TPL v. WYY formerly known as WYY

FCMC 15332 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 15332 OF 2011

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J U D G M E N T
(Custody)

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1. This is a trial concerning custody of 2 young children of the family (“the Children”), a boy who is born on 21 July 2006 now aged 6 (“the Son”) and a girl who is born on 4 August 2010 now aged 2 (“the Daughter”).

Background

2. The Petitioner (“the Mother”) is born in 1977 now aged 35. The Respondent (“the Father”) is born in 1974 now aged 38. The parties got married in Hong Kong in 2000.  The Mother left the matrimonial home in Tseung Kwan O (“the Matrimonial Home”) with the Children since August 2010 and commenced the Petition for divorce under FCMC 15519/2010 in November 2010.  Pursuant to the Order dated 6 September 2011, such proceedings were stayed and the Mother commenced a fresh Petition for divorce under the present proceedings based on 1 year separation with consent of the Father in November 2011.

3. The Children are currently residing with the Mother whereby the interim defined access is granted to the Father as follows:

a.  Every Saturday 4pm to 6pm access to the Children; and

b.  Every Sunday 1pm to 8pm access to the Son without the presence of the Mother (“the Sunday access”).

4. The parties have been generally following the above access arrangements. However, for the Sunday access, it was difficult to persuade the Son to spend time with the Father alone without the presence of the Mother.  This Court has made an Order on 16 May 2011 that the Mother’s immediate family members shall not be present in the Sunday access.

5. At the Pre-trial Review on 16 March 2012, both parties undertook to the Court to participate in the co-parenting programs suggested by the Social Welfare Department before the trial.  However, only the Mother but not the Father did attend and complete a course of such program before the trial.

6. Initially, both parties took the view that their communication has broken down and lack of trust between them results in the parties not seeking joint custody. At the beginning of the trial, both parties were seeking sole custody of the Children but subsequently, the Father changed his stance to seek joint custody with care and control to him. The parties further agreed to give undertaking to continue to attend co-parenting courses and to continue the psychological treatment for the Son through the service of Dr. Alicia Pon.

7. It is not disputed that the Children are close to each other and the sibling relationship is very good. Neither party accepts or proposes split custody, care and control. Hence, I do not have to consider this option.  In relation to access, the parties agreed that non-custodian parent ought to be given generous access including staying access. At the trial, the following witnesses had testified in sequence:

i.  the social work officer Ms WONG Mei-kuen Tina (“Ms Wong”);

ii.  the Mother;

iii.  the Father; and

iv.  the paternal grandmother (“Madam Chong”).

Father’s case

8. The Father reconfirmed his stance in seeking for joint custody in his oral evidence at the trial and asked for care and control of the Children.

9. He submits that the Mother has demonstrated the intent to alienate him away from the Children. She had been coaching the Children. Alternatively, the Mother had been reckless by failing to make sufficient and appropriate efforts to the bonding of the Father and the Children, the Son in particular, causing the result of alienation between the Father and the Children.  He submits that to grant care and control of the Children to the Mother at this stage would only aggravate the situation and put the interests of the Children at a greater risk.

10. He submits that the Mother’s lack of ability to realize her own actions or inactions has in fact contributed to the Son’s present psychological issues and that the Mother’s ignorance (or wilful blindness) are causing and costing the Son to suffer.

11. For the Sunday access, the Father said that the Mother and her family members were coaching the Son in order to make it difficult for the Father to spend individual time with the Son. The constant presence of the Mother’s elder brother (“Man”) and the way he intruded the proximity of the Father and the Son during access could and would make the Son feel the tension and anxiety surrounding the Sunday access, which in turn would cause the Son to feel uncomfortable about the Sunday access.  Furthermore, Man was obstructing the Father’s access. The Mother’s family and her own hostility towards the Father have resulted in a negative impact on the Son’s psychological issue.

12. It is the Father’s case that the Son had been coached into believing the Matrimonial Home is an evil place and once he goes, he would not be able to see the Mother.

13. The Father accepted that a transitional period is needed as presently the Son still resists spending individual time with him. He conceded he needs to work full time and would need to rely upon his own family members in the daily caring of the Children. His family members include his mother, his younger brother and sister-in-law whom live close by, and his current girlfriend (“the Father’s girlfriend”). He further conceded that she is now pregnant and is expected to give birth in September 2012.

Mother’s case

14. The Mother is seeking sole custody, care and control of the Children.

15. She is a full-time mother taking care of the Children on daily basis with the assistance of the maternal grandparents. They are now residing under the same roof with the maternal grandparents and other maternal family members. This pattern has been established from about August 2010 since the Mother left the Matrimonial Home with the Children. She submits that no particular reason has been demonstrated as to why the status quo shall be disturbed.

16. She denies the Father’s accusation of coaching the Son or alienation of the father-and-son relationship.

The Law

17. To start with, I set out below the relevant statutes and legal principles which I shall bear in mind. 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;

(b)  …

18. 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 is amended and comes into operation on 13 April 2012.  The word “welfare” in Section 3(1)(a)(i) is repealed and substituted by “best interests” and the word “wishes” in Section 3(1)(a)(i)(A) is repealed and substituted by “views”. The new section 3 now provides that the court:

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to – 

(A)  the 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… (emphasis added)

19. 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 may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap.192).

20. There is no corresponding legislative amendment to the said Section 48C.  According to Rayden and Jackson on Divorce and Family Matters^[1], 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.

21. 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 set out 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 to the child, and to the responsibilities of  parenthood, demonstrated by each of the child’s parents

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

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

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

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

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

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

22. Some of the matters mentioned in the checklist will be discussed below but some not since not all of them are applicable in this case.  Besides, I consider it will not be necessary for this Court to resolve each and every issue in dispute, especially some of which are insignificant.

Social Welfare Investigation Reports

23. I shall first consider the 2 investigation reports dated 23 August 2011 and 13 July 2012 both prepared by the Social Welfare Officer, Ms Wong.  She said in the reports that the communication between the parties was not smooth and they were in lack of trust. Hence, joint custody is not proposed. She takes the view that the Son shall not be removed drastically from his present living environment but be provided with opportunities for more and longer individual contact with the Father.  She thus recommends that sole custody, care and control of the Children be granted to the Mother with defined access to the Father.

24. Ms. Wong also testified in the Court that she did not find the Mother has coached the Son at all. Also, she finds that the Son in fact has no hatred against the Father, but only fears to go alone with the Father. On the other hand, from Ms. Wong’s observations, the Mother had paid efforts to encourage him to follow the Father during the Sunday access.

25. Ms. Wong also confirmed that the Son’s attitude towards the Father has been improved over the past few months, in particular, for Wednesday and Saturday accesses but he still fears to go with the Father during the Sunday access since he feels uncertain and anxious as to whether he would see the Mother again if he follows the Father to go.

Dr. Levy’s Reports

26. Pursuant to the Order dated 16 May 2011, the Son be assessed by the child psychologist, Dr. Lynette Levy (“Dr. Levy”) and a report prepared by her be filed with the Court.  Dr. Levy’s 1st Psychological Assessment Report on the Boy was filed on 14^th June 2011 (“1st Psychological Assessment Report”), which was not challenged and admitted by the parties as her evidence for trial.  Dr. Levy was originally planned to be called to testify. At the trial, it was agreed by the parties that Dr. Levy’s attendance to give evidence in Court is not necessary but further questions will be put to her in writing and she would be requested to prepare a supplemental psychological report. Dr. Levy has accordingly prepared a Supplemental Psychological Report dated 21^st August 2012 (mistakenly dated 25^th August 2012) (“Supplemental Psychological Report”) which was also admitted by the parties as part of her evidence for trial.  

27. In the 1st Psychological Assessment Report, Dr. Levy observed and stated that:

[The Son] expressed the belief that his mother does not like his father, and quickly volunteered that he also does not like his father. However, he indicated that he does not know whether his father likes his mother as “he didn’t say”.

28. She further made the opinion relating to custody and access as follows:-

...[The Son] has had continual contact and care from [the Mother] throughout his life, and his primary bond is with her. Therefore, to transfer custody, care and control away from [the Mother] at this time will likely be detrimental to [the Son]’s continual emotional well-being, and is not recommended at this time...

[The Son]'s levels of distress and anxiety surrounding access do not appear to directly related to fear of [the Father]. In fact, when they interact, it is often positive and [the Son] is happy and enthusiastic. Instead, it is likely that [the Son]'s anxiety levels are grounded in his separation anxiety and fear that if he attends access with his father, he will not be able to return to his mother. The origins of this fear are currently unclear, although it may be impacted by several factors, including [the Son]'s on anxious personality, comments made by various relatives, [the Son]'s own immature grasp of the parameters of access, or even subtle, nonverbal cues that he may pick up on from [the Mother] during the recent access visits. This is further compounded by observations made by the undersigned during the assessment that some inappropriate comments regarding the family situation and [the Father] appear to have been made by [the Mother] to [the Son], who volunteered information that appeared to be the result of some adult input or coaching. (emphasis added)

29. Dr Levy made 17 recommendations in the 1st Psychological Assessment Report, such as no change for Saturday access, additional weekday but shorter access, temporarily shortening Sunday access, no paternal or maternal relatives shall attend Sunday access, etc.

30. In the Supplemental Psychological Report, Dr Levy made very general comments from the psychological viewas to the issue of custody, care and control as follows:

“If the mother is indeed found to be coaching [the Son] and making derogatory comments about the father and paternal relatives, I would be gravely concerned about the future success of access. In order for [the Son] to have a healthy relationship with his father, the opportunity must be provided for that relationship to be built individually (without the constant presence of [the Mother]). If [the Son] is being coached and feels negatively toward [the Father] and his family due to coaching, then any attempts at solidifying that father/child relationship will be undermined and must fail. This will be detrimental to the child in the long run.

In determining custody, the general psychological view is that the custodial parent’s ability and willingness to promote and facilitate a successful parent/child relationship between the child and the other party must be taken into account. This is because this is the parent that is deemed most likely to preserve for the child the bond with both parents, which is essential to healthy emotional growth and development. A parent who does not promote a healthy relationship between the child and the other party deprives a child of a fundamental right and relationship. There is much research that discusses the importance of a father/child relationship and the impact it has on the child’s development growth.

From another perspective, coaching a child teaches that child to be disrespectful towards family members, devalue foundational relationships, and sends a negative message to the child in general. The child is placed in a position of constantly having to monitor their true feelings so as not to disappoint the coaching parent, and causes a fundamental loyalty conflict.

However, these are very general comments as the issue of custody, care and control is a very complicated one and cannot be adequately addressed without further interview and assessment. It must also take into account the child’s bond with the mother, his maternal relatives, his sister, and the stability of his current environment.”

31. Dr. Levy further explains in the Supplemental Psychological Report that parental alienation is a very complicated concept that is not yet well understood by even the professional psychological community. No definition of alienation is given by her.

Discussion

32. The first issue is whether the Court shall grant sole or joint custody to the party. As said by Hartman JA in PD v KWW^[2] the difference between sole and joint custody is often found to be a thin one. In normal circumstances, joint custody ought to be encouraged in every case and only when there exist factors (e.g. hostile parental conflicts, abusive parents, violence etc.) impeding joint custody that the Court ought to consider sole custody to a party.

33. The Court is entitled to presume the loving parents to be able to co-operate with each concerning matters of importance in the upbringing of the children. Hartman JA further said in PD v KWW as follows:

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

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

34. I have no doubt to find that both parties are good and loving parents. As observed by Ms Wong and I agree that they both made best efforts to perform their parental roles. Therefore, I am entitled to proceed on the presumption that the parties can co-operate.

35. It is not disputed that the Mother has kept the Father informed of the matters relating to the Children, including the choosing of primary school for the Son and the relevant seminars for parents. This is evidence of co-operation. Besides, the fact that the parties have agreed the Son to continue the psychological treatment under Dr. Alicia Pon and they have given undertaking to the Court to engage in co-parenting courses further shows that they can co-operate. I believe that after both parties have completed the co-parenting courses, they will know much better to co-operate with each other concerning matters of upbringing and welfare of the Children.

36. In the best interest of the Children, I shall grant the order of joint custody to the parties.

37. Regarding the care and control of the Children, I shall consider the matters stated in the above-mentioned checklist, some of which will be discussed below but not all of them.

Ascertainable wishes and feelings of the Children

38. According to the Social Welfare Investigation Reports prepared by Ms Wong, theSon told her that he loved the Mother and the Daughter and wanted to live with them continuously.  Owing to the tender age of the Daughter, she could not give her view. From the direct observations by Ms Wong during access, the Son has reduced the negative reactions to the Father and the father-son relationship has gradually improved.

39. In my judgment, although the Son is only 6 years old, it cannot be disputed that he shows very strong attachment with the Mother and he wishes to live with the Mother. It is easily explainable and understandable because since his birth, he is never separated from the Mother who is his primary carer.

Children’s physical, emotional and educational needs

40. According to the Social Welfare Investigation Reports, Ms Wong stated the Son’s performance in language and mathematics in school is excellent and his performance in physical and social development is satisfactory. The parties have agreed and Ms Wong also recommends the Son to continue the psychological treatment. Ms Wong described the Daughter as a healthy and lovely girl. Her length and weight are above average with normal growth and development.  It shows that the Mother is competent and capable to carry out the daily care to the Children.  As a whole, I am satisfied that the Mother can fulfil the Children’s physical, emotional and educational needs.

Nature of the relationship of the Children with each of the Children’s parents and with other persons

41. According to the social investigation report dated 13 July 2012, Ms Wong said that the Son told her secretly that he hated the Father because he always made him unhappy.  Nevertheless, she indeed observed that their relationship was positive and harmonious.

42. In my judgment, the Son has no real hatred to the Father. However, when comparing with the Mother who is all along the main carer of the Son with the assistance of the maternal grandparents. I have no doubt to find that the mother-son relationship is better than that of the father-son.

43. The Father conceded that he has to work on a full-time basis and to travel outside Hong Kong occasionally about twice a year. He therefore has to entrust the paternal grandmother Madam Chong to look after the Children if care and control are granted to the Father.

44. Madam Chong testified in the Court that she was willing to help the Father in taking care of the Children but conceded that she was not well informed of the Father’s plans regarding daily arrangements.  She considers the possibility of hiring 1 or even 2 domestic helpers at home, if necessary.

45. In my view, the paternal grandmother and domestic helper can never substitute the role of the mother in taking care of the small children.  It is always said that the Court is accustomed to hold the belief that children of tender age are better suited to be taken care of by the mother.  In H v H^[3], Salmon LJ said that:

I think there is no doubt- and this is not a proposition of law- that from the point of view of common sense and ordinary humanity, all thing being equal, the best place for any small child is with its mother.

46. Upon analysing several Court of Appeal authorities, Judge Melloy said in MG v LHH^[4] as follows:

16.   It is generally considered to be in the best interests of a child to be cared for by a natural parent.  The role of the mother is considered to be of particular importance in the lives of very small children, especially where she is able to fulfill the role of a full time parent.  This is so even where there are other very devoted and caring members of the extended family who are equally capable of fulfilling that role.

17.  The status quo of children is important, but will nevertheless need to be assessed on a case-by-case basis, depending on individual circumstances.  Status quo will be more important in some cases than others.

(See L v C CACV333 of 2007, Aslam v Ali CACV 144 of 2003 and P v P CA 256 of 1996).

47. Another important matter, I think, is that the Father testified in the Court that the Father’s girlfriend who is pregnant and due to deliver in about September this year will take part in looking after the Children since she and the new born baby will reside with the Father in the Matrimonial Home. He had acknowledged that he had not told Ms Wong about the pregnancy of the Father’s girlfriend at all and therefore, this piece of fact has not been mentioned in the updated social welfare report. Moreover, from the updated social welfare report, it does not appear that Ms. Wong knows that the Father’s girlfriend is in fact living or going to live with him. In my judgment, the Father completely deprived Ms. Wong (who is regarded as ears and eyes of the Court) of the opportunity to assess the role to be played by the Father’s girlfriend in relation to the Children.

48. I refuse to accept the Father’s excuse that he had just forgotten to tell Ms. Wong. In view of the great importance of this matter, this excuse entirely flies in the face of any commonsense. Upon cross-examination by the Mother’s Counsel, he acknowledged that Ms. Wong had interviewed him for around an hour. However, Ms Wong could only briefly mention in para 7 of her updated investigation report that the Father told her that he had an intimate girlfriend ie the Father’s girlfriend but had no plan for marriage yet.  It clearly shows that the Father’s evidence in this regard is misleading and totally unbelievable. I am of the view that his dishonesty in this material aspect has greatly and adversely affected the welfare of the Children.

49. I also consider that the Father has not only deprived the Mother, but more importantly the Court, of the opportunity of canvassing with Ms Wong in relation to the possible impact of the baby to be delivered on the custody, care and control issues in relation to the Children. He did not bother to ask the Father’s girlfriend to file an affirmation or to attend the trial to tell the Court how she will participate in looking after the baby and the Children at the same time. The Mother’s Counsel has no chance to cross examine her at the trial.  Furthermore, upon cross-examination, he did not appear to have any idea as to how he would tell the Children that he was going to have a younger brother/sister but of a different mother. However, the Father does not appear to have any idea at all as to how he will assist the Children to know and get along with these unfamiliar members of his family, i.e. the Father’s girlfriend and the baby, in the future if he is granted care and control of the Children.

50. I consider that the Court is in total darkness regarding the relationship between the Father’s girlfriend and the Children. The welfare of the Children will be in real risk if they are going to live with someone whom the Court has no idea at all.

Likely effect on the Children of any change in the Children’s circumstances

51. I accept that the present status quo with the Mother has been established for quite a long time. On the other hand, the Father’s access to the Son has not been smooth and no staying access has ever been exercised by the Father to the Children.

52. Ms Wong recommended in her investigation reports that the Son should not be removed drastically from his present living environment. Similarly, Dr Levy commented that to transfer custody, care and control away from the Mother will likely be detrimental to the Son’s continual emotional well-being. I can see no reason to reject their opinion. In the circumstances, I consider that it is undesirable to make any significant change in the daily life of the Children.

Any other fact or circumstance that the court thinks is relevant

53. One of the main accusations of the Father is that the Mother has demonstrated the intent to alienate him away from the Children in particular, the Son and she had been coaching the Children.  The events where the Father considers the Mother alienating him from the Children are as follows:-

(a)  Chinese New Year (“CNY”) 2011;

(b)  APM Incident;

(c)  Initial access in March 2011;

(d)  Dragonboat Race 2011.

54. The Father said that he was eager to meet the Children during CNY and that the parties finally agreed the Father’s access to see the Children on 4 February 2011 (2^nd day of CNY) at 10a.m. The Father waited till 11a.m. but the Mother said that the Son was not willing to get changed of clothes and that the Daughter was sleeping. In the end he was unable to meet the Children over CNY of 2011.

55. Regarding APM Incident which happened on 27 February 2011, the Mother’s sister (“Carol”) saw the Father and a female friend (who is confirmed to be the Father’s girlfriend) earlier at the APM shopping mall.  Then the Mother and the Son met the Father and the Father’s girlfriend near the cinema in the APM later. Then the Father asked the Father’s girlfriend to leave while he restrained the Mother from the back and police was summoned. The Son witnessed the whole incident.

56. Concerning initial access in March 2011, video clips of 2 Sunday accesses, namely on 20 March and 27 March 2011 were played at the trial. According to the video clip, it is not disputed that Carol was heard to coach the Son to shout “Help, Help!” and he did immediately follow and shout. Another clip shows that Man was always in close proximity shooting a video with his sunglasses video recorder; whereas Carol was seen holding another recording device throughout also in close proximity to the Son.  However, the Father did not deny that Jacob, his younger brother, also took video on various occasions during access in March 2012.

57. With regard to Dragonboat Race 2011, the Father simply relied on the correspondence between the parties’ solicitors on this issue and accused that the Mother influenced or coached the Son not to go with the Father to see the Dragonboat match. On the other hand, the Mother replied through her solicitors by letter that she in fact tried to encourage the Son to go.  The parties did not elaborate this issue further in their testimonies at the trial.

58. To start with, Ms Wong said in her investigation reports that she did not agree any alienation or coaching on the part of the Mother according to her observation. I see no reason not to accept her evidence in this regard.

59. Besides, I consider it difficult, if not possible, for this Court to make the finding as to whether the above incidents should be regarded or classified as alienation of the father-son relationship by the Mother since no definition of alienation is indeed given by Dr Levy.  As she mentioned in her reports, this complicated concept is not yet well understood by even the professional psychological community.  I agree that the Mother can do more or better to promote the bonding between the Father and Son.  However, I find insufficient evidence to prove that she actively did something to coach the Son or damage the father-son relationship. In the Mother’s oral evidence at the trial, she did acknowledge that she had done something wrong before Dr. Levy’s report, e.g. the video-taping of the access. However, she also acknowledged that she had learned from Dr. Levy’s report, she had refrained from doing the things which, according to Dr. Levy, are inappropriate for the Son. 

60. The Mother also conceded that she had committed some other mistakes, e.g. changing the name and school of the Son without informing the Father in advance. She frankly admitted that when she did so, she did not appreciate the serious consequence of it.  She further acknowledged in the witness box that she had learned a lesson and no similar mistakes have actually been committed by her recently.  I find that the Mother’s answers are genuine and I accept her explanation in this regard.

61. At the initial stage of the divorce proceedings in about 2011, I agree that the Mother had not made sufficient efforts to maintain the bonding of the Father and the Children.  However, the fact that she had attended the co-parenting programs and further undertook to the Court to attend such programs clearly shows that she now realizes that importance of the bonding of the Father and the Children.  This Court has to accept that no parent in the world is perfect and that no matter how capable or competent he or she may be, he or she will make mistakes.  The most important is that the Mother will try her best endeavour to avoid the similar mistakes in the future. I believe that the Mother will do so.

62. As to the Son’s anxiety, Dr Levy stated in the 1st Psychological Assessment Report that it is likely due to his fear that if he attends access with the Father, he will not be able to return to the Mother. Dr Levy further explained that the origin of his fear is unclear although it may be impacted by several factors, including the Son’s own anxious personality etc.  Hence, Dr Levy cannot conclude that the Son’s anxiety is due to the alleged alienation by the Mother.  I believe that if the Son can continue to receive proper psychological treatment from Dr Alicia Pon, the situation will be improved very soon. In any event, I am of the view that it is not justifiable for the Father to put all the blame on the Mother.  

63. After all, alienation is just one of the many factors which this Court has to consider in the custody application.  In R v Y[5], the Court of Appeal overturned the decision made by Deputy Judge KW Wong (as he then was) who found the alienation of the father-son by the mother and granted the sole custody to the father. Rogers VP in allowing the mother’s appeal said in the judgment as follows:

35. In coming to the conclusion that the children AK’s distinct preference for being with her mother and her reluctance to be with her father was the result of the respondent’s deliberate attempt to alienate her daughter from the father, the judge failed to consider that was in all likelihood partly the inevitable effect of AK being with her mother who was at home for her, whilst her father’s working and socialising habits left little time for him to be at home and partly that this was natural for any child and, in particular, a girl.  In any event, as pointed out earlier, Dr Levy recommended therapy to repair the bond of daughter and father.  Dr Levy did not recommend AK should be separated from the respondent.  In fact she accepted that AK would suffer if separated from the mother.

Conclusion

64. Having considered all the relevant circumstances and in the best interest of the Children, I am of the firm view that care and control of the Children shall be granted to the Mother. As to the access arrangement, Ms Wong recommended that upon taking advice of Dr Pon, the transfer of the Son to the Father should initially be shortened to 2 hours so as to promote predictability and consistency, and gradually be increased when the Son developed greater trust in him. I accept Ms Wong’s recommendation.  Regarding staying access, I will not consider in the meantime since the Son is still afraid that he would be taken away by the Father to the Matrimonial Home and could not see the Mother and the Daughter.  Furthermore, the Father’s girlfriend and the new born baby should be residing in the Matrimonial Home.  The present living condition of the Matrimonial Home is unknown to the Court.  Hence, I will make a supervision order so that the social welfare officer will have to further investigate and then make recommendation to the Court on the suitability of staying access in the Progress Report. I also accept the Father’s belief that the root of the problem between parties partly stems from the family members of the Mother. As recommended by Dr Levy, neither paternal nor maternal relatives shall attend the Sunday access.  I accept such recommendation and will make an order to such effect.

65. Upon the undertaking of the parties to continue to attend co-parenting courses and to continue the psychological treatment for the Son through the service of Dr. Alicia Pon, I now order that:

a.  Joint custody of the Children be granted to the parties;

b.  Care and control of the Children to the Mother with the following defined access to the Father:

1.  Every Wednesday from 7pm to 9pm;

2.  Every Saturday from 2:15pm to 4:15pm;

3.  Every Sunday from 1pm to 3pm until 31 December 2012; from 1pm to 5pm from 1 January 2013 until 31 March 2013; from 1pm to 8pm from 1 April 2013 onward;

4.  The Mother may choose to be present in the aforesaid access unless advised otherwise by the Social Welfare Officer but neither paternal nor maternal relatives shall attend the Sunday access;

5.  In the event that the aforesaid access has to be cancelled by either side, he or she has to give at least 3 days notice to the other side; and compensation for such loss of access shall be made by giving at least 3 days notice;

6.  Pick up and drop off point be fixed at the lobby of the Mother’s house.

c.  Supervision order for a period of 12 months and a Progress Report be filed by the Social Welfare Department 2 months before the expiry of the order.

Costs

66. Regarding the question of costs, Mr Chow, Counsel for the Mother, asked for costs against the Father.  The starting point in all civil proceedings is that costs follow the event subject to the discretion of the court^[6].  However, in family cases this general rule is more readily displaced and especially where children are concerned.  Generally in children’s cases it is usual for there to be no order as to costs. The Court retains a wide discretion to ensure that a party is not penalised simply for making an application in an attempt to show the Court what is in the best interests of the children.  Consequently the general practice of the Courts is not to order costs. The underlying rationale to the costs principle in children’s matters was explained in Sutton London Borough Council v Davis (No. 2)^[7] where Wilson J states that:

Where a debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them.

67. But the court retains its discretion to make a costs order against the unsuccessful party in appropriate cases. Wilson J continued to say in the case of Sutton Borough Council^[8] as follows:

…But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable (see Havering London BC v S [1986] 1 FLR 489 and Gojkovic (No 2)[1992] 1 All ER 267 at 271, [1992] Fam 40 at 60). (emphasis added)

68. As to the kind of conduct that would justify a departure from the general rule, it has been suggested that the unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation. The Court of Appeal upheld the decision of Wilson J in R v R (Child) (Legal Aid: Costs)^[9] stating that:

….Although there was a general practice to not order costs in cases concerning children, courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs. It was unnecessary and undesirable to attempt to limit or place into rigid categories the cases in which courts might order costs, but amongst those cases would be those where a party had been guilty of unreasonable conduct. The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation.

69. If the applicant who goes beyond the limit of what is reasonable pursues a totally hopeless application, it may be regarded as unreasonable conduct that would justify a costs order against him.  In Re G (Costs: Child Case)^[10], Butler-Sloss LJ had this to say:

If this judge in this case had found that this father had behaved unreasonably in the litigation and had gone beyond what many fathers do, seeking orders which are hopeless, the point will come at which pursuing a hopeless application becomes unreasonable. But hopelessness and unreasonableness are not necessarily the same thing. Indeed, particularly where there is a litigant in person, a degree of generosity towards a litigant may be more appropriate than to a litigant which is on legal aid generally advised by counsel and solicitors as to the extent to which they should continue to litigate...

It seems to me that the case of R v R does not change the normal situation that it is unusual to order costs, although it will be appropriate to order costs when a parent, even a litigant in person, goes beyond the limit of what is reasonable to pursue the application before the court. (emphasis added)

70. Therefore, the main issue now is whether the Father has behaved unreasonably in the conduct of his application for custody of the Children that would justify a costs order against him.

71. In the present case, Mr Chow, Counsel for the Mother, submitted that the Father has all along been pursuing the unfounded and purely speculative allegation of coaching/parental alienation against the Mother. I agree that there is no sufficient evidence to prove that the Mother had actually coached the Son.

72. More important is that as mentioned in paras 47 to 50 above, the Father completely deprived the Court and Ms. Wong of the opportunity to assess the role to be played by the Father’s girlfriend in relation to taking care of the Children.

73. Besides, both Ms Wong in the social investigation reports and Dr. Levy in the 1st Psychological Assessment Report do not recommend the Court to grant care and control to the Father. Nevertheless, he still fought for sole custody of the Children at the beginning of the trial and only subsequently, changed to ask for joint custody. Throughout the trial, he still maintained that he should be granted care and control of the Children. In my view, what he should seek from the Court is a proper order as to how to implement the 17 recommendations made by Dr. Levy. However, he did not do so.

74. In my judgment, the Father has behaved unreasonably in the conduct of his applicationin the sense that he goes beyond the limit of what is reasonable to pursue this totally hopeless application before the court.  I consider that no generosity shall be given to him as he is not a litigant acting in person but throughout the proceedings well legally advised by his solicitors and Counsel. I also bear in mind that the Mother is legally aided and funded by public money. Hence, it is justifiable to make a costs order against the Father.  I now make a costs order nisi that he shall pay costs of and incidental to the custody application to the Mother, including all reserved costs in relation thereto, to be taxed if not agreed and that the Mother’s own costs be taxed in accordance with Legal Aid Regulations. Such order nisi shall become absolute unless any of the parties apply to vary the same within 14 days by way of Summons.