KYW v. LMS

FCMC 11800 /2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11800 OF 2006

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J U D G M E N T

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Introduction

1. This is an application made by the Petitioner father (“the Father”) to vary a court order on the custody of the parties’ three children (“the Children”) made on 14 May 2007.  His application is opposed by the Respondent mother (“the Mother”). 

Background

2. The Father is now about 42 years of age and the Mother is 39. The parties got married in July 1994. K, the eldest daughter, is now 14 years old; N, the second daughter, is now 12 years old and the youngest son, C, is now 4 years old.

3. In July 2005, just 5 months’ time after C was born, the parties signed a deed of separation (“the Deed”).  In the Deed, it was agreed, inter alia, by the parties that the Children would be in the custody of the Mother during the period of separation and that the Father would not oppose to the Mother’s eventual application for custody of the Children if a Petition was to be filed.  There might be problem on the latter part of the term but that was the agreement of the parties at that time.  In any event, the Deed failed to bring peace to the family.  K was found to have emotional problem caused by the marital discord of parents.  The first serious incident took place in March 2006. It was a time when she was residing with the Father. At an outburst of her temper, K threw a flower-pot from height and it landed right in front of the car of the Father.  In his anger, the Father slapped K. The incident was referred to the authorities as a suspected child abuse case. After investigation, no action was taken against the Father.  K returned to the Mother and started to receive psychological counselling since.  In fact the Mother was also receiving counselling at that moment to help her through with her mood problem arising from the separation with the Father.

4. In September 2006, the Father filed a petition for divorce on the fact that the parties had lived apart for a continuous period of at least one year and the Mother consented to a decree to be granted.  In the prayer, the Father asked that the custody of the Children be granted to the Mother with reasonable access to him.  Two months after the filing of the petition, N commenced psychological counselling. 

5. On 29 March 2007, a Decree Nisi was granted on the pleaded facts.  On even date, Deputy Judge C.K. Chan made an order that the question of custody, maintenance and costs of the suit be adjourned to be heard in chambers.  On 14 May 2007, when parties returned to court for those adjourned matters, an order was made by consent to grant the custody of the Children to the Mother with reasonable access to the Father (“the Custody Order”).  Deputy Judge C.K. Chan had on the same day also made directions for hearings on ancillary relief matters. 

6. The Father on 28 December 2007 took out a summons asking that the Custody Order be varied.  He asked that the custody of the Children be granted to him.  This is the subject matter of the present hearing.  According to the Father, quite a few incidents took place since the Custody Order was made and these incidents led to his application for variation.  The Father said that on 15 November 2007, in the course of a heated argument between K and the Mother, K was beaten by the Mother and K was admitted to hospital on the next day.  She was discharged on 29 November 2007.  A multi-disciplinary case conference was convened and members came to the conclusion that K should return to the Mother.  On 1 December 2007, K went to stay with Madam Lam, her paternal aunt, who had been the carer of the Children since early 2005.  The Mother was charged eventually for maltreating and neglecting K.

7. About a week later, on 7 December 2007, the Mother broke the computer of N in the heat of an argument.  On 17 December 2007, N took a taxi to go to Madam Lam.  The Mother reported the incident to police and N was brought to police station.  On the following day, the Mother terminated the employment with Madam Lam.  On the same day, there was another incident between N and the Mother, as a result N was detained in Tuen Mun Juvenile Home between 19 and 21 December 2007.  She was brought to the Fanling Juvenile Court on 21 December.  After hearing the case, the Magistrate granted the interim care of control of N to Madam Lam pending decision on the present application of the Father.  The Father then rented a place in Ma On Shan in preparation for having K and N to live with him.  As mentioned he took out the summons for variation on 28 December 2007.

8. The parties appeared before me on 3 January 2008 for pre-trial directions on hearing the Father’s application to vary the Custody Order.  At the time of the hearing, both K and N no longer resided with the Mother.  The issue on the Father’s access on C was also raised. The Mother complained that the father’s access on C was disruptive to their daily routine as he seldom gave sufficient notice while the Father complained that the Mother was obstructive on his access to C.  At the conclusion of the hearing, apart from directions given on the application for variation, order was made to define the access on C by the Father after submissions were heard with the aid of affirmations of the parties.  An order (“the First Access Order”) was made to the effect that the Father would have :

(i)    day time access two times during the week;

(ii)  day time access on every alternate Saturday; 

(iii)    staying access on the other alternate Saturday until Sunday; and

(iv)    staying access during Lunar New Year and Easter holidays. 

In the mean time, social welfare report was called for to assist the court to determine the Father’s application on variation. 

9. On 1 February 2008, the Mother filed an application to vary the First Access Order.  Her main reason was that she and C had moved from Ma On Shan to Kennedy Road.  Day access during the week for two times as allowed in the First Access Order would be too much of a hassle for C who was only 3 years old.  The Mother’s Summons to vary the First Access Order was heard on 3 March 2008.  After hearing the parties, I varied the First Access Order to the effect that the 2 day-access during weekdays be cancelled and the location for C to be handed over between the parties also be changed; access over weekend remained intact (“the Second Access Order”).

10. The Father then on 6 March 2008 took out a summons asking for interim custody care and control of the K and N.  On 12 March 2008, interim custody of K and N was granted to the Father by consent.  On 27 May 2008 the Father took out another summons asking for interim custody of C be granted to him.  The Father also took out another summons on 5 June 2008 applying to vary the Second Access Order to further increase the staying access of C for C to stay with him on every weekend.  The Father’s application was heard on 20 June 2008.  I made an order thereafter that the Second Access Order be varied to allow a longer staying access every weekend to commence on Friday after school until Sunday evening to alternate with another over-night staying access on the other week to start from Friday after school to Saturday evening (“the Third Access Order”).

11. The present hearing was to determine the Father’s application to vary the Custody Order.  It was agreed between the parties that the Custody Order be varied to the extent that the Father be granted the custody of K and N with reasonable access to the Mother.  The only issue left behind is whether the custody of C be varied also.  

Position of the Father in this application   

12. The Father asked to vary the Custody Order to the effect that he be granted the custody of C because, according to him, the Mother was unable to take care of C physically and emotionally.  Reasons given by the Father are summarised below:

(a)  the Mother had a bad record with K and N when the Children were under her care and control;

(b) there was no genuine attempt made by the Mother to remedy the relationship with K and N;

(c)  the Mother had a history of obstructing C’s access by the Father and had failed to provide co-parenting with the Father;

(d) the Mother, by moving her residence 3 times within months, failed to provide a steady home environment for C;

(e)  she only spends very little time with C even though she is the custodial parent of C;

13. I shall deal with every allegation raised below.

The Mother has a bad record with K and N when the Children were under her care and control

14. In the incident with K on 15 November 2007, it is not disputed that K was beaten by the Mother.  At that time K was 12 years old.  Briefly, the incident happened when there was an argument between the Mother and K.  In the heat of the argument, the Mother beat and pushed K.  According to the medical report prepared by a Dr. Ho, some bruises were found on the limbs of K, mild tenderness over her left lower scapula and in her scalp near right occipital region with no visible bruises or hematoma.  The Mother was later charged with an offence under s.27(1) of Cap 212 particularised as that the Mother had neglected K likely to cause K unnecessary injury to her health.  The case was heard in the Fanling Magistracy.  After the prosecution was granted leave to amend the charge from ill-treating K to assaulting K, the Mother pleaded guilty and was convicted as the amended charge.  For sentence, she was put on probation for 12 months on 16 September 2008.

15. Ms Rattigan, in her final submission made on behalf of the Father said that “any parent capable of attacking their twelve year old child in this manner cannot be fit to have custody of that child or any other”.

16. Further, one month after the incident with K, there were three incidents with N in December 2007.  On 7 December 2007, there was an argument between N and the Mother over N’s playing games on the computer.  As a result, N’s computer was broken by the Mother.  On 17 December 2007, N went to Madam Lam’s place.  According to the Father, the Mother’s helper went there with her.  Knowing all these, the Mother nonetheless made a report to police and N was brought to the police station for investigation at 4 a.m.  N did not go to school on 18 December 2007 upon her release after a very hectic night.  In the evening of 19 December 2007, N was not allowed to see K to celebrate K’s birthday as planned.  N was further locked in her bedroom whilst the Mother went out.  Inside the flat, there were the maid and N’s maternal aunt.  In her rage, N caused damage to the flat by defacing the wall, breaking the ceramics, cutting the fabrics and the Mother’s handbag and her clothings.  The Mother made a report to police upon retuning home.  She did not bail N out for the night but gave consent to the arrangement that she be sent to a juvenile home.  She was kept there on 19 and 20 December 2007 until she was brought to the Fanling Juvenile Court for an application for a Care and Protection Order. The Father complained that the Mother had been so unmerciful in punishing N and that had caused N to spend her 11^th birthday in a juvenile home.  When the application for Care and Protection order was heard in Fanling Juvenile Court, the Magistrate ordered that interim care and control of N be granted to Madam Lam pending determination on the Father’s application for variation of the Custody Order. 

17. In her final submission, Ms Rattigan took the incident as a clear indication that the Mother was unable to take care of the emotional need of the daughters.  Both daughters were receiving counselling but the Mother seldom took part in the programme to render assistance to the daughters.

18. The reply from the Mother to these complaints was that she had been wrong.  Although she disagreed with certain details of the incidents put to her, she admitted frankly that she had been wrong.  She said she learned that she was wrong from her probation officer Ms Hung.  Ms. Hung was assigned to her as her probation officer in September 2008 after her conviction for assaulting K.

19. About making a report to police on the incident N went to Madam Lam’s place, the Mother said that she was not informed by anyone about N’s going to Madam Lam’s place.  It was not the case that the maid went there with her.  N was moody after the incident of K.  She crossed the Mother in many ways.  She made unreasonable requests to the Mother. She called the Father for back-up when her request was not acceded to. That caused arguments and disputes between the parties and sometimes, Madam Lam was also involved.  N went out and stayed with the Father or Madam Lam for long period of time instead of going home after school.  Nobody would answer the Mother’s phone call when she tried to look for N.  N came home late in the evenings.  She played truant and failed to hand in homework.  In the particular incident that the Mother called the police, it was not the case that she had been informed of N being with Madam Lam or the maid was there with N.  The Mother said she had no idea where she was but felt that N, the Father and Madam Lam teamed up to go against her.  She felt helpless.  She reported to police but it was not the case that N was brought to police station at 4:00 a.m.  In fact, she was taken from the Madam Lam’s home to police station at about 10:00 p.m., but it was true that she stayed in the police station until 4:00 a.m.

20. About her refusal to bail N out pending hearing at the Juvenile Court after she was taken away by the police for damaging the flat, she said that she wanted N to know she was wrong.  The Mother also said that she did not make any report to police through out the whole of the incident of 19 December 2007.  N called the police alleging false imprisonment by the Mother when she knew she was not allowed to go to K’s birthday dinner.  Then she started damaging the flat.  The sister of the Mother called the police because N was cutting things with scissors and knives and they were afraid that she might go out of control.  She said she allowed the police to take N away because she wanted her to know she was wrong.  She wanted to take a strict approach with N when parenting her.  She thought N should not be given the choice of where to stay after she had maliciously damaged the flat and had been so disobedient to the Mother. But the Mother said, she now knew that she took the wrong approach with the daughters.

The Mother had no intention to remedy the relationship with K and N

21. Ms Rattigan commented that when the Mother said she was remorseful she was only paying lip service.  She had done nothing in support of what she said.  She did not allow K to go home with her since the incident in November 2007 despite of the recommendation made by the multi-disciplinary case conference.  She had refused to meet the headmaster of N who visited Hong Kong even though she said she would like to know more about N and her school in England. She did not initiate much access to the daughters since they moved back to stay with the Father.

22. About the relationship with K, the Mother admitted that she did not attend the multi-disciplinary case conference, she said that was her decision made upon legal advice.  As to why K was not returned to her as recommended by the multi-disciplinary case conference upon her discharge from the hospital, she said that first the then case social worker suggested to her that K should spend the weekdays at home but weekend with Madam Lam.  The Mother found this not acceptable.  Secondly, the Mother was worried that if there was another emotional outburst of K she might not be able to handle.  She felt that the risk of having conflict between them was still alive at that time.  She was still facing a criminal charge with K as the principle witness. In fact N would be a witness too.  She then followed the suggestion of the case social worker that K should stay with the Madam Lam for a period of time for the parties to cool off before K should return home. As to her relationship with K and N, she said she did try to see them, but she felt that she was rejected and with the criminal case pending, she did not try very hard afterwards. 

23. I would like to deal with one issue at this juncture and that is the credibility of the Mother in regard to her explanation on why K was not returned home after being discharged from hospital.  Having considered the final submission of Ms Rattigan, the Mother’s evidence in her 2^nd Affirmation at page 118-41, and her evidence under oath in court, I find no issue on the credibility of the Mother in this regard.  I find no inconsistency between the two versions given by the Mother as suggested by Ms Rattigan.  The evidence the Mother gave in court contained more details to make the picture more clear.  Her counter proposal for K to stay with her was not same as the proposal made to her by the case social worker.  She could not agree with K’s spending weekend at the home of Madam Lam as proposed by the case social worker.  

24. As to her refusing to meet with the headmaster of N when the latter visited Hong Kong, her saying was that she was ill and that she was only given very short notice.

The Mother fails to promote C’s access by the Father

25. Ms Rattigan also complained that the Mother had been obstructing C’s access by the Father and the siblings.  Without prior notice, she did not handover C to the Father On 29 January 2008 for day access as ordered by the Court.  On that day Mr Wong, the social welfare officer, also planned to meet the Father with C for the interaction between them to be observed.  On 31 January 2008, also the access time for the Father, Mr Wong wanted to carry out his observation on the relationship among the Children and the Father for the compilation of his report.  The Father’s access and the observation again had to be cancelled because the Mother failed to bring C to the meeting as scheduled without prior notice.  The Father was not able to see C since then for about a month.  

26. The Father, when in the witness box, said in tears that whenever he wanted to pick C up from school he would have to face with trouble.  There were times that the Mother asked the school not to allow him to take C from school, there were times that the Mother changed the time and venue for the pick-up, there was also one time that police had to be called due to the row made by the Mother making false allegation against him for assault.  The Mother had also denied his access to C for over a month in January 2008 despite of the First Access Order.  He said that she moved about and changed school for C without letting him know.  All these were done to deny his access. 

27. The Mother when questioned by her own lawyer and when cross-examined by the Father’s lawyer denied that she had been obstructive to the Father’s access to C despite of the fact that there was a court order on defined access made on 3 January 2008.  She gave an explanation to each incident named by Ms. Rattigan. 

28. For the allegation of her failing to go along with access on 29 January 2008, her saying was that C was sick that day and she had informed the Father about this.  When it was put to her that the Father was never informed of C being ill and access had to be cancelled; and therefore the Father and the social worker had been waiting in vain at the drop-off point of C’s school-bus.  The Mother said that she could not remember.  It was then put to her that she deliberately defaulted another appointment to be taken on 31 January 2008, her answer was that she could not remember. 

29. When asked why she did not allow access since end of January 2008, she said she made an application to the court on 1 February to vary the First Access Order.  She was of the view that the access under the First Access Order was very disruptive to their life and also there were unhappy incident between her on one side and the Father and Madam Lam on the other side.  She said that they came to her residence and they had heated argument and she had reported to the police twice.  She agreed that to cut off the access of C by the Father was not in the best interest of C, but too much trouble arose on each occasion of access, to the extent that she had asked the social worker for help but seemed to be in vain.  She did not want to have quarrel with the Father in front of C.  The First Access Order was varied on 3 March 2008 to cut the after-school access during the week.  She said she had no problem in complying with the Second Access Order. 

30. It was put to her that the problem did not cease to happen after the Second access Order as  she had said.  In fact there was an incident happened on 27 June 2008 after the Father had successfully got a Third Access Order on 20 June 2008 for weekly staying access.  At the incident, police had to be called and the Mother said that she was injured by the Father.

31. Ms Rattigan asked the Mother to clarify why she said she would reduce the Father’s access to C if custody of C were to remain with her.  She said it was because she wanted to bring C to church to attend Sunday school.  She would compensate the Father by extending the access hours to finish until later in the evening.  She denied that such suggestion was put forward only to reduce the access time for the Father. 

The Mother has failed to provide a steady home or environment for C

32. The Father complained that the Mother had moved 3 times within a short period and as a result C had to change school 4 times.  There were also allegations that the Mother had ignored the right of the Father for being consulted on C’s change of address and school. 

33. She agreed that she did not consult the Father for the change of the first two schools, but did consult him on the other occasions.  For example, she wanted C to study his kindergarten at St. Paul’s or Victoria, both were objected to by the Father saying that they were too far away from him.  For the earlier schools, C only attended their pre-kindergarten classes (play groups) only.  Some were meant to be temporary arrangement in any event.  Victoria is the only kindergarten C has attended so far and she has no intention to change to other school for C. 

34. The fact of their moving home was not disputed by the Mother.  The Mother gave an explanation on their moving from one place to another.  She said she moved to Kennedy Road in order to get C to be admitted by St. Paul’s.  C had passed some preliminary screening to be admitted by that school.  But the Father opposed to C attending St. Paul’s saying that it was too far away from him.  So the Mother moved back to Kowloon.  She was looking for a place to stay and because her mother was living at Tseung Kwan O, she gave it a try.  Later she found that she was not very happy with the schools there.  Shortly afterwards, her friend got a place for C at Victoria in West Kowloon, she then moved into the Arch which is not far away form the school.  There is no immediate plan to move or to change school for C for the time being. 

The Law

35. There is no dispute that under s.3(1)(a)(i) of the Guardianship of Minors Ordinance that in relation “to the custody and upbringing of a minor…. the court shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to

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

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

36. Gauging from authorities, there are factors the court should consider when determining the issue of custody.  In my judgment, the factors I should consider in the present case include the following:  

(i)     The age and sex of the child;

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

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

(iv)    Any family violence involving the child or a memberof the child’s family;

(v)    Whether the custodial parent would impose difficulties hindering access to the Child by the non-custodial parent;

(vi)    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;

(vii)   Sibling Unity;

(viii)  Recommendation of social welfare officer.

The age and sex of the child

37. C is a 4 year-old boy. 

The relationship of C with each of the parents and with other persons

38. According to Ms Tsui, the social welfare officer reported that,

(i)  C enjoyed good and intimate relationship with the parents and both parents also showed much love on him ;

(ii)    C enjoyed staying with the Father, K and A and Madam Lam and was fond of seeking fun with them during the weekend vacations when they were all available to be with him; 

(iii)  C also liked to be picked up by the Father at school and took a ride in his sport car;

(iv) C showed that he was feeling unhappy when leaving the Father’s home at the end of the access period, but the separation did not seem to have much impact on C after he returned to the Mother.  

Violence involving K and N

39. This is the heart of the Father’s complaint.  I have dealt with the evidence of the parties in paragraphs 14-20 above.  I would consider the same when I consider the whole of the evidence and circumstances that need to be considered.

The likely effect on C of any change in the child’s circumstances

40. C has always been staying with the Mother since the separation of the parties on 30 June 2005 if not earlier.  The Father said however that if custody of C was granted to him the change would be insignificant because he had been taking care of C with the assistance of Madam Lam all along. He had always been the one to pick C up from school. Although he had busy business schedule, he always attended to the needs of the Children. 

41. The Mother is worried as the Father is always busy with his business, he would be more occupied with his new family.  He has a new baby who is about 2 years old now C with his fiancé. She doubts if C could receive adequate attention from the Father and his fiancé who had to take care of her own son.

42. At the hearing the Father indicated clearly to the court that he would be the one who made the decision for the Children even though his fiancé is about to move to Hong Kong with the new baby.  The Father added that he would still be the main carer for the Children with the assistance of Madam Lam.

The difficulty of the Father to have access on C

43.   Again this is one of the key issues taken by the Father. Paragraphs 25-31 above refer.

How capable the parents is of meeting C’s needs

44.   As said in the above, the Father said that the Mother was not able nor capable of meeting C’s needs ( paragraphs 25-34 above refer ). 

45.   The Mother, apart from being worried about the new family of the Father taking away his attention on C, is also not happy with the fact that the Father was too busy with his business and did not keep C company for the entire period during access as he had given his undertaking to the court when he applied for a variation of the Second Access Order.  At the trial, Ms Tsui put to the Father that according to his movement records, there were times that he did not spend the entire period of time with C during the time of access as he had given his undertaking to the court when the Third Access was granted. 

46.   The Father was adamant that he knew how to take care of the needs of the Children.  He had been the main carer of them during the marriage.  He had a busy schedule but his time was flexible.  The reason why he had to travel so frequently across the border was that he had the Children in Hong Kong and his new family in Shunzhen.  His business required him to travel also.  He agreed that he travel between the two places almost everyday. He said during the period of access to C, sometimes he might still have to attend urgent matters as required by his work.

Sibling Unity

47.   The two daughters are now in the Custody of the Father.  The Father said sibling unity is very important.  Ms Rattigan said that the court would have to give a strong reason for an order which would effectively split the children between parents.

48.   The Mother shares the view of Ms Tsui, the social welfare officer, that sibling unity in the present case does not bear heavy weigh or as important as in other cases.  First, N is now studying in England.  She only comes back during term break.  K, now 14, is at a totally different development stage as compared to C who is 4.  They would have different needs and different focus in general and in their daily routine.  The Mother doubted that both K and C would be happy if they were put together under the custody of the Father, especially when C was to be taken away from the Mother.  The Mother is of the view that regular access of good quality would be sufficient to maintain sibling unity in the present case. 

Recommendation of Social worker

49.   Two Social Welfare Officers were commanded to make investigation and report to the court.  There were altogether 3 reports. Only Ms Tsui attended court to be examined by the parties.  In her report, Ms Tsui recommended that the custody of the two daughters be granted to the Father where as the custody of C be to the Mother.

50.   Ms Rattigan complained that Ms Tsui was inexperienced. She had been posted to this department for 4 months.  The report prepared by her was the fourth she had ever done.  She attended court for the first time on custody to be tired.  She had failed to interview some significant persons such as the fiancé of the Father and the daughter of the Mother from her previous marriage.  It was put to her that knowing that the Father had a plan to move his fiancé and their baby to Hong Kong to live with the Children, the fiancé of the Father should be interviewed.  In reply, Ms Tsui said that although there was a plan for the Father to settle his new family here in Hong Kong, there was no concrete schedule for her to know that this was about to happen.  All along she had got the impression from the Father that this was his plan.  For the daughter of the Mother from her previous marriage, she had not got the impression that she would be staying with the Mother on a more permanent basis.  She had seen her in the flat but had not observed the interaction between C and her.   

51.   Ms Rattigan further submitted that Mr Wong’s reports are more reliable. Mr Wong compiled the first two reports after investigation over a period of about 4 months time, he recommended that the custody of the Children be granted to the Father.  His recommendation was not challenged by the Mother as Mr Wong was not summonsed to attend court to be questioned by the Mother.  

52.   Ms Tsui, counsel for the Respondent, submitted that the complaint about the inexperience of Ms Tsui the social welfare officer was groundless since she had been working in the Social Welfare Department for 15 years, with 7 years of experience with family-related work, which included working in family service division, family life education and as a psychiatric social worker with children.  

Analysis

53.   After hearing evidence and viewing all documents put before me, I agree that the Mother had handled the two daughters in the most appropriate manner.  I notice however that the two daughters were not easy to handle.  Both, not through their own fault, had to receive counselling at one stage.  I notice that when K was with the Father, there were also unhappy incidents between them causing K retuning to the Mother.  There were unhappy incidents between the two daughters with the relatives and friends of the Mother over the handing over of C.  It would not be easy for the Mother especially when it was a time she had her own needs to deal with the breakdown of the relationship with the Father.  She had been receiving psychiatric treatment for her emotion.  She was put on medication.  The relationship between the parties was so bad that there had been incidents that report had to be made to the police.  In my view it would not be fair to her if she were the only person to be blamed for what had happened between the daughters and her.  Further, she said many times in court that she was wrong and she admitted frankly in court that in January 2008 she was still angry with the two daughters.

54.   I could not agree with Ms. Rattigan that the Mother was not genuine in her repentance.  I believe it was not easy for one to admit that she was wrong.  When the Mother said she was wrong in court, I could see that she did not take it lightly.  Her remorseful attitude was not without insight.  She told the court why she was wrong and how she realised that she was wrong.  The scenario cited by Ms Rattigan in support of her saying that the Mother was not genuine mainly happened in early January 2008.  That was just the time the Mother had incidents with the two daughters.  The Mother said that at that time they were still angry against each other.  This is confirmed by Mr Wong who said in paragraph 24 of his 2^nd report that

  “….There were also no significant changes in the relationship between the Children-in-question and their parents. K and N still hold very rejecting attitude towards their mother. It is not optimistic that the girls can live harmoniously with their mother in the near future. Thus, the Petitioner’s application for varying the girls’ custody is support worthy.” 

55.   Further, it was put to her that she had no concrete plan to make up the relationship with the daughters.  As to K’s not returning to the Mother after being discharged from the hospital, I find the Mother’s worry about not being able to handle K if she became emotional and resort to self-destructive conduct not unrealistic.  The matter was further complicated by the pending hearing of the criminal charge against the Mother where K was to be a witness.

56.   I am of the view that it would take time to rebuild the relationship.  I agree that the daughters, now in their adolescence and with their experience with the Mother in the past, should be given time and space to work out the relationship with the Mother.  I emphasize that it should take both sides to work out together instead of just leave it to the Mother to take all responsibilities and consequences of the breakdown of their relationship.   

57.   As to the complaint about the Mother being obstructive to Father’s access to C, I would say that this might have been the case in the first half of 2008.  But I do not think the Mother should be the only one to be at fault.  When looking into the Father’s complaint that the access on 29 and 31 January were cancelled without prior notice, I think I could not ignore the incident that took place on 26 January 2008 when N came  with Madam Lam asking to take C for the access.  There was a big row between the Mother’s mother and N and Madam Lam at the main lobby of the building where the Mother lived.  I am not saying that N and Madam Lam were in the wrong.  I am not saying that the Mother was right in cancelling those access appointments.  What I say is that those two incidents should not be seen in isolation.  Mr Wong had reported in paragraph 49 of his first report that the Mother had said to him that she was very dissatisfied with the access arrangement on 26 and 27 January 2008 and she was contemplating to apply to court for the First Access Order to be varied.

58.   The Mother also said that there was not much problem after the Second Access Order.  Although I could not agree with her entirely on this as I notice that there were other unhappy incidents when C was handed over after that date, I see that the arrangement on the access to C by the Father had been improving and there was no serious complaint of non-compliance of the Mother.  At the hearing Ms Tsui also said that there was not much trouble she could observe over a period of months leading to the trial.

59.   In her final submission Ms Rattigan warned the court against acting on uncertainties when dealing with the custody of Children.  She said that even Ms Tsui had agreed under cross-examination that recommending custody be with the Mother could be taking a gamble on her adjusting her life style and spending more time with C.

60.   From the evidence before me I accept that the Mother was busily occupied before.  She had business to run and she had a boyfriend she had to spend time with.  She was unhappy to the extent that she had to be on medication.  She had to see doctors and counsellors.  She had legal matters in many aspects to deal with, civil claims, criminal charge, matrimonial matters and a labour claim lodged by Madam Lam.  She had dealt with them one at a time and now there should only be matrimonial matters for her to focus on. No doubt, she had a very difficult time in 2008.  Of course I am not saying that she should be sympathized for that. That is not what I want to say. As I could see, she took part in creating at least some of the problems. I say that as a matter of fact, she had pretty much to deal with in the past 10 months prior to the trial. Yet, there was not much problem between the Mother and C.  She managed to build up the relationship with C if the Father said that she had not been a good Mother, she had been handling it quite well.

61.   C, a happy and cheerful child, shows no resentment against the Father and the daughters.  I find this a good indication that there was nothing done by the Mother to alienate them.  Mr Wong said in paragraph 67 of his first report that he overheard C saying bad language about the Father in front of the Mother but the Mother neither approved or discouraged C’s such behaviour.  There was no evidence on the Mother alienating the parents.  Mr Wong also said in paragraph 71 that the mother-son relationship was satisfactory and he appeared to be under the appropriate care of the Mother.

62.   Now, the Mother’s life is more settled.  She has made arrangement for C to be admitted in a kindergarten of a standard that matches her expectation.  She had wound up one business. She has started another business on shoes and toys to avoid long working hours and travelling.  She clearly told the court that she would keep C company in the morning, and then went out to do her own work in the afternoon while C was at school.  Then she would come home to have dinner with C.  This arrangement is acceptable.  Even there are some deviations from this pattern, it is understandable for a working mother in the situation in Hong Kong.

63.   When one looks to the future, there are always uncertainties. I would however say that I see less uncertainties if C stays with the Mother. I am more concerned with the uncertainties caused by the new family of the Father.  If the new family continues to stay in Shunzhen, the Father would still be shuttling between two families over the border.  He would still be spending nights in Shunzhen for the best part of a week.  C would have to see the Father off every evening, if he comes back for dinner at all,  and could not be able to see him in the morning.  It would be better for C if the Mother could spend most of the evenings with him if not all, send him to bed and greet him in the morning.

64.   If the new family is coming here to settle in Hong Kong, the new family would need time to settle.  Their new baby would have to adjust to the new environment, new school and new education system.  The Father’s fiancé would have to face changes even though she has frequent visits to Hong Kong. She has her own child to look after.  She has to ease the stress of her child when the latter is facing changes.  She has to build up her relationship with K and N as step-mother and to co-work with Madam Lam to take care of the family.  I understand that the Husband said he would be the main carer for the Children, he would have the final say on the matters relating to the Children.  I am however of view that his fiancé would have to take on the role of a parent in any event.

65.   If C is to leave the Mother and stays with the Father, he would have to face changes like living with a half-sibling who is at the age of 2 and he would have to learn to live with his step-mother.  The Father and Madam Lam would no doubt be able to smooth out some difficulties for him, but if he stays with the Mother, C would have less changes to handle. The Father said the relationship between C and all others had been good. I do not have any doubt. But a relationship based on regular contact during weekends or holidays is not the same as living together as a family under the same roof.

66.   Ms Rattigan made very helpful submissions on sibling unity and urged the court not to split the Children as it is undoubtedly not in their best interest.  I have considered this carefully.  I am aware of the benefit for children to be raised together.  That could not be argued.  I however share the view of Ms Tsui that the Children in the present case are now at different development stages according to their own age.  They have different focus in life and have different need.  I am sure the bondage between the siblings could be maintained by frequent access to C.

67.   After weighing all factors before me, I am of the view that it is in the best interest of C if he is to remain in the custody of the Mother. 

Conclusion

68.    This is the Father’s application to vary an existing custody order. He has to satisfy the court that a variation is in the best interest of C. From evidence before me I am not so satisfied.  I see that both parents are busy with their business. The Father’s new family has made his already busy schedule more hectic.  The Mother however could concentrate only on C at least at this stage and in the near future.  Her daughter from previous marriage is a grown up and I do not see that she would compete with C for the Mother’s attention as in the case of C’s other half-sibling.

69.   The application of the Father to vary the Custody Order as far as C is concerned is dismissed.

Access

70.  I agree with Ms Tsui that the present access arrangement is found to be workable for all parties concerned and is in the best interest of C. The Third Access Order do stand.

Order

71.  The effect of my order is : -

(i)    The Respondent shall continue to have custody, care and control of C;

(ii)  The Third Access Order do stand;

(iii)    There be supervision by the Director of Social Welfare for 12 months and a report be compiled for my perusal in 6 months’ time from today;

(iv)    There be liberty to apply;

(v) There be no order as to costs, including all costs reserved.  This is an order nisi, which will be made final after 21 days.

(vi) Pursuant to Practice Direction 15.11, there be a 1^st Appointment hearing on 6 April 2009 at 9:30a.m.