W, JS v. M, YMA (formerly known as WM, YMA also known as M,YMA)

FCMC 8870/2022

[2026] HKFC 111

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 8870 OF 2022

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J U D G M E N T
(Variation of custody, care and control and access)

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Introduction

1.  The petitioner (“Father”) and the respondent (“Mother”) were married on 24 January 2016. They had a son, J, now aged 8 years old. The Father, aged 44, is a teacher. The Mother, also aged 44, is a solicitor. The Father filed petition for divorce on the ground of mild unreasonable behaviour on 6 October 2021 under case number FCMC 10163/2021. On 20 September 2022, the Father filed a new petition (i.e. the present proceedings) on the ground of one year by consent.

2.  On 23 March 2022, by consent of the parties, HHJ KK Pang granted joint custody and shared care and control of J to the parties.

3.  On 19 August 2022, the Mother filed a summons to vary the Consent Order dated 23 March 2022.

4.  On 3 February 2023, HHJ Pang granted a non-molestation order against the Mother which was further varied on 6 February 2023 and was continued on 13 July 2023 (“Non-molestation Order”).

5.  The financial matters were settled by consent on 18 September 2023.

6.  On 11 October 2023, again by consent of the parties, DDJ J. Chow ordered that both parents have joint custody and shared care and control of J. Under the said order, J shall be in the care and control of the Father from Saturday 8:30 pm until the following Wednesday before school, and J shall be in the care and control of the Mother from Wednesday after school until Saturday 8:30 pm.

7.  Decree absolute was granted on 1 November 2023.

8.  Unfortunately, there has been intractable conflict between the parties, both as to major and minor issues. Because of the ongoing conflict, parties took out cross-applications to vary custody, care and control and access arrangement.

9.  On 15 April 2026, the Father took out ex-parte application for an injunction against the Mother. On 17 April 2026, I granted an interim injunction restraining the Mother from entering or accessing within 200 meters of J’s school.

10.  On the first day of the trial, the Mother withdrawn her summonses filed on 2 January 2025 and 8 April 2026 regarding her applications for variation of custody, care and control and access arrangement of J and application for withdrawal of temporary child care order made on 4 February 2026.

11.  Further, by consent of the parties, sole care and control of J was granted to the Husband on 9 June 2026.

The Social Investigation Reports

12.  Five social investigation reports (“SIRs”) have been prepared for this case.

13.  According to the SIRs dated 3 March 2022, 15 December 2022 and 24 July 2023, the social work officer recommended parties to have joint custody and shared care and control of J.

14.  According to the SIR dated 21 August 2025, the social work officer acknowledged that cooperation and communication between the parties was unsatisfactory. It is hoped that the parties could gradually rebuild trust through the intervention of co-parenting service, otherwise there would come a time that cooperation becomes so difficult that both parties or either party would micromanage every aspect and every minute of J’s life and criticize each other.

15.  The case was later taken over by Miss Yeung. Miss Yeung gave evidence at the trial.

16.  According to Miss Yeung’s report dated 26 May 2026, she was of the view that as custody governed a limited area of exchange between the parents, and joint custody, in principle served the best interests of J. Miss Yeung stated that since there were no significant disputes arising in key areas such as J’s education, medical care and religious upbringing, hence there should be an optimistic possibility for joint custody in this case.

17.  As for access, Miss Yeung proposed that there should be supervised access between the Mother and J.

The law

18.  The general principles governing the custody or upbringing of a child have been set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says 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 best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)  the views 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;

19.  In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. The checklist states that the following matters should be taken into account by the court when determining matters of this nature:

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

    (b) the child’s physical, emotional and educational needs;

    (c) the nature of the relationship of the child with each of the child’s parents and with other persons;

    (d) the likely effect on the child of any change in the child’s circumstances;

    (e) the child’s age, maturity, sex, social and cultural background and any other characteristics which the court considers relevant;

    (f) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (g) any harm which the child has suffered or is at risk of suffering;

    (h) any family violence involving the child or a member of the child’s family;

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

    (j) (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (k) the range of powers available to the court under this Ordinance in the proceedings in question; and

    (l) any other fact or circumstance that the court thinks is relevant.

20.  The Court of Appeal in ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644 at [25] stated that it is impossible to give an exhaustive list in considering matters relating to the welfare of child. The relevant factors set out in the Children’s Proceedings (Parental Responsibility) Bill provide a structured framework in which the appraisal is to be made holistically. The court’s decision is placing the welfare of the children as paramount consideration.

21.  In my view, the concept of “welfare” must be understood in the broadest sense with regard being given to factors such as the need for stability, the continuity of living arrangements, J’s developmental needs and his relationship with both parents.

22.  The difference between a sole custody order and a joint custody order was explained by the Court of Appeal in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at § §26-57.

23.  A joint custody order enables parents jointly participate in the decision-making process over the major aspects of a child’s life and in general considered to be in the best interests of child. See: PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191.

24.  In essence, even if only one parent is given custody, that parent is not given an absolute and independent authority to act without further reference to the non-custodial parent. The non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child's upbringing.

The issue

25.  The only issue which now need to be determined is whether there should be joint custody of J.

Whether there should be joint custody of J?

J’s View

26.  J told Miss Yeung that wished his parents to make important decisions jointly if possible. He further expressed that if this could not be achieved, he wished the Father to be responsible for such decisions independently.

The Mother’s Case

27.  The Mother was indeed the first one to file an application to vary the custody order. According to the Mother’s affirmation filed on 2 January 2025, the Mother alleged that when J was under the care of the Father, there were incidents which she considered to be child abuse.

28.  The Mother said she found that Miss Yeung was a responsible social work officer. The Mother accepted Miss Yeung’s recommendation reflected the recent interruption in contact and acknowledged the need to re-establish routine and stability in a structured and cautious manner. The Mother was prepared to comply fully with a staged and progressive access arrangement in consistent with Miss Yeung’s recommendation.

29.  The Mother said the supervised access sessions reflected J was consistently comfortable, joyful, and physically affectionate towards her.

30.  The Mother submitted that it would be in the best interest of J, if the parties were to have joint custody. The Mother said it was the Father who gave up co-parenting coordination service provided to them. The Mother was of the view that if parties continued to receive co-parenting coordination service, the parties should be able to jointly make decisions for the benefit of J.

31.  The Mother gave examples that parties used to be able to resolve incidents like J’s damaged a teacher’s watch, and participation in extra curriculum activities. The Mother was optimistic that she could effectively communicate with the Father to make joint decision for the benefit of J.

32.  The Mother said she acknowledged that past hostility between the parties was detrimental and affirmed to reduce conflict. The Mother submitted that her incarceration, served a powerful learning experience and marked a turning point in her approach to co-parenting.

The Father’s case

33.  The Father submitted that given the Mother’s conducts and character, it is unrealistic to expect that effective communication and cooperation can readily happen when issues arise and the continuation of joint custody is neither desirable nor feasible.

34.  The Father disagreed with Miss Yeung’s conclusion that there were no significant disputes between the parties regarding key areas such as J’s education, medical care and religious upbringing.

35.  The Father in particular referred to paragraph 31 of PD v KWW which states:

31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child's health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child's legal representative. (emphasizes added)

36.  The Father submitted that indeed there have been ongoing disputes up to multiple times each year concerning extracurricular activities. Further, the parties could not communicate effectively and rationally in making major decisions.

37.  The Father submitted that stability and consistency is not a “nice-to-have” for J; it is a clinical necessity.

38.  The Father explained that joint custody order was not workable as the relationship between the parties had totally broken down since the joint custody order was made. The Mother could not control her behaviour and made hurtful allegations of his parents.

39.  The Father contended that the Mother’s past conduct proved that she would resort to unilateral action to achieve her aims, even where this is contrary to J’s best interests and court orders. For example, the Mother constantly caused irreparable damage to the relationship and distress to J by breaching the Non-molestation Order.

40.  The Father said shortly after the Mother released from prison, she sent a barrage of emails and letters to the Father and his solicitors, including:

(1)  request for spousal maintenance when both parties’ claim for ancillary relief had been dismissed on 18 September 2023;

(2)  unfounded allegation that the Father was planning to switch school for J and threatened to contact the Father’s employer if he decided to switch school for J;

(3)  suddenly went to the Father’s solicitors office and offered video to be inspected by the Father’s solicitors;

(4)  sending application to apply for positions of Senior Commercial Associate and Legal Secretary with the Father’s solicitors; and

(5)  inviting the Father to file bankruptcy petition against her.

The Father was of the view that what the Mother did constituted harassment.

41.  Further, the Father said the Deputy Principal of J’s school sent an email to the Father saying that the school found that the Mother had showed up at the school on various occasions. On 13 April 2026 at 15:25, the Mother walked around the school and unexpectedly appeared and blew a kiss towards J, which caused J to appear shocked and visibly distressed.

42.  The Father submitted that a custody order is forward-looking; it is intended to provide a workable framework for resolving future disputes as and when they arise. The Mother’s past conduct speaks louder than her words and the Mother’s ongoing behaviour made it very difficult to have any effective communication with her and hence the prerequisites for functional cooperation required for joint custody is absent in the present case.

Decision

43.  The affirmations revealed that the parties' intense hostility has led to constant disputes over every aspect of J's care.

44.  I am mindful that the Court of Appeal in PD v KWW mentioned that joint custody should be the starting point because both parents ought to have direct involvement in their child’s life. The existence of acrimony between the parties should not in itself be a reason to deny joint custody to the parties. See: PD v KWW at [54].

45.  I accept that while it is ideal for J to be in an intact family where he is dearly loved by his parents. Yet, the reality is upon the breakdown of a marriage, this is simply no longer fully achievable.

46.  The court cannot ignore the realities, including the ongoing parental conflict, the parties’ emotional baggage and the dynamics of the various relationships, and impose in all situations a modified version of the perceived ideal, such as joint custody, can do more harm than good.

47.  Thus, in considering whether joint custody would be in the best interest of J, the court will have to consider factors such as the extent to which the parents are able to communicate and co-operate.

48.  The issues of custody, care and control of J were resolved by two consent orders in the past. While these orders were originally entered by consent, subsequent events demonstrated they were unfeasible.

49.  It is evident that parties have an acrimonious relationship and are distrustful of each other. In this case, parties are unable to see eye to eye in respect of almost all the aspects relating to the child’s life. The process of choosing primary school for J was at a pain which was evident by previous court orders.

50.  The parties were unable to agree on J’s religion, i.e. whether J should be baptised, unable to agree on the type and nature of medical care that J is entitled to, as the Mother had unilaterally arranged medical appointments and psychological and educational assessments for J without the Father’s consent and input, parties needed to engage in rounds of emails and correspondence between lawyers to try to resolve minor matters like handover of J. This is but to name a few of the differences between the parties. The parties’ relationship remained strain and there is absolutely no trust between the parties.

51.  The parties frequently clashed over minor issues, including the simple process of signing up for J’s parents' day luncheon activities. The fact that this matter was resolved outside of court only on the eve of the hearing underscores the parties’ ongoing inability to compromise without court intervention.

52.  J’s school was well aware of the constant arguments. Even when forms or notices were submitted through the e-class platform, the school would still call both parties every single time to verify their stance.

53.  There was non-stop litigation between the parties for the past five years, there was simply no room for parties to communicate effectively and rationally in making major decisions of J.

54.  While Miss Yeung recommended joint custody, in my view, such an arrangement is simply not feasible.

55.  To be fair to Miss Yeung, her involvement with the case only began in late 2025. She conceded that her SIR focused solely on immediate circumstances rather than the parties' historical interactions, even though she openly acknowledged being aware of their communication difficulties.

56.  According to Miss Yeung’s report, J’s school principal told Miss Yeung that the parties’ legal disputes have caused the school “considerable difficulty and frustration”. J’s school principal urged the parties to place J’s well-being first and that the school wished to avoid involvement in the parties’ legal proceedings.

57.  Based on the evidence before me, I find that the parties have a history of significant disputes. Furthermore, the Mother’s ongoing behaviour—specifically, sending a barrage of emails and letters to the Father and his solicitors in April and May 2026—is deeply concerning. Although the Mother maintains that her conduct does not constitute harassment, I view the matter differently.

58.  I must remind parties that their continued conflict serves only to harm J. It is entirely predictable that a young child will experience considerable stress when caught in the crossfire of ongoing parental disputes.

59.  I accept the Father’s submissions that maintaining joint custody would merely invite a recurrence of the very dysfunction this litigation seeks to resolve. The sole custody order sought by the Father is necessary to prevent a stalemate in major decision-making, thereby ensuring efficiency and serving the best interests of J.

60.  I am satisfied that, given J’s current developmental stage, his best interests dictate an award of sole custody, care, and control to a single parent. This will, at the very least, insulate J from conflict and afford him a stable, consistent environment during his formative years. The Father shall have sole custody of J.

61.  To prevent further conflict, and having regard to the parties' past disagreements over school communications, I clarify that only the Father shall possess the right to log in to J’s e-class system.

What kind of access arrangement should be made for the Mother?

62.  Miss Yeung proposed that there should be supervised access for up to two hours per week between the Mother and J at the initial stage, being supported by a social worker from a co-parenting support service, to assist the Mother in adjusting her parenting style fitting the needs and expectation of J.

63.  The arrangement and frequency of visits could be reviewed with particular regard to J’s wellbeing and evolving needs. The extent of supervision could be varied to adjustment of the parent-child interaction, the emotional acceptance on the side of J as well as mutual agreement between the parties.

64.  While both parties accept Miss Yeung’s core recommendations, the Mother seeks the inclusion of a definitive timetable to facilitate additional access with J.

65.  Miss Yeung explained that establishing a definitive timetable to increase the Mother’s access is currently impracticable, as time is required to assess J’s evolving needs and emotional readiness. She noted the inherent difficulty in prompting a child to discuss his parents under these circumstances and observed that numerous SIRs have already been ordered in this case.

66.  Five separate SIRs have been conducted over the last four years. Forcing J to repeatedly articulate his feelings regarding his parents' conflict is a deeply stressful experience, and further frequent investigations are detrimental to his well-being. In my judgment, J and the Mother need space and time to gradually cultivate a meaningful bond, supported by professional social work intervention via a co-parenting support service.

67.  In view of the current dynamic between the Mother and J, I adopt Miss Yeung’s reasons for her access recommendations, which I find to be both fair and balanced. To monitor developments, I direct that a progress report be submitted to the court in 12 months, specifically in June 2027.

Interim injunction granted on 17 April 2026

68.  Because the final orders provide for the Father to exercise sole custody, care, and control, alongside a regime of supervised access for the Mother, the interim injunction granted on 17 April 2026 serves no further purpose and will be discharged.

Conclusion

69.  For the reasons stated above, I ordered that:

(1)  Sole custody, care and control of J be granted to the Father;

(2)  General leave be granted to the Petitioner to take J out of the jurisdiction of Hong Kong from time to time;

(3)  The undertaking and consent forms filed by the parties for the uplift of removal restrictions under DDJ J. Chow’s order dated 11 October 2023 remains valid;

(4)  The Mother shall have supervised access with J as follows:

Up to two hours per week at the initial stage, being supported by a social worker from a co-parenting support service;

The access schedule may be adjusted over time to support J's ongoing well-being and evolving needs;

(5)  Only the Father shall have access and login details to J’s school e-class account;

(6)  The Father shall retain all J’s travel documents and vaccination records;

(7)  A progress report be called for in 12 months’ time, i.e. by June 2027;

(8)  Recitals I and J of the Order made by HHJ E. Liu on 18 September 2023 (“2023.09.18 Order”) be discharged retrospectively from 4 February 2026;

(9)  Paragraph 6 of the 2023.09.18 Order be varied to the effect that the Father be discharged from paying child maintenance to the Mother with effect from 4 February 2026 retrospectively;

(10)  Recital B of the Order made by Master J. Chow on 15 January 2024 be discharged retrospectively from 4 February 2026;

(11)  As the consent order dated 11 October 2023 has been completely superseded by these final orders, all associated undertakings regarding joint custody and shared care and control are no longer applicable; the parties are hereby discharged from those undertakings; and

(12)  Leave be granted to the Father to produce a copy of this Order to J’s school, KID First specialised co-parenting support centre, J’s psychologist, psychiatrist and/or therapist, and/or any education institutions that J attends or will attend, and/or any third parties on a need-to-know basis.

Costs

70.  Given that this is a child matter, I shall make the usual order that there be no order as to costs of the Father’s application, including all costs reserved.

71.  The Mother’s own costs be taxed in accordance with Legal Aid Regulations.

72.  While this judgment concludes the legal dispute, it must signify the beginning of a stable childhood for J. The parties are strongly urged to cooperate fully with the co-parenting support service social worker and to prioritize J’s emotional well-being over personal grievances.