KKF (nee N) v. JAF

FCMC 7859/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 7859 OF 2012

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JUDGMENT
(Custody, Care and Control and Access)
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1.  This is the trial concerning the custody, care and control and access of the 2 children of the family.

Issues

2.  There is now no dispute that the Wife is suffering from an alcohol abuse problem. The relationship between the parties became increasingly acrimonious since about 2007. The Wife alleged that the Husband was uncaring and unsupportive with little participation in her life and the lives of the children. The Husband alleged that the Wife’s drinking problem was the cause of the breakdown of the marriage. Throughout these proceedings and until shortly before the trial, the Wife wanted joint custody and shared care and control.  Until very recently, she was in denial of her drinking problem and was advocating “controlled drinking”. She has now agreed to attempt absolute abstinence or sobriety and to random urine tests. Initially, the Husband was agreeable to joint custody but later changed his mind when it became obvious that the Wife was in breach of her undertaking not to drink before and during access and that there had been no improvement to her condition.

3.  Shortly before the trial and in the light of the expert reports, the Wife conceded that sole custody, care and control should be granted to the Husband. However, it was agreed that there should be a variation to joint custody when the Wife were able to demonstrate continuous sobriety for a period of 12 months. However, the mechanics of variation of custody remained in dispute. The Wife wanted automatic variation upon demonstration of sobriety. The Husband was of the view that variation should be subject to the approval of the Court and the experts. During the course of the trial, the Wife agreed to the Husband’s proposals for possible future variation.

4.  The only outstanding issues relate to access. There was no dispute that the Wife should have defined supervised access of the children. However, the frequency, length and venue of access were in dispute. The most contentious issue being the venue of initial access.

Background and History of Proceedings

5.  There is a long history behind the deterioration of the marriage. The present proceedings have been protracted and acrimonious. Voluminous Affidavits have been filed with a litany of cross allegations. These proceedings are also littered with multiple interlocutory applications in relation to the arrangements for the children and ancillary relief, including access and removal. In order to understand the reasons behind the disputes, it would be necessary to set out the history of the marriage, the history of these proceedings and a substantial part of the evidence in some detail. However, it is impossible to enumerate all the interlocutory applications here. There will be no detailed reference to various applications for interim maintenance pending suit and for legal costs contribution, save that the Court notes that the Wife alleges that the stress of these proceedings together with the financial difficulties created by the Husband has prevented her from recovery. The omission of some of the events does not mean that they are irrelevant or that they have not been considered. In essence, the Wife complained of the inadequacy of access and that the Husband had made arrangements for the children in a high handed manner and without any regard for her or the children’s need to spend time with her. The Husband says that he remains concerned about the Wife’s level of drinking, her behavior and its effect on the children.

6.  The Petitioner (Wife) and the Respondent (Husband) are both Americans. The Husband is a businessman working for a company owned by his family. The Wife is a qualified attorney but she has never practiced. The parties met in 1997 in law school and were married in Hawaii on 9 September 1999. They lived in California after their marriage until they moved to live in Hong Kong on 1^st September 2001. The first child of the family (I) was born on 1 April 2003, whilst the younger child (S) was born on 22 February 2005.  The 2 children are now studying in a well known international school in Hong Kong.

7.  The relationship between the parties began to break down in 2007 and they sought marriage counseling in 2007 and 2008. The counseling was not fruitful as the Wife believed that the breakdown was caused by the Husband’s lack of affection and commitment to the family, whilst the Husband was of the view that it was caused by the Wife’s alcohol abuse. The Wife admitted that her alcohol consumption was increasing but denied that it was a problem.

8.  In December 2008, the Wife’s father was diagnosed with stage 3 stomach cancer. The Wife admitted that her alcohol consumption increased further to cope with the stress [P4,/847 /para.11]. The Wife’s parents and the Husband became so concerned about the Wife’s level of alcohol consumption that they decided to intervene [P5/970].

9.  The Wife was admitted into the Betty Ford Center in California between 9 December 2009 and 7 January 2010. She was diagnosed by the Betty Ford Centre with Alcohol Dependence and an unspecified Anxiety Disorder.  Although the Wife agreed to go to the Betty Ford Clinic, she continued to have severe denial of the effects of her drinking. She gave inconsistent accounts as to the level of her alcohol consumption. In her initial assessment report from the Betty Ford Clinic, the Wife stated that she was drinking about a bottle to a bottle and a half of wine per day [P5/961]. Subsequently, she reported that she was drinking about a half of a bottle of wine and a third of a quart of vodka per day [P5/990]. She continued to be angry with the intervention from her parents and the Husband. She was unable to stop the use of alcohol. The Betty Ford Centre found that the Wife was unreliable in her accounts of her level of alcohol consumption and continued to minimize the effect her drinking had on others. She was Narcissistic and guarded about treatment. She had difficulty setting boundaries with peers and family members. Although the Wife told the Betty Ford Centre that her ultimate goal was sobriety, her prognosis was guarded to poor. She was recommended to continue with day treatment after discharge but she declined.

10.  The Wife now admits that she basically had no intention to stop drinking at that stage. She only went to the Betty Ford Centre because she was afraid of losing her children. Despite the diagnosis and her alleged fears of not being able to see her children, the Wife started drinking again within days after her discharge from the Betty Ford Centre. The Husband and I went to meet her at the airport only to find that she was drunk and she threw up over the Husband.

11.  The condition of the Wife’s father deteriorated in 2011 and the Wife was in Hawaii from October 2011 to early November 2011. The Wife alleged that the Husband’s father confronted her aggressively about her drinking when she returned from Hawaii in early November 2011 and threatened her with a divorce. However, there was no dispute that on 8 December 2011, the Husband’s father sent an email to the Wife stating, inter alia, that she was part of his family and that he cared for her. He also urged her to seek professional help and offered to put all of his resources at the Wife’s disposal, without reservation or judgment, for as long as it takes to restore the Wife to health and a promising future.

12.  The Wife’s father passed away on 12 November 2011. In mid December 2011, the family went to Hawaii to spend Christmas with the Wife’s mother. On 30 December 2011, the Husband returned to Hong Kong with the children. He insisted that the Wife seek professional treatment for her alcohol problem. He told her that she would not be allowed to return home unless she was adequately sober.

13.  The Wife stated that she was desperate to change, get better and get her children back. She was admitted to Hawaii Island Recovery on 12 January 2012. She was diagnosed with provisional DSM IV 303.90 Alcohol Dependence. The Wife told the treatment centre that she was entering residential treatment as her drinking was negatively affecting her quality of life and relationships. Her primary motivation to become sober was for the welfare of the children. The Wife initially alleged that although she was sober after 30 days of treatment, she stayed at Hawaii Island Recovery for 75 days [P4/850 and 940; P5/1124; P11/3128]. However, she now admits that she was only at this facility for less than 75 days overall. There is no dispute that the Wife left treatment twice between 12 January to 3 February 2012 (for several days on each occasion). During the elopement, she relapsed, with heavy usage of alcohol. She was readmitted on 15 February. During this time, the Wife was said to have developed coping skills and resources to manage stressors while remaining sober and that she was highly motivated to remain sober. A further 1 to 2 month residential program was recommended but was not taken up by the Wife. She was finally discharged on 12 March 2012 [C2/512-513]. The Wife now admits that she did not want help at this stage either. She only attended the treatment to comply with the Husband’s demands and because of her fear of losing the children.

14.  The Wife returned to Hong Kong on 19 March 2012. She was not allowed to return to the matrimonial home. She stayed in alternative accommodation at a serviced apartment called L’Hotel. She admitted that this was in line with the professional advice that she had received from the Betty Ford Centre, Hawaii Island Recovery and Dr Susan Mistler [P5/1126-1127/ paras 21-22]. She was given access (including staying access) to the children after she moved into her present apartment in May 2012. Initially, the children were accompanied by the Husband’s helper during such access. However, after the Wife employed her own helper, she refused to allow the Husband’s helper to accompany the children.

15.  On 4 June 2012, the Wife presented the Petition in these proceedings. A Decree Nisi was granted on 30 October 2012.

16.  By a summons dated 25 September 2012, the Wife sought an order for interim joint care and control of the children. She also sought leave to take the children out of the jurisdiction for a holiday between 18 December 2012 and 5 January 2013 [P4/824-825]. On 28 September 2012, the Wife gave an Undertaking to the Husband and the Court on a no admission basis, that she would not drink alcohol whilst in the presence of the children nor whilst the children are in her care during their periods of access with her [P4/827]. By a summons dated 8 November 2012, the Husband sought leave to remove the children for a holiday in California from 18 December 2012 or 28 December to 5 January 2013 [P4/899]. Both summonses were contested. On 27 November 2012, the late Judge Carlson granted leave to the Wife to take the children to Hawaii from 18 December to 30 December 2012. The Husband’s helper was to accompany the children to Hawaii. The Court also granted leave to the Husband to take the children to California from 30 December 2012 to 5 January 2013 and to Japan from 6 to 13 February 2013 [P4/ 925-935]. The parties also agreed to share the school holidays in February and March 2013.

17.  The 1^st Social Investigation Report dated 4 December 2012 was filed. At that stage, the parties had reached a consensus about joint custody with care and control to the Husband [P4/936-945].

18.  In early February 2013, the Husband alleged that the Wife had been in repeated breach of her Undertaking not to drink and that he was concerned about the Wife driving the children during access. He also alleged that the Wife has refused to allow the children to continue with their normal weekend activities because it impinges on her access The Wife had also refused to disclose the report from Hawaii Island Recovery [P5/952].  By a summons filed on 6 February 2013, the Father sought orders that:-

(1) the Wife be given access, including staying access during weekends from Friday after school to mid Sunday afternoon during term time;

(2) such access should be accompanied by the Husband’s helper, save that in the evenings, the helper do leave the Wife’s home once the children are asleep and returns the next morning at 8 a.m. ;

(3) The children do continue attending their registered weekend activities during access with the Wife;

(4) A direction that the Wife will not personally drive the children while they are in her care; and

(5) A direction for the appointment of a psychiatrist to evaluate the Wife’s medical condition.

19.  The Wife did not want access to be accompanied by the Husband’s helper. She also complained about the lack of access in February 2013. On 22 February 2013, the Wife gave an Undertaking to the Husband and the Court that she would allow the Husband’s helper to accompany the children between 8 a.m. to 8 p.m. or until the children return to the Wife’s home during access days. She also undertook not to personally drive the children during access [P5/1107]. Her access resumed after she gave the Undertakings. However, there were further complaints about the Husband and his mother interfering with access. She also denied that she had been in breach of the Undertaking not to drink during access [P5/1121-1135]. By a summons filed on 12 March 2013, the Wife asked for orders of defined interim access, including holiday access, make up access and telephone access [P5, 1117].

20.  On 13 March 2013, upon a number of Undertakings and Acknowledgements from the parties (including an Undertaking from the Wife that she would refrain from drinking alcohol from the day that her access commences and for the duration of her access), the Wife was granted defined access to the children [P5/1157-1161]. She basically had access to the children each weekend (from Friday to Sunday for weeks 1 and 3 and from Friday to Saturday for weeks 2 and 4). She also had weekday access every Wednesday and every other Monday. In addition, there was access on certain non-school days. Further, the Wife was released from her Undertaking for the Husband’s helper to accompany the children during access. Instead, she gave an undertaking that her helper would be on duty throughout access times [P5/1161]

21.  Further disputes arose soon after the making of the order dated 13 March 2013. The Husband complained about the Wife’s drinking on access days, the Wife’s lack of participation in the children’s activities and the Wife’s lack of parenting. There were disputes in relation to the Husband’s attendance at the children’s activities. The Husband indicated that he would be happy to share the summer holidays (with the Wife having the larger half of the holidays) provided that suitable arrangements were made. However, there was a dispute was to those arrangements. The Husband objected to the Wife’s request to be released from her Undertaking not to drive the children and the Undertaking that children would be accompanied by the Wife’s helper during access [P5/1186-1192]. The Husband’s allegations in respect of the Wife’s drinking and lack of parenting was supported by an Affidavit from his helper [P5/1230-1233]. On the other hand, the Wife complained that the Husband had made high handed arrangements for the summer without any consultation, that he objected to her driving but refused to provide funds for transport and that the Husband had failed to provide funds for airfares to facilitate the changeover [P5/1253-1264].

22.  Dr Alicia Pon (Dr Pon), who has been treating the children since April 2012 produced her report on 17 April 2013 [P5/1169-1174]. In her report, Dr Pon expressed concerns about the level of conflict between the parties, the inconsistency in parenting styles or boundaries and the subsequent effect of such conflicts on the children’s long term adjustment.

23.  On 30 May 2013, the Husband was granted leave to take the children to the United States for a holiday on 13 June 2013. The arrangements for May 2013 and for the summer were eventually agreed and the terms are set out in two consent orders, both dated 27 June 2013 [P5/1304-1306].

24.  Dr Stephen Ng (Dr Ng) was appointed as a single joint expert in respect of the Wife’s psychiatric condition. The Wife told Dr Ng that she had better control of alcohol use “in the past few months”. Dr Ng’s first report was produced on 28 Jun 2013. The Wife was diagnosed with 305.00 Alcohol Abuse under DSM-IV-TR. According to Dr Ng, 305 Alcohol Abuse meant:-

“School and job performance may suffer from the aftereffects of drinking or from actual intoxication on the job or at school; children care or household responsibilities may be neglected; and alcohol-related absences may occur from school or job. The person may use alcohol in physically hazardous circumstances (e.g. driving an automobile or operating machinery while intoxicated). Finally, individuals with Alcohol Abuse may continue to consume alcohol despite the knowledge that continued consumption possess significant social or interpersonal problems for them [P6/1327].

25.  The Wife agreed to have the psychiatric treatment recommended by Dr Ng once every one to two weeks together with monitoring to enable her to practice controlled drinking and overcome her bereavement and mood symptoms [P6/1323-1324]. On 4 July 2013, it was ordered by consent that the Wife shall as soon as reasonably possible seek professional treatment and counseling recommended by Dr Ng [P6/1334]. 

26.  Disputes arose again in early August 2013. The Husband discovered that in breach of her Undertakings, the Wife had been drinking during holiday access with the children and there were times when the children were not accompanied by a helper during access. This was initially denied by the Wife [C2/632-637].  The Affidavit of the Wife’s helper was filed on 8 August 2013 in support of the Husband’s allegations. She deposed that during access, she would look after the children whilst the Wife spent time in her bedroom watching television and drinking alcohol. The Wife was drinking practically all day long and even drinks during access. Sometimes, the Wife drank 2 bottles of “Bubbles” and a quarter bottle of vodka per day. She disguises her drinking by mixing the alcohol with grape juice during access. There was alcohol hidden in the bedroom, under the kitchen and bathroom sinks and in the bathroom cabinet. When the Wife was drunk, she was abusive to the children and the helper. The Wife was drinking on the airplane and throughout the holiday access in Koh Samui. She never spent any real time with the children during this holiday access. The Wife also asked the hotel to alter her hotel bill by substitute her alcohol consumption with other items. Since coming back from Koh Samui, the Wife has allowed the children to swim unsupervised. Photographs and receipts for the purchase of alcohol were produced [P6/1337-1342].

27.  On the same day and after the helper’s Affidavit had been served, the Wife admitted that she had been in breach of her Undertakings but denied that she had been drunk or that she had been inattentive with the children. She agreed to voluntary suspension of the access regime set out in the order dated 13 March 2013 [C2/638]. She now admits that she was playing a game of “catch me if you can” at the time.

28.  In the light of the Wife’s breach of Undertakings, Dr Ng was asked to prepare an updated report. In his report dated 19 September 2013, Dr Ng stated that the helper’s Affidavit casted doubt on the veracity of the Wife’s admitted level of drinking. There was no change to the Wife’s condition. He was of the view that the Wife would not be able to practice controlled drinking without professional treatment. He suggested a treatment period of 9 months [P6/1616-1623].

29.  At about this time, the Wife suggested mediation in relation to all matters in these proceedings. After mediation failed, the Wife started sending inappropriate emails to the parents of children’s friends [C2/670, 742, 745] and sports coaches [C3/844, 847, 849]. There were also many rude or provocative emails to the Husband [C2/739-741, 747, 767, 774, 778, 780, 782-784]. Further, there was also an allegation that the Wife’s mother had reported that the Wife was drunk driving. This was subsequently denied by the Wife’s mother. There was no dispute that the Wife subsequently sent rude messages to the Husband’s family using her mother’s email [P8/1996, 2021-2025].

30.  This was followed by disputes in relation to arrangements for defined access outside the Wife’s home, the children’s overseas sports trips and holiday arrangements [P8/1996-2002, 2053-2068]. There was no dispute that the access should be supervised. The main issue was the venue of access. The Husband wanted the access to take place at the American Club whilst the Wife wanted access in her home. On 18 November 2013, the Court granted leave for removal of the children for various overseas trips. In addition, the following supervised defined access was granted to the Wife:-

(a) Each Monday at the Repulse Bay Club from 4 pm to 6:15 pm for S;

(b) Each Wednesday at the American Club from after school for both I and S until each of them leaves for their respective activity, at 4:45 pm for S and 5:45 pm for I;

(c) Alternate Saturday at the American Club for both children from 2 pm to 6 pm commencing 23 November 2013;

(d) Alternate Sunday at the American Club for both children at 9:30 am to 2 pm with S having swimming training from 12:15 pm commencing 1 December 2013.

Further additional defined access was granted between 24 November 2013 and 9 February 2014 [P8/2108-2110]. The above access arrangements have continued to date.

31.  The Wife continued to complain about difficulties with access despite the order. On 13 December 2013 she made an application for make up access. That summons was subsequently dismissed by consent on 8 January 2014.  Nevertheless, there were continued disputes as to the Wife’s alcohol consumption and the difficulties of access right up to the time of the trial [P11/3108-3155, 3344-3349, 3351-3404].

32.  I had a swim meet in Perth between 17 and 21 April 2014. After much discussion between the parties’ solicitors, a Consent Summons was signed on the day of I’s departure to allow her to attend this swim meet. By that time, it was too late to have the order sealed before her departure. However, that afternoon, the Husband received an email from the Wife forwarding an email she received from the Hong Kong International Airport stating that if she suspects a violation of the Court order, she should report to the police or call 999 for immediate assistance [C5/1624-1626, 1699.]

33.  Dr Lynette Levy Bandeira’s (Dr Levy Bandeira) produced her report on 23 April 2014 [P11/3240-3253], setting out her recommendations in relation to the arrangements for the children. On 30 April 2014, Dr Ng produced his 3^rd report where he found no change in the Wife’s condition and he doubted whether she had received the psychiatric treatment he had previously recommended. The most updated Social Investigation report was produced on 5 May 2014 with a recommendation of sole custody, care and control to the Husband and defined access to the Wife [P11/3286-3295].

34.  After the filing of Dr Ng’s 3^rd report, it became obvious that the Wife had not been attending regular psychiatric treatment. Instead, she had been self medicating on Cipram.

35.  Both parties filed Affidavits in mid May 2014. The Wife complained that I had been stalked on Instagram. The Husband complained that the Wife had set up the Instagram accounts for both children despite his known objections [P11/3373-3374]. The Wife also made allegations of a sexual nature against the Husband’s father and helper. In addition, the Wife complained about I’s snapshots post in her swimming costume. This has resulted in I being pulled out of class to see a school counselor [P11/3388-3389]. Although Dr Levy Bandeira has recommended that the children’s activities should take first priority, the disputes in relation to access continued. There was a further dispute about access on Mother’s day [11/3397].

36.  The trial commenced on 20 May 2014. The evidence was completed on 30 May 2014. The parties returned with written final submissions. The Husband’s legal representatives filed Supplemental and Further Supplemental Submissions on 7 and 9 July 2014 respectively. The Wife’s legal representatives complained about those Supplemental submissions and asked for a right to reply. On 14 July 2014, the Court granted leave was granted to the Wife to reply to the Husband’s further submissions by 31 July 2014. No further submissions from the Wife were received. On 13 August 2014, the Court granted an extension of 7 days to the Wife to file her submissions in reply. On 20 August 2014, the Wife indicated that she was not going to reply to the further submissions from the Husband but asked that the factual allegations (in particular, the emails sent by the Wife after the conclusion of evidence) in those submissions be ignored.

37.  The allegations against the Wife were not made on oath. The Court already has ample evidence on which to decide the issues between the parties. The Court does not propose to consider the further allegations in the Husband’s two supplemental submissions. However, the children’s finalized schedules were also contained in the Husband’s Supplemental Submissions. The Wife has not filed any supplemental submissions and it therefore does not appear that the schedule is in dispute. In those circumstances, the Court must decide access on the basis of that schedule.     

The Law

38.  Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap.192 states that:-

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(a) In any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

39.  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 section 3(1)(a) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) which was amended and came into operation on 13 April 2012. The word “welfare” in section 3(1)(a) was repealed and was substituted by “best interests” and the word “wishes” in section 3(1)(a)(i)(A) was repealed and substituted by “views”. The new section now provides that the court:-

(1) In relation to the custody or upbringing of a minor…

(a) In any proceedings before any court…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; 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…

40.  Section 48C of the Matrimonial Causes Ordinance, Cap.179 provides that:-

…Section 3 of the Guardianship of Minors Ordinance (Cap.13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which ma6y be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap.192).

41.  There is no corresponding legislative amendment to section 48C regarding the word “welfare”. According to Rayden and Jackson on Divorce and Family Matters (18^th Edition, Chapter 36.14, 36/11), the word “welfare” has similar meaning with “best interests”, which is 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.”

42.  In England where the same welfare principles apply to children matters and from which the Hong Kong section 3(1)(a) of GMO were derived, the courts are required to have regard to the matters specified in the Children Act 1989 which have come to be known as ‘the welfare checklist’. Such checklist is also proposed in section 9.29 of the Report on Child Custody and Access published by the Law Reform Commission of Hong Kong in March 2005 and is as follows:-

(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 of 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) the practical difficulty and expense of a child having contact with a parent and whether that difficulty and 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;

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

43.  Some of the factors mentioned in the checklist are not applicable to the present case. Only those which are relevant would be considered. Further, it would not be necessary for this Court to resolve each and every factual dispute between the parties.

Joint Custody

44.  The parties have now agreed that any application for variation to joint custody would be subject to approval from the Court, Dr Ng and Dr Levy Bandeira. The Wife originally asked for an order that there should be an automatic variation to joint custody upon demonstration of 12 months of continuous sobriety. Her original stance was in fact impracticable and untenable under the law. When a Court is faced with the question of variation, it is required to consider the matter afresh and it is imperative that the Court is informed of all the relevant circumstances surrounding the children at the time of the proposed variation. The Court could not and would not grant an automatic variation in total ignorance of those circumstances.

45.  Further, apart from the problem with alcohol, both Dr Pon and Dr Levy Bandeira have identified a number of issues concerning the Wife. In her report, Dr Levy Bandeira concluded that there were still a lot of acrimony and distrust between the parties. By her own admission, the Wife’s judgment, impulse control and decision-making has often been affected by her alcohol use. The children have benefitted from the structure and routines established by the Husband. If the Wife continues her previous behavior, it would only serve to undermine the Husband’s parenting and attempts at maintaining the necessary boundaries and routine that they need for their continued stable adjustment. As the children get older, they may become embarrassed by the Wife’s behavior and it will also undermine the quality of her own relationship with the children. Dr Levy Bandeira recommended that the Wife undergoes treatment and learns how to manage her behavior, parenting and drinking. The treatments the doctor suggested include psychiatric treatment, psychotherapy and parenting sessions. She stated that the issue of joint custody should only be revisited when the Wife can demonstrate some improvement [P5/1172-1174; P11/3248-3249, 3252].

46.  Dr Pon was very concerned over the reality that both children remain triangulated between their parents, their acrimonious relationship, and the lack of communication. Both children shared that they served as their parents’ messengers on many occasions or that they had gone to the American Club for access only to find that the Wife was not there. The children will suffer from their parents’ inability to parallel parent or self regulate in terms of emotions and behaviors around each other. For example, the Wife purchased a dog for I’s birthday without first consulting the Husband and directly contrary to Dr Pon’s advice. I was very upset when the Husband refused to have the dog in his home. The Wife agreed to keep the dog in her home but this led to I’s request to go to the Wife’s home to see the dog. I was very upset when her request was not granted [P11/3139, 3216, 3228, 3243, 3252]. 

47.  The Court wholly agrees with Dr Pon and Dr Levy Bandeira’s conclusions. Joint custody would only be reasonable and practicable if the parents are able to work together. It would not be workable if there is so much acrimony and distrust between the parties. It is also obvious that the Wife has deliberately undermined the boundaries and routines established by the Husband in the past. For example, she knew that the children are not allowed to play with their electronic devices during weekdays. However, she then went and bought them each an iPad. She admitted that she had downloaded games for them and allowed them unlimited use of the iPad during access. Another example is the Instagram accounts. The Wife knew the Husband’s views about social media. It would be obvious to any responsible parent that such social media is inappropriate for children of this age. However, she went ahead to set up Instagram accounts for both children. It is unclear whether the children are aware of the Wife’s emails to their friends’ parents and sports coaches. If they knew and if these continued, they would be hugely embarrassed.

48.  For the avoidance of doubt, even if the Wife were able to demonstrate 12 months of continuous sobriety, the Court would not be prepared to consider a variation of custody unless and until all those other issues have been properly and satisfactorily resolved.

Defined Supervised Access

49.  There is no dispute that access should be defined and supervised. Originally, there was a suggestion that a firm of professional nannies should be engaged to supervise. However, there are obvious problems with this suggestion. The Wife is already and has been for some time complaining about the change of access times to accommodate the children’s activities. Should there be any last minute changes, it is unlikely that a professional nanny could be arranged. Further, the attending nanny may not be the same on each occasion. In other words, the children may be subject to the supervision of a complete stranger with no rapport or trust between them. Fortunately, it appears that there is no objection to the supervision being performed by the Husband’s helper or some other 3^rd party nominated by him.

Venue of Access

50.  The Husband continues to be concerned about the Wife’s level of alcohol consumption and is therefore opposed to the Wife having access at her home until she can demonstrate 3 months of continuous sobriety. The Wife and the children have all expressed the wish that access resume at the Wife’s home. The Wife argued that her home would be a more relaxing environment where children can have some “down time” after their very busy schedules. The children resent having access at the Clubs. The Wife was willing and capable to help the children with their homework. She has never caused the children physical harm. Further, she has agreed to an onerous regime of urine testing in addition to supervision and that should be sufficient to safeguard the children’s interests.

51.  There are a number of problems with having access at the Wife’s home. There is now no dispute that the Wife has had a problem with alcohol consumption for some time. Her description of her level of drinking has proved to be extremely unreliable. She told the Betty Ford Centre that she started drinking on a social level in her late teens [P5/961]. It was unclear from the report from the Betty Ford Centre as to when her drinking began to increase. She alleged that she did not have any drinking problem prior to the breakdown of her marriage. In 2007, she was only drinking about 3 glasses of wine a day [P5/961]. However, she also told the Betty Ford Centre that her drinking increased after the start of her marriage and that she was drinking a bottle and a half of wine daily [P5/961]. In another part of the report, the Wife stated that her daily consumption was half a bottle of wine and a third of a quart of vodka [P5/994].

52.  The drinking history the Wife described to Dr Ng was also slightly different. She told Dr Ng that she started using alcohol since the age of 18. At the time, she was only drinking over weekends. She started using more alcohol in 2005 and she was drinking up to a bottle of alcohol per day in 2008 [P6/1314]. After her return from Hawaii Island Recovery, she was sober until July 2012. Thereafter, she practiced controlled drinking. She told Dr Ng in his first report that she would use one glass of wine every other day with around one bottle of wine per week [P6/1316].

53.  In the Social Investigation Report (SIR) dated 4 December 2012, the Wife told the Social Welfare Officer (SWO) that she had not used alcohol since her discharge from Hawaii Island Recovery [P4/940].  In the SIR dated 13 May 2013, the Wife told the Social Welfare Officer that she was drinking a cup of wine each day and she had been leading a healthy lifestyle over the previous year [P5/1178]. In the most updated SIR, the Wife stated that she was drinking 2 glasses of sparkling wine or Vodka before she went to sleep 3 times a week [P11/3289].

54.  The Wife asserts that she is now determined to be sober in the interests of the children. This is not the first time that the Wife has made this promise. She told the Betty Ford Centre that her goal was sobriety. However, in her 8^th Affidavit filed on 10 April 2014, the Wife admitted that she only said that to the Betty Ford Centre because she thought that that was what they wanted to hear [P11/3122-3/para 82]. In fact, at the time, she did not want to get better.

55.  The Wife told Hawaii Island Recovery that her drinking was negatively impacting her quality of life and relationships and her primary motivation to become sober was for the welfare of the children. She said she was ready to commit fully to the treatment program. Despite that, she eloped twice from Hawaii Island Recovery and she reported heavy alcohol usage during both elopements. In her 8th Affidavit, the Wife stated that she was genuine in her intentions to become sober when she went to Hawaii Island Recovery [P11/3124]. However, she has now admitted that she did not want treatment at the time and she only stayed at the facility to comply with the Husband’s demands.

56.  In the SIR dated 4 December 2012, the Wife told the SWO that she was determined to quit her drinking habit and that she has ceased to drink alcohol after discharge from Hawaii Island Recovery [P4/936-945].

57.  Despite those assertions, the Wife has continued to drink. She was not allowed to return to the matrimonial home after Hawaii Island Recovery and she says that she had no access during the initial stages of separation. Subsequently, she was given overnight access subject to an undertaking not to drink. That access was suspended because she was found to be in breach of her undertakings. Despite that, she has continued to drink. Even in the latest SIR dated 5 May 2014, I told the Social Welfare Officer that she can tell that the Wife had been drinking alcohol prior to access because she could smell the alcohol on the Wife [P11/3292].  In all Dr Ng’s reports, the level of the Wife’s drinking problem has remained unchanged throughout these proceedings (DSM IV 305.00). Up until the trial, the Wife has consistently denied that she had an alcohol problem. She alleged that it was a conspiracy and fabrication by the Husband and his family to take the children away from her [P4/850, P5/1178].

58.  The Wife has advocated “controlled drinking” up until the trial.  It was clear from Dr Ng’s 2^nd report that this could only be achieved with regular psychiatric treatment and monitoring [P6/1323-1324]. On 4 July 2013, it was ordered by consent that the Wife shall as soon as reasonably possible seek professional treatment and counseling recommended by Dr Ng [P6/1334].  Despite that, it is now clear that the Wife has not sought regular treatment from Dr Connell. The Wife argued that she was not properly treated by Dt. Connell. She had been advised by Dr Mistler to seek a second opinion. She did not follow this advice. Instead, she has been self-medicating on Cipram. The Wife explained that she did not seek a second opinion because she felt a loyalty to Dr Connell. She was afraid that the Husband would make use of her intake of anti-depressants against her in these proceedings. Although she asserted that her father was supportive of her taking anti-depressants in her Affidavit, she now says her father was against it. The Wife also stated that she was very confused and was awaiting the Court’s direction. Despite that, she consistently created the impression that she had been seeing Dr Connell regularly and that he had prescribed the Cipram [P11/3245, 3264.

59.  The Wife clearly knew that she was given time to receive psychiatric support to allow her to attempt “controlled drinking”. It was clear from Dr Ng’s 2^nd report that this could not be achieved without treatment and monitoring. This would directly affect her claims for joint custody and shared care and control. There was also an Order for her to seek the treatment recommended by Dr Ng. Throughout these proceedings, every single dispute has been brought to the Court’s attention. If she were confused, she could have sought directions from the Court. It is difficult to see how the Husband could have used her intake of anti-depressants against her if they had been prescribed by a doctor. If her fears were genuine, self-medicating would make the situation worst.  Her evidence in this regard is very illogical and difficult to accept.

60.  The Wife only changed her stance when confronted with the reports from Dr Levy Bandeira and the 3^rd report from Dr Ng. Dr Levy Bandeira specifically pointed out that although a regimen of controlled drinking may be suitable for the Wife personally, it carries great risk for the children [P11/3243]. Dr Ng discovered that the Wife had not been receiving regular psychiatric treatment.

61.  The Wife has given a number of undertakings to the Husband and the Court in these proceedings. In her 8^th Affidavit, she stated that she only gave those undertakings to achieve time with the children and that the Husband had forced her to give those undertakings in an attempt to prove that she was in breach [P11/3125-3126]. She has now admitted that she has been playing a game of “catch me if you can”. All along, the Wife has demonstrated that she has no intention to abide by her promises. She has flagrantly flouted court orders made subject to her undertaking and has made a mockery of the orders of this court.

62.  In conclusion, the Wife’s real intentions and her determination to become sober is yet to be seen. The Court has grave doubts as to her sincerity. Even if her intentions are genuine on this occasion, the Wife appears to deal with the stresses in her life by drinking. There are still very acrimonious ongoing ancillary relief proceedings between the parties.  The risk of relapse is particularly high, especially in the initial stages of attempted abstinence.

63.  The Wife argued that the access will be supervised by the Husband’s helper and that she has agreed to an onerous regime of urine tests. Supervision by the Husband’s helper has proved to be of no deterrence in the past. The Wife argued that access could be moved out of the home should she fail any of the urine tests. This would only create instability for the children.

64.  Further, the proposed urine test has many deficiencies. It is quite clear that the Wife can only be tested during office hours. In other words, she knows for certain that she could not be tested over most of the weekends. There is no dispute that alcohol can only be detected through urine tests within 12 to 24 hours. The collection of urine samples would not be supervised. Although the Wife would not be allowed to take anything into the toilet with her, there is no power of search by the nurses and it is always possible to hide samples on her person. Although urine tests have been agreed by the parties, the Court is not bound to endorse that agreement unless it is in the best interests of the children. In the light of the lack of trust between the parties, the deficiencies would only lead to further argument and would not safe guard the interests of the children. The Court is of the view that the only way to achieve reliable results is for the Wife to undergo a regime of blood tests for alcohol. Save for the drawing of blood by the nurse and the frequency (which is subject to Dr Daisy Luk’s advice after considering the requirement to demonstrate continuous abstinence), the Court expects the Protocol for the blood tests to be in line with those of the proposed urine tests. 

65.  The Wife has all along minimized the effect of her drinking in these proceedings. She stated that she has never placed the children in harm’s way and the children have suffered no physical damage. It is evident that the Wife’s drinking and the subsequent conflicts have had an impact on the children.

66.  In her report dated 17 April 2013, Dr Pon, expressed concerns about the level of conflict between the parties, the inconsistency in parenting styles or boundaries and the subsequent effect of such conflicts on the children’s long term adjustment [P5/1169-1174]. Those problems have persisted despite Dr Pon’s report.  In fact, the problems escalated further after this report when the Wife began sending inappropriate emails to parents of the children’s friends and sports coaches [P8/1992; C2/670, 742, 745; C3/844,847].  It is not clear whether those emails were send under the influence of alcohol. According to Dr Levy Bandeira, it would be very worrying if the Wife had not been drinking when she sent those emails.

67.  There were complaints that the Wife was driving the children after consuming alcohol. The Wife has not denied drinking but alleged that she was not drunk. The fact is, the children would be exposed to the risk of physical danger if the Wife drove under the influence of alcohol. 

68.  Dr Levy Bandeira stated that the Wife’s continued alcohol consumption in spite of having lost overnight access with her children due to her breach of her undertaking suggests that her alcohol consumption is likely to interfere with effective parenting and she has encountered difficulty in abstaining despite the risk of alcohol consumption may well jeopardize her access, and possibly custody, care and control. The Wife’s poor emotional self regulation and impulsivity, as demonstrated by her repeated emotional outbursts when upset, some of which involve confrontations with others. The acrimonious relationship between the parents will likely lead to more conflict [P11/3250].

69.  I told Dr Pon that she felt insecure and worry when she saw that the Wife was “not mum but a different person”. She constantly worries about the Wife [P5/1171].  Dr Levy Bandeira found I to be a mature and articulate child. She had a good understanding of the current situation and the Wife’s alcohol use. I understands that the Wife needs help due to her drinking and she feels helpless and frustrated that her mother has continued to use alcohol. I stated that the Wife’s continued use of alcohol places her in loyalty bind as her mother will be upset if she tells her father about the drinking, whereas the Husband will be upset if she does not. She would like overnight access to resume and expressed some anger towards the Wife with regard to her inability to stop using alcohol as it affects their time together. I elaborated that there are many limitations regarding where they can go on access due to her mother’s drinking and the contact has always been supervised. She volunteered the belief that her mother is addicted and cannot stop even if she wanted to, but she could have made better decisions.

70.  I told the SWO that the Wife used to drink a lot when they were still living together. She has seen the Wife drink less since the separation and during access. The Wife slept a lot and was not in a good mood and her eyes got red. She also spoke loudly. The current access takes place in clubs and are supervised by the Wife’s helper. The parents had a lot of conflicts over access such as when the access clashed with the children’s activities [SIR dated 5 May 2014 P11/3288-3289].

71.  S told Dr Levy Bandeira that he would like to see more of his mother and that he misses going to her home as he misses the dog and hamster. However, he was not ready to resume overnight access but gave no reason for it. S expressed insight that conflict levels between his parents are high. Although he was reluctant to engage in discussion about the Wife’s alcohol use, he did express some anxiety and fear about the effects of alcohol on her health. He was worried that she would “go crazy” but was unable to fully explain what that means [P11/3247].

72.  I has clearly developed an ability to tell when the Wife has been drinking. Even if the Wife does not drink in front of the children, the children will again be placed in a loyalty bind if they see alcohol hidden in the Wife’s home. Having regard to their intense dislike of having access in the Clubs, they would be more reluctant to tell the Husband.

73.  The Wife and the children have all urged the Court to move access back to the Wife’s home. The children’s wishes is only one of the factors that the Court should consider. The Court must be satisfied that the Orders it makes are in the best interests of the children.

74.  Dr Pon, Dr Levy Bandeira [P11/3248-3249] and the SWO all stated that that it would be preferable if access could be in a more relaxed environment, such as the Wife’s home. They all appear to assume that there would be more interaction between the Wife and the children should access be in the home. This assumption is clearly incorrect.

75.  The Wife’s description of their previous time at home as follows:-

“The children and I enjoy spending time on the couch where I get to cuddle them and we watch movies together, watch You Tube videos, play their ‘everyday math online’ for ‘world math day’, or play some iPad game. The Respondent disallows iPad during the week so every week I will download new apps which is when the children can then play the iPad. This is special time for me and the children” [P5/1128/para29.2].

76.  The children however, painted a very different picture to Dr Pon. In her report dated 17 April 2013, Dr Pon reported that:-

“S reported that he enjoyed access with his mother as he determines what he wants to do there. S admitted that though his mother had attempted to set specific bedtime or homework routines, he shared that sometimes his mother was not there to enforce them and he was able to avoid those tasks and engage in what he likes. S also shared that I is trying to set the boundaries in his mother’s home but he finds her bossy and intrusive [P5/1170]…

Though I looks forward to going to her mother’s place, she wishes that her time with her mother could focus more on doing things together as a family. I shared that each of them does different things in the home during their access with their mother. I preferred that there are more familial activities and that there could be more engagement with each other. At present, I informs me that her mother would organize playdates for her and that S plays with his electronic games or has his own playdates” (my emphasis) [P5/1171-1172].The children also reported to Dr Pon that the Wife would often stay in her room while the children engaged in their own activities [P11/3242].

77.  It therefore appears that there was very little interaction even when access was in the Wife’s home. What is most tragic is that the children have repeatedly said that what they missed about the Wife’s home was their pets, the video games and the freedom to do whatever they want and there was not a single mention of their interaction with the Wife [P11/3243]. There would be no improvement unless the Wife understands that what the children are craving is interaction or “doing things as a family” and that each person doing their own thing in the same place is not interaction. Further, the Wife has repeatedly undermined the boundaries set by the Husband when the children had access in her home. As explained above, this is not in the interests of the children.

78.  The Wife argued that the children could complete their homework in her home, rather than deal with it after access. I has made it very clear that she prefers the Husband to help her with her homework. She specifically mentioned that when she had access in the Wife’s home, she wanted to telephone the Husband for help and was upset when the Wife would not allow it [P5/1181].  I also indicated that she would feel less stressed if she could have access after completion of all her activities.

79.  The Court noted that although Dr Pon has recommended access in the Wife’s home, she has qualified this recommendation. She stated that this would depend on the Wife’s ability to appropriately structure the environment for the children as well as provide a safe and protected space for the children to engage and build their bond with her. Dr Pon cautioned and reiterated the need for that safe and protected space as I shared directly with Dr Pon the belief that the Wife is still drinking. Dr Pon stated that it was imperative that a system has to be put in place to protect the children before any changes of venues or access arrangements are considered [P11/3243] (my emphasis).

80.  According to Dr Levy Bandeira, although supervision has the effect of protecting the children, continued alcohol use around the children only serves to create instability and volatility in the situation. 

81.  Dr Pon stated in her report that although both parents may have different parenting styles, it is important that the children are not confused with different rules and expectations from different households. Within each household, there is definitely room for variations with regard on things like bedtimes and curfews but these differences should be minor…school age children are still young and that they need their parents to provide the expectations and directions in determining what is acceptable and unacceptable. In addition, they should strive on consistency and predictability. Hence it is important that both parents’ rules should be similar and they should be equally strict, if not, both children are going to learn to take advantage of the differences. This will also help the children in adjusting and adapting between two households and thus reduce confusions and frustrations for them. Dr Pon warned that the lack of coordination between both parents can trigger conflicts over discipline, rule, homework, nutrition, bedtime, hygiene and the handling of extracurricular activities, amongst many others. Many research have shown that children cope better if each family’s routine are coordinated, and that there are predictability to the expectations and schedule for each household. It is noted that both children will continue to strive in areas of self esteem and school achievement when they can count on both the Husband and the Wife’s stability, amicability and a firm but loving nature [P5/1172-1174; P11/3252].

82.  The children have only been given the option of having access in the Clubs and in the Wife’s home. The Husband has now agreed to allow supervised access anywhere outside the Wife’s home. This is a very sensible suggestion, at least during the initial stages of the Wife’s recovery. The children would not be confined to the Clubs. The Wife is at liberty to take them anywhere other than her home. They could go to a movie, have an early dinner, go shopping or attend one of the many upcoming Kidsfest performances at the Academy of Performing Arts. At the weekends, they could go hiking or walk the dog. These are exactly the “family activities” that the children have been craving all along. They would also provide new topics of conversation. 

83.  In the light of all the above-mentioned matters, for the time being the Wife’s home is clearly not a “safe and protected environment” as defined by Dr Pon and Dr Levy Bandeira. It would be in the best interests of the children if access were supervised and conducted outside the Wife’s home until she can demonstrate 3 months of continuous sobriety through blood tests and upon completion of a parenting course. The Wife should provide copies of her blood tests results to the Husband and file them into Court on a monthly basis together with her log book recording requests for tests. The Husband should be notified in writing within 48 hours should the Wife fail any of her tests. The change of venue into the Wife’s home is a big step in this case and it will be subject to the Court approval.

Access Schedule

84.  The Access Schedule is the most difficult part of these proceedings. The children both have very busy schedules, which is in fact very common nowadays. The Wife has consistently complained that the children’s activities have impinged on her access time. However, there is now no dispute that these activities have given the children confidence and self esteem and has helped them cope with these very acrimonious proceedings. It is also agreed that their activities should take precedence over access.

85.  Whilst the Court recognizes the need for the children to see their mother, it is equally important for them to spend quality time with the Husband. They have very busy schedules. I has swimming training 4 mornings a week. The training starts at 5:30 am or 6 am. On Wednesdays, she does not finish her activities until 8:45 pm. On Fridays, the Wife has enrolled I for Cotillion which does not finish until 7:30 pm. There are sporting events over the weekend, the times and venues of which vary. S has a slightly less hectic schedule but he does not normally finish his activities until 5 pm or 5:30 pm. On Mondays, he has soccer until 8 pm. On Wednesdays, his activities do not finish until 7:45 pm. Like I,he also has various sporting events over the weekend. In other words, although they live with the Husband, he only really sees them before they leave home and after their activities. He will also of course see them at activities which he attends.

86.  Apart from their need to spend time with their parents, the children need time to rest, finish their homework and attend social activities. I reported to Dr Levy Bandeira that she feels quite overwhelmed from stress related to both schoolwork and the divorce. She feels that her schedule is hectic due to access arrangements, and at times feels too fatigued to attend access, although she does love and miss her mother [P11/3246, 3250]. Dr Levy Bandeira stated that the children need time each evening to de-stress and their own space to relax. Working out an access schedule is a delicate balancing exercise, taking into consideration all of those needs. After suspension of overnight access, the children reported to Dr Pon that they had more time to rest and conduct social activities with her friends (which is developmentally appropriate). I has repeatedly reported that although she loves and misses the Wife, she would at times, prefer to spend her time with her friends than visit with the Wife [P11/3243].

87.  The children’s schedules are now as follows:-

# Basketball matches 10-15 games spread between September 2014 to May 2015

*2014: 29 Aug, 12 & 19 Sep, 10 Oct, 7, 14 & 21 Nov, 6 Dec; 2015: 9, 16 & 30 Jan, 6 & 27 Feb, 6 & 21 Mar

  (Note that Cotillion goes until 7:30pm except for 19 Sep, 6 Dec, 21 Mar will end at 10:15pm)

88.  The following access is suggested by the Wife in her proposed draft order:-

The Petitioner do have supervised access to the children as follows:-

(1) On alternate Saturdays from 2:00 pm to 6:00 pm and on alternate Sundays from 10:00 a.m. to 2:00 pm. However, if both children should have activities during the scheduled Saturday or Sunday access, make up access will take place on the other weekend access day as per the ordinary scheduled time for that Saturday or Sunday access;

(2) Subject to confirmation of the children’s after school schedules

(a) On Tuesdays with I from after school to 7:45 pm;

(b) On Tuesdays with S from 5:45 to 7:45 pm;

(c) On Thursdays with S from after school to 7:45 pm;

(d) On Fridays with I from 5:00 pm to 8:30 pm

(e) On Fridays with S from 6:00 pm to 8:30 pm

(3) On Mother’s day from 9:00 am to 6:00 pm;

(4) On the Wife’s birthday if it does not fall on a weekend, then the Wife is to have time from 9:00 am to 6:00 pm on her birthday. If it falls on a weekday, then the Wife is to have time from after school/activities to 8:00 pm depending upon the children’s schedules…;

(5)…

(6) The access to be suspended on Father’s Day

89.  The Wife’s suggestions in relation to access were made before the finalization of the children’s schedules. There was a lot of uncertainty as I is moving up to middle school. It is now evident that some of her suggested access times are untenable because of the children’s activities.

90.  In the light of the children’s schedules, the Husband proposes the following access:-

(1) On alternate Saturdays from 3:30 pm to 6:30 pm and on alternate Sundays from 9:30 am to 12:30 pm. However, if both children should have activities during the scheduled Saturday or Sunday access, access will take place on the other weekend access day as per the ordinary scheduled time for that Saturday or Sunday access;

(2) Weekday access

(a) The Wife and the Husband shall alternate accompanying I to her monthly appointments on Tuesdays at 4:30 pm to 5:30 pm with Dr Pon;

(b) On the Tuesdays when the Wife accompanies I to see Dr Pon, I will meet the Wife at Dr Pon’s clinic at 4:30 pm and access will continue until 7:45 pm;

(c) On any other Tuesdays with both children from 5:45 pm to 7:45 pm;

(d) On Thursdays with S from 5:30 pm to 7:45 pm. The Husband to be responsible for picking S up from his English writing session;

(e) Subject to the parties acknowledging and agreeing to the Wife taking I to Cotillion on Fridays and the Husband to pick I up, access with both children on 3 Fridays each month from 6 pm to 8 pm;  

(3) On Mother’s Day for 3 hours at a time to be agreed;

(4) On the Wife’s birthday, for 3 hours, if it falls on a weekend and if it falls on a weekday, then the Wife would have access from after school and activities until 8 pm, failing which the Wife would have make up access of an additional 3 hours in the first available weekend subject to the children’s schedules;

(5) The Wife’s access to be suspended on Father’s day and the Husband’s birthday.

91.  The Wife’s proposals allows no time for the children to deal with their homework or rest before access. Time for homework may not be that crucial for S as he is still young and does not have that much homework for the time being. However, I has just moved to middle school and has to cope with her homework. Further, I’s day starts at 5:30 am on Tuesdays. She would be very tired if she were unable to have any time afterschool to rest before attending access. It would be much better for I to be able to complete her homework and or rest before access, so that she can relax and enjoy her time with the Wife. Under the Husband’s proposals, I would have time to do her homework on Mondays to Thursdays. Her Friday homework can be done over the weekend when the children have access with the Wife (3 times a month).

92.  It is the Court’s view that for the time being and save for the proposal for access on Friday, the Husband’s proposals for weekday access are in the best interests of the children. The Wife would like to attend Cotillion with I and she was more than welcomed to do so by the Husband. However, if she were to have access with S at the same time, there would be nothing for S to do. Further, S would be attending access after a whole day of school and 2 intellectually demanding activities (Chinese and Maths) and is likely to be very tired. The Wife’s attendance at Cotillion could be treated as her access with I on from 5:30 pm to 7:30 pm. I will be picked up by the Husband at the end of Cotillion. There would be no access for S on that day.

93.  As for weekends, Dr Levy Bandeira has recommended that access should be fixed on either Saturday or Sunday to avoid confusion [P11/3250-3251]. However, the children have a lot of activities such as sports tournaments on Saturdays. Sundays are the only days when the children have a chance to spend some relaxing time with the Husband. It would be preferable if the parties could alternate on the weekends.

94.  The Wife should be encouraged to attend at least some of the children’s regular activities, especially during competitions during the weekends when the children would view the Wife’s attendance as quality time, support and commitment [P11/3250/3251]. There is no dispute that the swimming pool and the sports field are large enough for the parties to attend without any interaction. They can attend as frequently as they wish. To minimize discomfort for the children, the parties are to explain to the children with the assistance of Dr Pon that both parents are happy for the other to attend and that the children are at liberty to interact with either parent. However, if only the Wife is attending these activities, the access must be supervised.

95.  Since access is no longer restricted to the Clubs, supervised access for 4 hours over the weekend is not unreasonable. However, the commencement times suggested by the Husband make more sense as far as the children are concerned. I starts her swimming training on Saturdays at 6 am. She then has a piano lesson until 10 am. If access on Saturdays were to commence at 3:30 pm, I would have time to do her homework for the weekend and take a rest before access. On Sundays, if access takes place from 9:30 am, the children will have a block of free time in the afternoon for them to deal with any outstanding homework or attend social activities.

96.  Since access is still outside the home for the time being, access from 9 am to 6 pm would be too long. If the Wife’s access does not coincide with Mother’s Day, the Wife should have access on Sunday instead of Saturday. There would be 4 hours of access at the times for normal Sunday access. If the Wife’s birthday falls on a weekday, access would commence as usual but will be extended until 8 pm. If the Wife’s birthday falls on a weekend, the normal access times will apply. If the Wife’s birthday falls on a weekend but does not coincide with her day of access (e.g. if the Wife’s access is on Saturday but her birthday falls on a Sunday), the Wife should have access on the day of her birthday instead of the normal access day. On Father’s day, the Wife should have access on Saturday instead of Sunday. If the Husband’s birthday falls on a weekday access day, access that day will be suspended and there will be make up access during one of the long school holidays. If the Husband’s birthday falls on a weekend, access should take place on the day that is not the Husband’s birthday. 

Public Holidays

97.  The Wife proposes that public holidays attached to weekends, not attached to weekends and non-school days should be alternated between the parties and the Wife is to have the 1^st one arising following the date of the Order and the Husband is to have the 2^nd one arising upon the date of the Order and each party alternating thereafter. The suggested times for these days are from 9:00 am to 6:00 pm where the Wife is exercising access only and to seamlessly attach to the weekend when the Wife is exercising staying access and the Husband is not to make any arrangements for the children on the days that will fall with the Wife.

98.  Dr Levy Bandeira recommended that vacations and public holidays can be equally split between the parties as long as the Wife’s time alone with the children is supervised or accompanied by a responsible adult and she can demonstrate a period of sobriety for 3 to 6 months.

99.  The Wife has yet to demonstrate a period of sobriety.   However, there is no reason why she should not have some access during public holidays and non-school days. Since access is still outside the Wife’s home, her proposed access is too long. For the time being, the Wife can have supervised access to both children on alternate public holidays and non-school days for a total of 4 hours at a time to be agreed between the parties.

100.  Under the Wife’s proposals and in the light of the children’s schedule and access schedule, the children would basically have no time to have social activities.

Long Holiday Access

101.  Dr Levy Bandeira recommends that:

(1) Vacations and public holidays can be equally split between the parties as long as the Wife’s time alone with the children is supervised or accompanied by a responsible adult and she can demonstrate a period of sobriety for 3 to 6 months;

(2) If the children travel for sporting tournaments, the Wife can be given the choice of attending as well or have the missed access time made up. This should be done in advance to minimize conflict;

(3) Until the Wife can demonstrate a period of sobriety around the children and adequate supervision can be put in place, holiday access while the children are in Hong Kong should remain much as regular access, although the frequency with which the children can see her can be increased as they will not be in school. For longer breaks, such as the summer, the children can have some input with regard to how often they want to see the Wife while they are in Hong Kong and for how long. This may be best discussed via Dr Pon to ensure that the children can express their desires in an emotionally safe environment [P11/3251].

102.  The Wife asks that the children spend at least 1/3 of their holidays in Hong Kong to enable access. For the time being, she is asking for 4 hours of supervised access per day.  The Husband adopted Dr Levy Bandeira’s suggestion that the children should be consulted on the amount of time they wished to spend with the Wife over the holidays and that there should be supervised access 3 hours per day.

103.  The children have always travelled and attended various holiday camps during their long school holidays. The Courts recognize that travelling and holiday camps do broaden the children’s horizons and are beneficial to them. There is no reason for the children’s lives to come to a stand still pending the Wife’s recovery. However, the Husband agrees that the children should be able to spend part of those holidays with the Wife. The children’s input is important. However, they would be placed in another loyalty bind if they were asked to decide the amount of time they wished to spend with the Wife over the holidays. It would therefore be more appropriate for the Court to make provision for the same.

104.  For the time being, the parties have agreed that:

(1) For the October mid-term break (27 September 2014-5 October 2015), the Wife should have access to the children for 4 hours per day on 27 September 2014 to 29 September 2014 (both days inclusive);

(2) For Thanksgiving (27 November to 28 November 2014), the Wife to have access for 4 hours a day;

(3) Chinese New Year holidays (14 February 2015 to 22 February 2015), the Wife to have access from 20 February 2015 to 22 February 2015 for 4 hours per day.

105.  There is a dispute as to the access dates for Christmas 2014 (19 December 2014 to 4 January 2015, i.e. 17 days). The Wife proposes access from 29 December 2014 to 4 January 2015. The Husband proposes access from 30 December 2014 to 4 January 2015. The Wife’s concedes that she should be entitled to access over at least 1/3 of the long holidays upon demonstration of 3 months continuous sobriety. It is impossible for the Wife to provide such demonstration by Christmas 2014. However, her proposals mean that she would have access well in excess of 1/3 of the Christmas holidays in 2014. The Court will adopt the Husband’s proposals for Christmas. For the reasons set out below and for the time being, the Court will not make provision for access over the long school holidays beyond Chinese New Year 2015.

Social Activities

106.  Dr Levy Bandeira stated that given their respective ages, it is entirely developmentally appropriate for the children to express preference for spending time with their friends or in doing their activities. The children’s own schedules should take precedence over access. However, it would be beneficial for both children if the Wife were able to either accompany them to certain activities or attend sports activities with them. According to both Dr Pon and Dr Levy Bandeira, the maintenance of normal social activities is very important to the children at this stage of their lives [P5/1173; P11/3250-3251].

107.  Dr Pon stated in her report that:

“It is noted that both parents understood and appreciated that the children’s interests are important part of their development and believed that they are benefitting from the extra-curricular activities. Indeed, this is the age when children are making friends, getting involved in sports and joining other after-school activities. Hence for both parents to understand how important these relationships are for their development and to make accommodations and compromise with regards to their access arrangements is important” [ P5/1173].

108.  The Wife has consistently complained that the children’s activities have eroded her access. The children would inevitably be invited to social activities (such as playdates and parties) by their friends. They should be able to continue a normal life even if their parents are divorced. However, there is no provision for the children to have any time for social activities at all in the proposed access schedule. For the avoidance of doubt, there are no restrictions which prevent the arrangement of any such activities during access. The Wife should accompany the children at these activities as part of her supervised access. This is in line with the advice of both Dr Pon and Dr Levy Bandeira and would be regarded by the children as “family activity”. However, the Wife should be notified at least 24 hours in advance. If only one of the children has a social activity and the Wife chooses not to attend, she may proceed with supervised access of the child who has no activity. There will be no makeup access.

Telephone Access

109.  Dr Levy Bandeira recommends daily telephone access between the Wife and the children. However, she stated that this access should be in the evenings rather than the mornings to prevent additional stress resulting from time constraints during the morning routine before school. The Wife should also understand that as the children get older, they may not desire to speak to her on a daily basis. This is not an indication of whether they miss or love her, simply a reflection of a normal developmental stage. It would not be practical to insist that actual telephone calls take place daily. Further, it is the Wife’s responsibility to contact the children for telephone access. Although the children may be permitted to contact the Wife, facilitation of telephone access should fall on the Wife and not the children. If they are unavailable or unwilling to speak to the Wife, they can either choose to call her back later or contact her the following day. Given that both children have their own mobile telephones and free access to them, the Wife should contact the children through that channel, rather than involve the Husband. [P11/3252].

110.  Dr Levy Bandeira’s recommendations are eminently sensible and are endorsed by the Court.

Overseas Sporting Tournaments

111.  The children are outstanding sportsmen and travel regularly to attend international sports tournaments. Dr Levy Bandeira recommends that if the children travel for sporting tournaments, the Wife can be given the choice of attending as well or have the missed access time made up. This should be done in advance to minimize conflict.

112.  There can be no dispute that the parents’ attendance at these tournaments would be regarded by the children as support and commitment.  However, at the moment, access must be supervised by a third party other than the Husband. It would be impossible for the Wife to arrange for and take the Husband’s helper with her on these trips. It would also be inappropriate to ask the sports coaches to provide the supervision.

113.  If only one child is attending an overseas tournament, the Wife should proceed with normal supervised access with the child in Hong Kong. If both children are away on sporting tournaments, make up access will be arranged with the assistance of the Parenting Coordinator.

The Wife’s Undertakings

114.  There is no dispute that the Wife should continue her Undertaking given to the Court and the Husband on 22 February 2013 that she will not personally drive the children when she has access with him. The Wife must also continue paragraph (1) of her Undertaking to the Court and the Husband given on 15 March 2013 that she will refrain from taking alcohol from the morning access is to start and for the remainder of the entire access period with the children.

115.  Since access is going to be supervised by the Husband’s helper, the Wife would be released from her Undertaking given on 15 March 2014 to have access supervised by her helper.

Sessions with Dr Pon

116.  There is no dispute that the breakdown of the marriage and the acrimony in these proceedings has had an effect on the children. They have been seeing Dr Pon since April 2012.  In October 2012, the Wife alleged that there has been no improvement after treatment with Dr Pon and their appointments with her are eating into her access time [P4, 864].

117.  It is now agreed that it is important that both children to continue regular sessions with Dr Pon to ensure that they are adequately supported and any future issues can be immediately addressed. The frequency of the sessions should be determined by Dr Pon.

118.  Dr Levy Bandeira also recommended that Dr Pon guide both parents in how to address the issue of the Wife’s alcohol use with S so that any misconceptions or fears can be put to rest or appropriately addressed.

Parenting Coordinator

119.  Dr Levy Bandeira recommends the appointment of a Parenting Coordinator who can help resolve disputes regarding various matters (including access, the issues of I’s dog etc) to save cost as an alternative to utilizing lawyers to communicate constantly. However, she stated that this would only be effective if the Coordinator were jointly appointed, is given the power to be a tie-breaker when the parties cannot agree and both parents commit to using the coordinator for a certain period of time [P11/3252].

120.  The parties have agreed to appoint such a coordinator.

The Wife’s Treatments

121.  According to Dr Levy Bandeira, the Wife suffers from visible anxiety that is debilitating for her and interfere with her general functioning, her ability to self regulate and likely, her ability to adequately control her own drinking. It is essential that she seek psychiatric treatment that can effectively manage her anxiety to be accompanied by regular psychotherapy, so that she can learn better stress management [P11/3253]. Both Dr Ng and Dr Levy Bandeira agree that it is unlikely that the current situation will improve unless she is fully treated [P11/3253, 3274]. Apart from dealing with her alcohol problem, it would be in the best interest of the children for the Wife to attend the recommended treatments regularly.

Future Variation of Access

122.  There is no dispute that access should be varied as the Wife progresses with her recovery. There was a dispute as to the venue of initial access but the parties are basically in agreement in relation to the milestone events which would warrant a variation of access.

123.  The Wife’s suggestion is that:

(1) the defined supervised access should progress to defined supervised staying access upon demonstration of 3 months of continuous sobriety;

(2) There should be equal sharing of long school holidays upon demonstration of 3 months of continuous sobriety; and

(3) There should be unsupervised access upon demonstration of 9 months of continuous sobriety.

124.  The Husband suggests that:

(1) There should be supervised access within the Wife’s home upon demonstration of 3 months of continuous sobriety;

(2) Supervised staying access to commence upon demonstration of 6 months of continuous sobriety; and

(3) The Wife to share long holidays equally upon demonstration of 6 months of continuous sobriety.

125.  As explained above, the Court has to consider all the circumstances surrounding the children when it is faced with an application for variation. The viability of the suggested progression for variation of access would very much depend upon the progress of the Wife’s recovery. If she can demonstrate 3 months of continuous sobriety, makes progress with her various treatments and show improvement in co-parenting within a matter of months, there should not be any drastic changes to the circumstances surrounding the children. However, the Court understands that the road to recovery would be a trying one. In the light of the previous history, the ongoing acrimonious ancillary relief proceedings and risk of relapse (especially during the initial stages), it is very unlikely that the Wife would be able to demonstrate 3 months of continuous sobriety in the very near future. The Court would not adopt any of the proposals for variation for the time being. Instead, the Court will supervise this case for an initial period of 18 months with the assistance of progress reports from the Social Welfare Officer and updated reports from Dr Pon.

Orders

126.  I make the following orders:

UPON hearing Counsel for the Petitioner and Counsel for the Respondent in respect of the care arrangements for the children of the family:-

A. AND UPON the Respondent undertaking to the Court and to the Petitioner that he will discuss with and consider the views of the Petitioner on significant decisions as well as any change of circumstances relating to the upbringing of the children referred to in paragraph 1 of the Order herein, including education, medical treatment, religion, extra-curricular studies and activities;

B. AND UPON the Respondent undertaking to the Petitioner and the Court to include the Petitioner’s name on all school enrolments, activity and tuition enrolments as a contact parent and as one of the emergency contacts in respect of the children;

C. AND UPON the Petitioner acknowledging and confirming that the Respondent will be informing the Hong Kong International School and all relevant authorities of the terms of this Order;

D. AND UPON the Respondent undertaking to the Petitioner and to the Court that he will request the Petitioner’s name to be added to all email distribution lists for the children’s school activities, tuition and school events;

E. AND UPON the Respondent undertaking to the Petitioner and the Court that he will:

(i) Inform the Petitioner within 48 hours of being notified of any sporting events that the children may be participating in outside of Hong Kong;

(ii) Provide 14 days advance notice if the children will be attending the sporting events outside of Hong Kong; and

(iii) He will provide 14 days advance notice of the location and travelling dates in respect of the sporting event.

F. AND UPON the Respondent undertaking to the Petitioner and to the Court that he will provide the Petitioner with no later than 14 days advance notice of all overseas holidays with the children including the provision of their destination and travelling dates within the agreed holiday time;

G. AND UPON the Respondent undertaking to the Petitioner and to the Court that he will return the children to Hong Kong upon completion of overseas holidays, overseas sporting events and holiday camps and/or immediately when called upon to do so by the Court;

H. AND UPON the Petitioner acknowledging and agreeing that the children do continue their existing extra-curricular activities and tuition;

I. AND UPON the Petitioner undertaking to the Respondent and to the Court that she will seek and attend regular psychiatric help from Dr Daisy Luk and psychotherapy as advised;

J. AND UPON the Petitioner undertaking to the Respondent and to the Court that she will use her best endeavors to achieve sobriety (total abstinence) from alcohol;

K. AND UPON the Petitioner continuing her undertaking to the Respondent and to the Court given on 22 February 2013 that she will not personally drive the children at any time;

L. AND UPON the Petitioner continuing paragraph (1) of her undertaking to the Respondent and to the Court given on 15 March 2013 that she will refrain from taking any alcohol from the morning access is to start and for the remainder of the entire access period with the children;

M. AND UPON the Petitioner undertaking to the Respondent and to the Court that the Respondent’s helper or a 3rd party other than the Respondent will continue accompanying the children during access as provided for in paragraph 3 of the Order below until further order;

N. AND UPON the Petitioner and the Respondent acknowledging and agreeing that there be a review of the custody arrangements in respect of the children by the Court upon the Petitioner demonstrating a period of 12 months continuous sobriety, together with management of her psychiatric condition and completion of a parenting course but subject to reassessment and recommendation by Dr Stephen Ng and Dr Levy Bandeira;

O. AND UPON the Petitioner and the Respondent acknowledging and agreeing to the appointment of a Parenting Coordinator to be nominated by Dr Levy Bandeira and such Coordinator will assist the Petitioner and the Respondent in respect of any dispute as to the arrangements for access and holidays;

P. AND UPON the Petitioner and the Respondent acknowledging and agreeing that they will each use their best endeavors to be cordial and polite to the other parent in the presence of the children and that they will not be disrespectful of the other parent in the presence of the children;

Q. AND UPON the Petitioner acknowledging and agreeing that the children are not obliged to receive every telephone call from her;

It is Ordered that:-

1. Sole custody of the children of the family, namely, I, a girl born on 1 April 2003 and S, a boy born on 22 February 2005 (the children) be granted to the Respondent.

2. The Respondent do have sole care and control of the children of the family and that the children’s passports are to be kept by the Respondent.

3. Subject to paragraphs 4 to 10 below, the Petitioner do have access to the children as follows:-

(1) On alternate Saturdays from 3:30 pm to 7:30 pm and on alternate Sundays from 9:30 am to 1:30 pm;

(2) On Tuesdays with I from 4 pm to 7:45 pm;

(3) On Tuesdays with S from 5:45 pm to 7:45 pm;

(4) On Thursdays with S from 6 pm to 7:45 pm;

(5) On Fridays, with I from 5:30 to 7:30 pm;

(6) On Mother’s Day, weekend access shall be on Sunday at the usual access time;

(7) There shall be access on the Petitioner’s birthday. If the Petitioner’s birthday falls on a weekday, the Petitioner shall have access from the end of school and activities until 8 pm, failing which, the Petitioner shall have 3 hours of make-up access at a time to be arranged with the assistance of the Parenting Coordinator. If the Petitioner’s birthday falls on a weekend, the Petitioner shall have weekend access on the day of her birthday;

(8) On Father’s Day, weekend access shall take place on Saturday.

(9) Access shall be suspended if the Respondent’s birthday falls on a weekday access day. If the Respondent’s birthday falls on a weekend, access shall take place on the day that is not the Respondent’s birthday.

(10) The Petitioner shall have the following access during the children’s holidays:

4. The Petitioner shall prove her continuous sobriety (complete abstinence) by undergoing a regime of random blood tests for alcohol with Dr Daisy Luk. The blood tests results would only be accepted by the Court if it is conducted under the following protocol:

(a) Blood samples shall be drawn by a nurse or Dr Luk at Dr Luk’s clinic, namely The Central Practice located at Unit 1801, Hing Wai Building, 36 Queen’s Road Cenral, Hong Kong;

(b) Blood samples shall be sent to a reputable medical laboratory nominated by Dr Luk for testing on the same day;

(c) The monthly schedule of the blood tests will be decided by Dr Luk and shall not be disclosed to the Petitioner;

(d) The frequency and time of the blood tests will be decided by Dr Luk, bearing in mind the requirement of sobriety;

(e) Requests for random blood tests shall be made by telephone call AND Whatsapp or SMS;

(f) If the Petitioner does not attend Dr Luk’s clinic within 3 hours of the first Whatsapp or SMS, she shall be deemed to be in default;

(g) A Log Book shall be kept at the clinic to record the date and times of each call/Whatsapp/SMS, the time that the Petitioner returned the call, the time of blood sample collection and the result of each test;

(h) The Petitioner shall file with the Court and serve on the Respondent a copy of a monthly report from Dr Luk together with a copy of her monthly test results (including a copy of Dr Luk’s Log Book) on the 7^th  day of each month;

(i) The Petitioner shall give the Respondent written notice (by email) within 24 hours in the event that she fails any of the blood tests or in the event of any default.

5. The Petitioner shall attend regular psychiatric treatment with Dr Daisy Luk and psychotherapy with a psychotherapist to be recommended by Dr Pon or Dr Levy Bandeira.

6. Until further order, the Petitioner shall have access in any venue EXCEPT the Petitioner’s home.

7. Until further order, the Petitioner’s access shall be supervised by the Respondent’s helper or a third party nominated by the Respondent BUT not the Respondent;

8. The Petitioner shall complete a parenting course to be recommended by either Dr Pon or Dr Levy Bandeira within 3 months from the date of this Order.

9. The children shall be taken to and picked up from all their activities by the Respondent or a 3rd party nominated by him.

10. The Petitioner and the Respondent shall alternate in accompanying I at her monthly appointments with Dr Alicia Pon once a month on Tuesdays from 4:30 pm to 5:30 pm.

11. Interim access order dated 18 November 2013 be discharged forthwith.

12. Present access order to take effect upon Petitioner producing written confirmation from Dr Luk that the random blood tests has commenced.

13. Subject to Recitals E to G above, the Respondent do have general leave to remove the children out of the jurisdiction for holidays, holiday camps and sporting events.

14. Whilst the children are out of the jurisdiction, the Petitioner do have telephone/Skype access with the children twice a week, with the arrangements to be made with the assistance of the Parenting Coordinator in the absence of agreement. The children are at liberty to telephone/Skype with the Petitioner at any other time should the children wish to do so and the Respondent shall facilitate the telephone/Skype calls;

15. The Petitioner do have telephone access to the children at 7:30 pm in the evenings or at such other time to be agreed between the parties, such calls to be initiated by the Petitioner. In the event that the children are unable to answer the call or speak to the Petitioner, telephone access will be deferred to the following day.

16. The Petitioner be released from her undertaking given on 15 March 2013 for Evelyn Cabanan to accompany the children during access.

17. Access shall be supervised by the Court for an initial period of 18 months.

18. Liberty to apply.

19. There shall be a progress hearing in this Court at 9:30a.m. on 16 January 2015. A progress report from the Social Welfare Officer shall be filed at least 14 days before that hearing.

20. The Petitioner and the Respondent shall file an updated report from Dr Pon in relation to the children at least 7 days before the progress hearing. The costs of the report to be borne initially by the both parties equally.

21. Costs reserved.