to as “my little brother” with the name Man Ka Him, went to the petitioner’s residence … At that time, the Petitioner was also at her residence. Thus, 4 people were at the premises. The Son took away the toy of the baby boy when he was playing with the baby boy. The Petitioner then slapped the Son’s face for several times and Mr. Man used a wooden rod to hit his head severely in the presence of the Petitioner causing severe bleeding at his head. The Son lost consciousness for a period of time. He regained consciousness some time afterwards.

5. Although the Son sustained such serious injury in his head, the Petitioner or the Mr. Man did not take the Son to hospital to receive medical treatment. A long scar of approximately 2-3 cm is now left on the head of the Son…”    

63.The Father then reported the matter to the police as a child abuse case and the Son was then admitted to hospital for examination, and when the Mother later explained that the injury was instead caused when the Son fell and hit his head while playing in the park, he believes that she was merely trying to cover up her fault, and that even if it was an accident, it shows that she had frequently failed to provide the Son with proper care and supervision.

64.Mr Surman submits that the Mother again tried to underplay the seriousness of this incident, which he argues is apparent from a 3 cm scar that can still be seen one year later, that her explanation is remarkably similar to her explanation given in relation to the 1^st incident as another incident in a playground which is simply unbelievable, and which even if true shows that she clearly did not act in the Son’s best interest in casually treating his wound with just tissue papers and some gel in a public toilet, and later failed to inform the Father accordingly. 

65.Whatever the truth in these allegations, even if not fabricated by the Father, they were essentially based on just words from a small child about some incidents which had occurred sometimes ago, and given the Son’s various conditions, it would be difficult if not impossible to determine whether they did happen as alleged by the Father, which seems to be the case with the police as they were unable to find any evidence to substantiate his complaints.

66.At any rate the pertinent question must be whether the Son will be at any risk for the next 8 months or so while under his mother’s care given her past online activities, to which of course one must first ask whether she is still indulging in such activities. As the Father believes that she has been so addicted that in the absence of any professional help or at least counselling, it is unlikely that she would be able to kick the habit so easily by simply joining some communal activities.

67.There is no denying in our society today that getting online has become a daily ritual to most people whether for work, studies, leisure or searching for information, sometimes even for hours, but to call it an addiction on the part of the Mother and in her situation would in my view be too strong a word in the absence of any evidence from an expert such as psychologist or psychiatrist, and that in any event it certainly should not be mentioned in the same breath as, for instance, addiction to drugs or alcohol in terms of the effects and harm that it may cause. At any rate, as submitted by Mr Leung, all the materials produced by the Father recorded just over 200 hours of the Mother’s online activities over 2 years which averaged out to just half an hour per day, and hence to call that an addiction seems to me stretching too far the usual meaning of that word.   

68.Much has also been made by the Father of the Mother having another computer at home, of which the Mother has explained was borrowed from a friend only for viewing those videos of her online activities produced by the Father for preparation for this trial and that she cannot go online with it due to his cancellation of the online service. I accept that may well be the situation. 

69.Above all, Mr Leung submits that the Mother’s case that she has indeed ceased her online chatting can be best proven by the extensive inspection and examination of her mobile phone conducted by the Father’s legal team during the trial when she was asked without any prior warning to produce it in court, to which she readily complied and the examination did not reveal any chatting with other men or contents or photos of any sexual or indecent nature or similar to those seen before.

70.Having seen and heard the Mother for days in evidence, I accept that she has by and large moved on from her days of online chatting, and that while it is always possible that she may be dating some man or having a relationship, as I have stated earlier that it is not for this court to be judgmental of her behaviour in her previous online activities as an adult, especially now that her relationship with her husband has ended, she is certainly entitled, as is the Father for that matter, to move on to form new relationship, but I do not for one moment doubt her love and care for her children or that she would do anything to deliberately expose them to any risk of being harm or affected by her own personal activities, and on the evidence before the court and the analysis discussed above, I do not agree with the Father that the Son will be at risk while under the Mother’s care between now and next summer. That of course does not necessary follow that it would be in his best interests to so remain under her care, as it is also the Father’s case to call into question of the Mother’s parenting ability, of which he argues as poor, and which he claims to be also expressed in both Social Investigation Reports.

Mother’s Parenting Ability

71.There is no dispute, as noted above, of the concerns expressed in the 1^st reports of the Son’s rather unsatisfactory school attendance and the Mother’s expressed difficulty in child care with the Son being frequently late for school, but I also note that it happened mainly when the Son first started his kindergarten in Central which was quite far away from his home in Hung Hom, and that it was around the time when the parties’ marriage was unravelling and soon to be followed by the Father moving out of the matrimonial home with the Daughter for good.

72.There were also occasions during that period, as explained in her 1^st Affirmation (A/5) that the Mother had had to return to China for her visa application, while the Son had also spent time in and out of hospital due to his medical condition. All these of course cannot entirely excuse the Mother of her unsatisfactory performance with the Son’s school attendances, but rather as a explanation which may be understandable under the circumstances, and that the report also revealed that the Son’s school attendance did improve in the 2^nd term, and after the Mother had changed his school to the current one in Ma Tau Chung Nursery School in Kowloon City in September 2013 which is much closer to his home, it has since ceased to be an issue.

73.As for the 2^nd report, again while it is true that Ms Tsang did comment that the Mother “seemed to have spent much time on the internet which might hinder her from performing the mother’s role properly”, which was obviously based on her past online activities before 2011, but she also found the Mother to have since provided proper care for the Son and said this about his school performance in the report:

“8. According to the school record and the information supplemented by the school teacher … KY was able to keep stable schooling. He was punctual at school. The mother was responsible and cooperative. She was ready to conduct home-based training and attend therapeutic sessions with KY. KY showed steady progress since September 2013 with his verbal comprehension and expression improved a lot. He now adjusted well at the school and related satisfactorily with his schoolmates. He was more active and happy when compared with the time when he joined the programme.”

74.As noted above, Ms Tsang concluded in her report that the Mother’s continued care should be beneficial for the Son’s improvement, but decided for other reasons mainly sibling reunion that the Son’s care and control should be granted to the Father rather than any issue over the Mother’s parenting ability. In fact, Mr Leung submits that the Mother is much better trained and equipped to meet the Son’s special needs which is all the more reasons for her to be able to continue to do so until next summer when the various training for the son should be completed.

Son’s Special Needs

75.It is relevant to first note that there is no dispute between the parties that the Son is to complete his kindergarten at his present school in Hung Hom until next summer regardless of the court’s determination of the issue of his care arrangement between now and then, and hence during that brief period that the location of his home relative to his school and the daily travelling time for him to go to that school and back will naturally be a factor to be taken into account given the clearly significant difference in travelling time between the homes of the parties. The Mother’s case is that this factor will become even more significant when taking into consideration of the Son’s needs and his daily trainings.

76.These trainings are according to the Mother not for the Son’s G6PD deficiency which essentially requires her to ensure a safe environment for him and that he would not be exposed to certain chemicals, foodstuff or drugs, but rather for his developmental problems including his speech and communication which were outlined in his 2 development assessments conducted respectively in November 2011 and April 2012 (A/112 – 113) which found him to be underdeveloped by about 1 year behind other children at the same age in those areas.

77.As a result the Mother has since enrolled him in various programmes run by occupational therapists for therapies and trainings on his speech, his muscles and joint movements in which she would also participate to learn and to assist so that she can also carry out those trainings with him after school in the park as well as at home of which she has been told are essential (A/114 – 115), as she explained in her 2^nd Affirmation (A/132 – 133):

“50. Regarding the Son’s developmental problem, I have been the sole parent dealing with it … I have helped the Son engage in professional developmental therapy. The comprehensive scheme involves sessions with different professionals, including psychologists, speech therapists and occupational therapists. I am also doing daily training with the Son at home. Considering that the Respondent has a number of landed properties that he has to take care of, I am doubtful whether he can have sufficient time to bring the Son to attend the therapy sessions and do the daily training with him.

51. I understand that parental guidance plays an important part in children’s growth, especially in the Son’s case. Therefore, I have participated in various seminars on children’s development and I was given professional advice on how to help the Son on a daily basis. There is now produced and shown to me exhibit marked … copy extract of the Son’s “(training record)” together with a notice and application form relating to seminars about helping children with developmental problem. As shown in the “(training record)”, I have been recording the particulars of the training exercises that I conducted with the Son at home.

52. I have been informed by the Son’s therapist and teachers that the Son has improved in his ability to learn. There is now produced … copy of a “(development assessment report)” dated 30 October 2013. The assessor has given various positive comments about the cognitive, language, physical and emotional and social development of the Son. I am delighted to see that, after about a year of hard work by me together with the Son, the Son is now catching up in his development and having a happier life. Nonetheless, there are also some aspects that can be improved, for example, the Son’s speech ability. I feel very positive that, under my care, the Son can do even better in the near future. In the circumstances, it is undesirable for the Son to change his living and study habit and environment at this juncture.”

78.That development assessment report (A/218 - 219) indeed revealed general improvement in the Son’s developments in those areas referred to by the Mother, and concluded with suggestions that he needs to do better with his pronunciation and self-confidence and that his parents can help by providing demonstrations and encouragements.

79.As a result of which, and as according to the Mother that the therapists have found that the Son’s muscles were not strong enough thereby affecting the movement of his limbs and fingers, she would therefore bring the Son to the park nearby for further training of his muscles such as running and climbing for about an hour everyday after school before bringing him home by bus which takes only 10 minutes, which means they would be home by 6 pm for dinner and thereafter for homework and further home trainings.

80.According to the Mother and the Son’s said training records (A/191 – 219), the trainings can be categorized in 3 areas:

(a)  psychological training/classes for assessing the Son’s condition and for training the parents for which the Mother claims to have attended more than 20 sessions run by clinical psychologists;

(b)  occupational therapy run by occupational therapists for the Son at school which do not normally involve the parents;

(c)  physical physiotherapy run by physiotherapists for the Son at school which do not normally involve the parents;

(d)  speech therapy run by speech therapists at school which involve the participation of parents and which the Mother would attend that normally lasts from ½ hour to 1 hour on Friday mornings during which she would learn how to provide proper training for the Son at home.   

81.Henceforth and with this training schedule, Mr Leung submits for the Mother that if the Son is to go live with the Father in Sheung Wan now instead of until next summer when he will have completed both his kindergarten and trainings, the Father would not have the knowhow or experience to continue with these trainings for the Son as he has never attended any such courses or in fact talked to any of the therapists, nor would he have sufficient time even if he were able to do so given the long daily journey, which according to the Mother would take at least 1 ½ hours for a single bus journey, either way to and from the school in Hung Hom.

82.The Father however insists that the bus journey would take no more than an hour one way which he has actually taken himself on a weekday morning to school and then back, that he can make good use of that journey carrying out some of the exercises with the Son on the bus, and that in any event he is convinced that the Mother has grossly exaggerated the difficulty or complexity of those trainings and the importance of her role in them, that he should have no difficulty continuing with them for the Son if he is to live with him now, and that the Daughter and his domestic helper can also assist.

83.Mr Surman further submits that some of the so called “home trainings” involve very simple matters such as counting numbers and clapping, and that even one of the social workers Ms Tsang commented in her evidence that it does not require much experience in carrying out such trainings, that in any event the Father has taken active steps to further equip himself by enrolling and completing a speech therapy course in July 2014 for which he has been issued a certificate (“Exhibit R-1”), and that the Mother has simply twisted the Son’s educational development to suit her agenda.

84.While some of these trainings do appear simple as counting and clapping as submitted by Mr Surman, and certainly would not post much difficulties to any adult, but that would be like saying the same about the kind of teaching programmes for toddlers in most kindergartens, and it is certainly not true that any adult can be a kindergarten teacher, or at least a good one which requires much more than just the basic education background but more importantly a great deal of patience, enthusiasm, creativity and experience dealing with small children, and it is exactly with some of these qualities that the Father appears to me lacking or falling short when compared with the Mother.

85.Firstly, there is no denying that the Father left in early 2012 before the Son started these trainings and it is the Mother who has all along been solely responsible for providing them to the Son both in and out of home as well as all the meetings/sessions with various teachers or therapists without any involvement of the Father, and while he may have been trying to catch up by making himself more involved, there is no question that the Mother has had a huge head start with her experience not only in providing the trainings to the Son but also for herself as well as establishing some useful connection and/or  relationship with the teachers and therapists who have advised that the Son’s status quo as regard his trainings should be maintained until completion of his kindergarten.

86.Secondly and perhaps even more significant, having seen and heard the Father in evidence, I am not impressed that he would be patient or even diligent in providing these trainings for the Son as he never accepts that there is any problem with his development, and that he has clearly played down the Son’s slow speech problem as something simply caused by what he believes to be the Mother’s failure to talk to the Son while busying herself with her online activities, and that somehow all the problems would just go away once the Son is under his care.

87.This over-simplistic view of the Father was amply evidenced in court when he responded to Mr Leung’s questions on how he proposed to provide those trainings for the Son with such condescension that he remarked that even his Indonesian helper who cannot read Chinese or the 8 year old Daughter could manage without any problem. Given this attitude, it is not surprising that the Mother is concerned or doubtful that these trainings would continue as before if the Son is to live with the Father now before the completion of their full course. I agree she does have good reasons to be so concerned.

88.Above all, as it is the Father’s case that the Mother has twisted the Son’s educational development to suit her own agenda, one must therefore ask what agenda? She has clearly and unequivocally stated her position at the start of the trial that she would no longer dispute that custody care and control of the Daughter be to the Father, and that the care and control of the Son to the Father as well upon his completion of his kindergarten and trainings by summer of 2015, so what agenda does she have by insisting that the Son should complete both objectives first other than her genuine concern for his welfare? I am unable to think of anything else. If there were indeed any suggestion that she may be using the Son as some bargaining chip for some ulterior motive or to get something from the Father, I have not seen nor heard any from the Father or any evidence remotely suggesting the same.  

89.Regardness the truth in the Father’s belief to be the cause of the Son’s conditions, and it is just his own opinion unsupported by any verification or documentary evidence, it is clear that all other persons involved including school teachers, therapists and the 2 Social Work Officers Ms Yuen and Ms Tsang agreed that it is important and necessary for the Son to receive these trainings and that as a result he has made good strides over the past 2 years. It is equally clear to me that the Mother is in a much better position to provide such trainings than the Father in terms of experience, patience and conviction. However, it is the Father’s submission that it would be in the Son’s best interests to be living together with the Daughter now rather than until next summer.

Sibling Unity

90.Mr Surman submits that it is without a doubt that the siblings have a very close relationship, as confirmed by both Social Work Officers in their reports and with recommendation that they should live together so that not only will they be able to maintain good companionship for each other but also according to the Father that the Daughter can take up a role in the educational development of the Son including assisting him with homework and other daily activities.

91.While not disputing the benefits of sibling unity in this case, Mr Leung for the Mother submits that it can be achieved soon in something like 8 months in any event and thereafter the siblings will have many more years to be together, and I agree with him that whatever benefits that may have by bringing the siblings together earlier over such a relatively short period would be far outweighed by the likely harm or adverse effects so caused by the consequential disruption to the care and trainings which the son is currently receiving from the Mother with so much success and consistency.

Other Factors

92.The remaining 2 relevant factors which both Social Investigating Reports have relied on in arriving at their recommendations of giving care and control of the Son to the Father, namely the Mother’s uncertain status in Hong Kong and the Father’s better resources can in my view be dealt with much more straight forward, as the former no longer seems to be a real issue between the parties, and that at any rate should the Mother be required to travel to China for whatever purpose during the next 8 months, she can always as before either bring the Son along if it would not interfere with his schooling, or seek the Father’s assistance by placing the Son with him during her absence.

93.As for what is said to be the Father’s better resources, the reports clearly meant the assistance of his domestic helper and/or the Daughter, which would certainly be an advantage to the Father in terms of providing care for the Son, but they must necessarily be of much lesser role in particularly with the Daughter having her own daily schooling and activities to pursue, and that it is by no means the case with the Mother that she is lacking in any way in this area. In fact as already noted Ms Tsang has found her to have provided good and proper care for the Son all by herself.

Conclusion

94.Mr Surman concluded his closing submission by asking that since the parties are agreed that care and control of the Son is to be vested with the Father, why wait until next summer, and why not now as it is a well established proposition that small children need time to adjust to changes and hence the sooner the Son can go to him the better for him to be able to adjust to his new life and to prepare for his new school and primary education.

95.In most other cases I would certainly and totally agree with Mr Surman’s submission, but in this case where a child like the Son with certain medical conditions and development problems, and as elaborated in my discussion above, I am convinced that the above proposition has been displaced or outweighed by the fact that these special needs of his will be better met by the Mother until his completion of the kindergarten and trainings. Given that he is in fact already quite familiar with the Father’s home due to his weekly access, I believe that he should be able to cope with any adjustment problem that he may have by going to the Father not later than end of July 2015 and well before his primary school starts.

96.In the premises and for the reasons referred to above, I have decided not to accept the recommendations of the 2 Social Investigation Reports on the care and control of the Son in that I believe that his best interests will be served by remaining in the care of the Mother until end of July 2015 when he shall go live with the Father and to be under his care and control, and that until then the Father shall continue to have his weekend access as before.

97.Whereupon and subject to the Son’s school schedule in his primary school, the Mother shall have staying access to him preferably on Fridays after school until Saturday evening, and also to have half share of his major school holidays.

98.Given the Son’s said conditions and close bonding with his mother and under her primary care since his birth, I believe it will also be in his best interests that the Mother shall continue to play an important role in his life, and to that end a joint custody order will in my view certainly be beneficial, which is another decision of mine that differs from the reports. I am of course aware of the current strained and difficult relationship between the parties, but on this I have looked to what Hartmann JA (as he then was) said in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at 202 for guidance about the proper approach that the court should adopt in such circumstances:

“Joint custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdiction, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parties will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of cooperation is in the best interests of the child.

56. In determining the issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to cooperate with each concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration. As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at cooperation will not protect the interests of the child but only leave the child more vulnerable.”  

99.However strained or difficult the relationship of the parties may have been in these proceedings, the facts that they have been able to compromise on some other issues over their children, that many of their issues indeed arose out of their genuine concern for their children rather than out of spites or other motives, and that there have been no major issues on access to either children over the past 2 years of the litigations have all convinced me that there is a realistic prospect that they will be able to cooperate with each other in future making rational decisions over the upbringing of their children. Accordingly I order that they shall have joint custody not just of the Son but also the Daughter.

100.There remain the questions of whether the Mother should have staying access to the Daughter as well, and that whether the Father’s domestic helper should be present during the Mother’s access to either children. My short answer is yes to both but there should be flexibility to the former subject to the Daughter’s schooling and/or other activities, and for the latter only upon the Father’s request and for the purpose of assisting the Mother for a brief period until the Son shall have settled down in the Father’s care.  

101.My orders are therefore as follows:

(a)  the Petitioner Mother and Respondent Father shall have joint custody of the elder child of the family KC with care and control to the Respondent and such reasonable access including staying access to the Petitioner as may be agreed between the parties;

(b)  the Petitioner and Respondent shall have joint custody of the younger child of the family KY with care and control to the Petitioner until end of July 2015 when his care and control shall be vested in the Respondent with reasonable access including weekly staying access and half of his major school holidays to the Petitioner;

(c)  The Petitioner’s access to both children shall upon the request of the Respondent be accompanied by his domestic helper until such time as referred to above;

(d)  There be no order as to costs including costs reserved save that the Petitioner’s own costs to be taxed on Legal Aid Regulations. This is an order nisi to be made absolute at the expiration of 14 days.  

102.Lastly I wish to express my gratitude to the Social Work Officers involved and to both Mr Leung and Mr Surman for their valuable assistance rendered to this court throughout the trial and for their sensible restrains in the use of many of the obviously very sensitive materials in court.  

Mr. Adrian Leung instructed by Messrs. Liu, Chan & Lam for the Petitioner.

Mr Giles Surman with Mr Samuel Yip instructed by Messrs. W.K. To for the Respondent.