AKYC v. DK

FCMC 7376/2017

[2021] HKFC 131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 7376 of 2017

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J U D G M E N T

(Sole custody versus joint custody and access)

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Introduction

1.  The court is asked to adjudicate on the arrangements for the two children of the family, two boys who are now aged nearly 13 and nearly 10 years of age respectively. The Petitioner mother seeks an order for sole custody, whereas the father asks for joint custody. There is no argument over care and control and it is agreed that the boys shall continue to reside with their mother in Hong Kong, under her primary care.  The father, who has now relocated back to Serbia on a permanent basis, seeks an order for joint custody.

2.  In addition, the mother simply asks that the interim order for remote access via Zoom continue, whereas the father asks for slightly increased remote access plus a road map to be put in place for future access. It is the mother’s case that it is currently impractical for there to be any orders for access in the longer term, to include either staying access and/or overseas holiday access.

3.  The main difficulty in this case has been the father’s acknowledged issue with drugs and the behaviours that have, on occasion, ensued as a result.  There have been three incidents of alleged child abuse/physical discipline and access was suspended for a short while on the 28 June 2019, following the third such incident. On the 17 October 2019, shortly prior to the first tranche of the trial, the court ordered interim supervised access on each Saturday from 3:15 pm – 6:00 pm at the Specialised Co-parenting Support Centre run by the Hong Kong Family Welfare Society. This arrangement continued until the father relocated to Belgrade, Serbia in March 2020. It is of note that his relocation took place after the first tranche of the trial.

4.  On the 16 June 2020 the following order was made:

ORDER

UPON hearing Counsel for the Petitioner and Counsel for the Respondent.

AND UPON the Petitioner undertaking to provide the Respondent with photographs of the two children of the family on WhatsApp on a monthly basis and to upload updated details of school events and extra-curricular activities on parenting app Cozi on a monthly basis

IT IS ORDERED THAT: -

1.  …

2.  The Undertakings given by Respondent at paragraph 4 and 5 dated 27^th August 2018 and paragraph 2 of court order dated 28 March 2019 in the following terms shall be discharged:

“AND UPON the Respondent agreeing and undertaking to the Petitioner and to the Court that he will submit the result of breathalyzing test to the Petitioner together with evidence of the date of taking the breathalyzing test immediate or one hour prior to the Respondent’s access and this arrangement shall commence within the next 21 days.”;

“AND UPON the Respondent agreeing and undertaking to the Petitioner and the Court he will submit his hair test results within the next 3 months and every three months thereafter subject to further Court Order.”; and

“UPON the Respondent agreeing and undertaking to the Petitioner and to the Court to provide his hair drug test results on or before 22 May 2019 and every three months thereafter until further Order”

3.  Order 3 of the court order dated 17^th October 2019 for interim supervised access at the Specialized Co-parenting Support Centre shall be varied in that the Respondent shall have interim remote access from Serbia to the 2 children of the family on each Wednesday and Saturday from 8:30 to 9:00p.m. Hong Kong time through Google Chat or Zoom;

4.  Costs of this hearing be reserved and the Respondent’s own costs to be taxed in accordance with the Legal Aid Regulations;

Further it is directed that the Respondent shall provide a urine test for both drugs and alcohol on or before 1^st day of each month, test result to be provided to the Solicitors involved in this case and to the Court.

5.  This order currently remains in place. Drug and alcohol tests submitted since that time have all been negative save for one fairly recent one dated the 1 March 2021, where the father tested positive for cannabis. He tested negative for everything else. There was also an earlier drug test, prior to the first tranche of the trial, dated the 5 November 2018, where the father tested positive for methamphetamine. This led to the appointment of a Single Joint Expert, namely Dr C. In his report dated the 15 November 2019 Dr C stated that:

  Conclusions

13.It is reasonable to conclude that the Respondent was exposed to amphetamine. The most likely explanation is that he took it. The Test Report cannot prove regular use or addiction.

6.  During the trial Dr C was asked a number of questions, inter alia, about the use of methamphetamine and whether the test result could be as a result of taking Adderall or Adderall XR, which is not registered for use in Hong Kong, as alleged by the father. Dr C confirmed that the amount found in the father’s system, was in the “low use or rather lower end of the low-use category”. When asked about the effect that either a low dose of methamphetamine or Adderall would have on a person’s physiological system he said as follows:

However, in general, one can, you know, talk about, you know, what are the drug effects of Adderall or amphetamine. So really mainly three groups of drug effects: one is cardiovascular, second would be neurological, and the third would be psychological or psychiatric. And the cardiovascular effects would include an increase in blood pressure and the pulse rate, and sometimes this increase can be so abrupt and intense that, you know, people can have a stroke as a result. I’m not saying that this would have happened in this case, but I’m talking about, you know, very high doses taken. So that -- and that’s partly why these drugs are considered dangerous and prescription only, because when taken at the right dose, it may help the patient, but you -- if you take too much of it, it’s not twice as good. It’s, in fact -- could be very bad and you can end up with a stroke. So that’s cardiovascular. Also, it causes very intense constriction of the blood vessels, to the extent that people can actually have, you know, the tips of their fingers deprived of blood and circulation and, you know -- and that can actually cause, you know, tissue death and, you know, dropping off of your fingers, although that doesn't happen often, but that – it’s possible, because of the very intense vasoconstriction, constriction of blood vessels. So that’s cardiovascular. And neurological effects would -- the good side would be alertness, wakefulness, somebody feels more energetic, so at the right dose, you know, you are more alert. On the other hand, if you stimulate too much, the person may have, you know, twitches, spasms, very agitated, very restless, very aggressive, and, you know, may even cause an epileptic fit in people who are susceptible. So that’s the neurological effects. As for the psychological or psychiatric effects, well, again, the person may be restless, anxious, agitated, even sort of provoke psychosis in, you know, people who are already susceptible to that. And, of course, long-term regular use might cause addiction and if you suffer from the withdrawal symptoms of those addiction it can be pretty bad because you are used to a high -- to the highs of the drug and if you would suddenly have none of that drug on board, you would feel very low and very depressed and perhaps even suicidal.

I accept what Dr C has said in this respect and that these effects might exist whether or not the father took methamphetamine or Adderall.

Background to the marriage

7.  The parties married on the XX April 2008, shortly before the first child was born. The father was a part time musician and disc jockey and the mother was a part time make up artist. They separated in or about December 2016 and on the 9 June 2017 the wife issued divorce proceedings based on the husband’s unreasonable behaviour. Although these particulars were not agreed, the father sensibly decided not to defend the proceedings.

8.  However, it appears from the affirmations filed, that certainly from the mother’s perspective, the father’s drug taking was the main reason for the breakdown of the marriage and that it was a feature of their relationship from very early on. It is the mother’s case that the father first started to take drugs in 2011. They each give a different explanation for this, but suffice it to say that the father went to a number of drug rehabilitation programs thereafter, but that on each occasion he reverted back to drug taking of some kind or another and was seemingly unable to totally kick the habit. In addition, the mother claims that he abused alcohol.

The issues

9.  It is then in these circumstances that the following issues are to be determined:

1)  Should there be an order for sole custody as requested by the mother or joint custody as requested by the father?

2)  What orders should be made for access, both in the immediate to short term and in the longer term?

3)  Should the court make any other orders or directions?  

The law

The law in Hong Kong

10.  The main provisions regarding children can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. 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-

(Amended 69 of 1997 s. 28)

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

11.  The general principles governing such applications are set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which states that:

GENERAL PRINCIPLES

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2)  the court -

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

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

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

List of factors

12.  In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility)  Bill. Although this list of factors has yet to find its way into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody and access and the best interests of children generally.  The checklist states that the following matters should be taken into account by the court when determining matters of this nature:

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

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

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

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

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

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

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

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

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

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

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

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

13.  It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire for the court and that it can assist in the decision-making process. I have referred to the sections that appear to be most relevant to this case towards the end of the judgment. 

Case law   

14.  The leading Hong Kong Court of Appeal case on this topic remains PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. In that judgment The Hon Mr. Justice Hartmann, JA, (as he then was)  said inter alia as follows:

The concepts of ‘custody’ and ‘care and control’

28.  As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books.

29.  Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

30.  At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

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

32.  By contrast, the decisions to be made by a parent who (at any time)  has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in molding the character of the child.  They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.

33.  We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts.  This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing.  The present case is a prime example.

15.  This case is arguably another. The Hon Mr Justice Hartmann, JA then added as follows when discussing the notion of joint custody:

47.  It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.

…

Joint Custody: the proper approach

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

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

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

55.  Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the 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.

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

16.  That then is one of the primary issues for the court when considering the issue of custody. Would an order for joint custody, which seeks in part to compel some level of cooperation between the parties, only leave the boys more vulnerable in this instance? Or is the fact that relations between the parties continue to be strained, not of itself be a reason to deny the father an order for joint custody, especially as the parties currently have no direct physical contact and live many miles apart? Given that would it be more appropriate to make an “aspirational order” in this case?

17.  Both sides have also referred me to other case law which goes to support either the concept of sole or joint custody. These cases are all very fact specific. I accept that there are occasions when an order for sole custody becomes necessary given inter alia the very difficult relationship that exists either between the parents themselves, or between a parent and a child or perhaps because one or other of the parties has a mental health issue or their behaviours are nevertheless so extreme that normal interaction between them becomes impossible. The issue is whether or not this case falls into that particular category of case, especially given the unfortunate nature of the litigation to date.

18.  There are also other issues to consider and I accept, as stated by counsel for the father in his Reply submission, that

… The law requires a ‘balancing exercise’ in which all relevant factors are considered in determining the best interests of the children. (Father’s reply submission – paragraph 4).

Each party’s proposals

The mother’s proposals

19.  The mother proposes as follows:

The Mother seeks the following order from the Court:-

1.  Sole Custody of the Children of the family;

2.  The Respondent shall have remote access in Serbia with the children every Wednesday and Saturday from 8:30 – 9:00pm Hong Kong time via Zoom or Google Chat;

3.  The Respondent shall submit the result of his breathalyzer test to the Petitioner together with evidence of the date of taking the breathalyzing test immediate or one hour prior to the Respondent's remote access to the Children;

4.  The Respondent shall submit the result of his hair drug test every three months to the Court and parties' solicitors;

5.  The Petitioner need not inform the Respondent should she take the Children out of Hong Kong for less than 3 days;

6.  The Respondent shall not take the Children of the family outside of Hong Kong.

The father’s proposals

20.  The father for his part puts forward the following proposal:

1.  Following the part heard trial on custody and access originally scheduled on 31 March 2020 and 2 April 2020 but later re- fixed on 23, 24 and 25 February 2021, the Respondent seeks joint custody and the following access arrangements with the Children of the family, namely D, N, a boy born on XX September 2008 ("N")  and D, M, a boy born on XX July 2011 ("M")  (collectively referred to as the "Children"):

Short-term Access

2.  As the Respondent is currently based in Serbia and is unable to return to Hong Kong given the COVID-19 travel restrictions, the Respondent seeks the following short-term access arrangements from now until the time when the COVID-19 travel restrictions are lifted by both the Hong Kong and the Serbian Governments: -

(a)  The Respondent shall have remote access (through Zoom, FaceTime or other electronic means)  to the Children every Monday, Wednesday and Saturday from 8:30 pm to 9:00 pm Hong Kong time; or alternatively,

(b)  The Respondent shall have remote access (through Zoom, Face Time or other electronic mean)  to the Children every Wednesday and Saturday from 8:30 pm to 9:15 pm Hong Kong time.

3.  The Respondent shall have additional remote access (through Zoom, FaceTime or other electronic means)  to the Children from 8:30 pm to 9:15 pm Hong Kong time on the following special occasions: the Respondent's birthday on 13th April, Father's Day, M's birthday on 28^th July, N's birthday on 20th September, Christmas Day on 25^th December and New Year's Day on 1^st January.

4.  The Petitioner shall continue to provide the Respondent with photographs of the Children on WhatsApp on a monthly basis pursuant to her undertaking as stated in the recital of the Order of this Honourable Court dated 16 June 2020.

Long-term Access

5.  After the COVID-19 travel restrictions are lifted by both the Hong Kong and the Serbian Governments, the Respondent seeks the following access arrangements:

School Term Time

(a)  The same remote access arrangement as stated in paragraphs 2 and 3 above and photographs of the Children be sent to the Respondent on a monthly basis as stated in paragraph 4 above.

Long School Holiday

(b)  The Respondent shall have staying access with the Children in Hong Kong for half of the long school holidays (including Christmas, Chinese New Year, Easter and summer holidays)  for the first half in even numbered years and the second half in odd numbered years, subject to the following conditions:

(i)  The Respondent do continue to provide a urine drug and alcohol test report to this Honourable Court on a monthly basis in accordance with the direction of this Honourable Court dated 16 June 2020;

(ii)  The access shall be supervised by at least one of the Respondent's family members as follows: father, mother, elder sister or younger brother. If none of them is available to supervise, the access shall be supervised by the Petitioner's helper;

(iii)  The Respondent shall provide the Petitioner with at least one month's written notice in advance of his intention to take up any long school holiday access;

(iv)  The Respondent shall submit a urine drug and alcohol test report containing negative results for all illegal drugs and alcohol to the Petitioner 48 hours before the first day of each long school holiday access; and

(v)  The Respondent shall provide the Petitioner with at least seven days' written notice in advance in respect of the following arrangements during the long school holiday access which he intends to take up: -

I. The place of accommodation for the Children;

II. The time and venue for the pick-up and return of the Children; and

III. The identity(ies)  of the supervising family member(s).

(c)  Alternatively, if this Honourable Court is not minded to grant the Respondent staying access over long school holidays at this stage, the Respondent seeks day access with the Children in Hong Kong for half of the long school holidays (including Christmas, Chinese New Year, Easter and summer holidays)  for the first half in even numbered years and the second half in odd numbered years, from 11 am to 7 pm each day, subject to the same conditions as stated in sub-paragraphs 5(b)(i)  to 5(b)(v)  above. This is in line with paragraph 3 of the Order dated 27 August 2018.

6.  The Respondent's long-term goal with respect to access is that he will be entitled to have overseas holiday access with the Children outside Hong Kong for half of the long school holidays upon further review by this Honourable Court.

7.  The Petitioner shall not arrange any extracurricular activities during the Respondent's portion of the long school holiday access with the Respondent's prior consent.

8.  The Respondent's long school holiday access shall be reviewed in the next 18 months after the new access order is made. An updated Social Welfare Report on the issue of long school holiday access be called for prior to the review.

Dated this 25^th day of March 2021.

The Social Welfare reports

21.  It is trite but worth repeating for the record, that recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. The reports are said to be the “eyes” and “ears” of the court.

22.  In this case there were three reports, the first two filed by the same Social Welfare Officer, namely Ms. Y. These are dated the 30 January 2018 and the 6 August 2018 respectively and are mainly focused on the difficulties surrounding the access arrangements at that time. In both reports Ms. Y maintained basically the same position, namely that there should be an order for joint custody of the children with care and control to the mother and reasonable access to the father. In the first instance she recommended reasonable day access and in the second she recommended reasonable day access in the presence of the mother’s domestic helper. She did not recommend overnight staying access.

23.  In both reports she highlighted the fact that the children have a good relationship with both parents:

View of the Children of the Family

26. N stated that he loved both the parents and felt happy when staying with them. He felt unhappy when they had conflicts with each other. He wanted the parents to seek help from others and be happy again after they settled their conflicts. He told that the present living arrangement was fine to him. He enjoyed having access with the father who brought him and his younger brother for outdoor and sport activities. He also enjoyed playing video game at the father’s home but there was some odd smell inside the father’s home sometimes that he disliked.

27. For M, he told that he liked the father because he would play games, music and video games with him. He also brought him for cycling sometimes. He also loved the mother who would play with him when staying home. He loved to live with the mother and elder brother. Due to his young age and weak expression ability, he failed to fully express his views on the future caring and access arrangement. (1^st report)

Views of the Children of the Family

13. N was unwilling to talk about the child abuse incident. He shared that he felt sad for the father’s act and hoped that the father would not do it again. He had already forgiven the father and considered the interim access arrangement was fine for him. He thought that the present of domestic maid was good as she could stop him and the father from doing something wrong. He liked staying at the father’s home for playing video games with the younger brother.

14. For M, as a result of weak expression ability, he failed to fully express himself but indicated that he felt scared when the father got angry or blamed him. He stated that he liked staying at the father’s home for playing games with the elder brother.  He could not express his views on the future caring arrangement. (2^nd report)

24.  In the third report dated the 3 October 2019, a second Social Welfare Officer Ms. S took a very similar position. In her recommendations she stated inter alia as follows:

Conclusion and Recommendation

17. Since the last Report submitted in August 2018, the children continue to live with the mother and under her care, with support from the mother’s maiden family. Regular access generally on Saturdays of about 8 hours at the father’s home in the presence of the mother’s domestic helper was maintained upon the parents’ self-arrangement. Conflicts over punctuality of handing-over the children sometimes happened between the parent. For a suspected child abuse incident, the access has been suspended after 7.6.2019.

18. The parents maintain similar views as in the last Report. The mother wants to have the sole custody and the father asks for joint custody. In the present investigation, the father agrees the children be under the care of the mother who has all along looked after them. For access arrangement, the mother considers access service at Parent-child Contact Center or outside the father’s home is preferable as she worries the safety of the children for the father’s previous record of abusing the children. The father emphasizes his love to the children and hoped for regular access for keeping the father-son relationship. He agreed to two-day access of shorter hours per week outside his home.

19. The present investigation reveals that the children could develop regular life routines with appropriate education·and trainings.  Despite that the parents at times have different opinions in practice, the children welfare have always been addressed.  Joint custody which focuses on parents’ involvement in making all importance decisions affecting the children and for their most desirable growth and development is deemed feasible in this case.

20. Considering the previous two incidents as related to suspected child abuse, the mother’s concern of the children’s safety is understandable.  For the incident occurred in June 2019, there was no obvious injuries on the children and the case was considered not a genuine child abuse case. Also, there is little sign the father would harm the children deliberately. As observed, father-son interaction was harmonious even after the incident and access, with proper arrangement, to maintain the father-son bonding and for balanced development of the children is recommended.

21. The present weekly day access lasts for about 8 hours, which is to be conducted in the presence of domestic helper. Upon review in the present investigation, the children found the access was sometimes boring as the father might be tired after his work at night. Meanwhile, the father was frustrated when the children indulged in playing their mobile.  The Investigating Officer opines that to shorten the access time and the access to be conducted outside home would encourage the father to arrange more activities for children. It would help to improve the access quality on one hand and its taking in public place is sufficient to ensure the children’s safety. For the same reasons, overnight access is not recommended. As the day access time on Saturday is reduced, it is considered that the father could have a short access to meet the children during weekday such as for dinner.

22. In view of the above, the Investigating Officer maintains the similar recommendation as the last Report with some refinement.  The details· are as follows:

(i)  Madam A [the mother] and Mr. D [the father] shall be granted with joint custody of the children;

(ii)  Madam A shall be granted with the care and control of the children;

(iii)  Mr. D shall have access to the children every Saturday for not more than 5 hours; he should have another 2-hour access at evening during weekdays or Sunday, to be agreed between Madam A and Mr. D; the arrangement of public holidays and long school holidays are similar to the interim order except that the access is not more than 5 hours.

25.  As noted above, following the incident referred to in this report, the court ordered that supervised access take place at a Specialized Co-parenting Support Centre.

Ms. W (student guidance teacher)

26.  Ms. W was the mother’s witness. She was not a Single Joint Expert. She wrote two letters addressed “To Whom it May Concern, seemingly of her own motion, dated the 23 November 2018 and the 11 March 2019. She also filed an affirmation dated the 14 November 2019. Ms. W confirmed that she was a student guidance teacher and not a registered social worker. However, she had worked with both children, and indeed had also liaised with both of the parents at various points during the children’s time at her primary school. She reported that at times the children had been frightened of their father and had not wanted to see him. She was clearly concerned for them and for that reason had decided to speak up. However, she also confirmed that she had not seen N since he was promoted to senior school at the beginning of this academic year and that she had had very little interaction with the younger child either, following the protest movements in 2019 and then Covid. Although well meaning I tend to accept the criticisms made of her by the father’s counsel in his Reply submission when he stated as follows:

As the Court rightly pointed out in the PTR on 1 November 2019, while Madam W may be able to speak to the Children’s emotional well-being at school - she is not an expert witness (nor was she tendered as one by the Mother). In any event, most of her affirmation and letters concerned hearsay allegations that should not be given any weight. She was also neither qualified nor capable of obtaining the Children’s views on access. She is not a registered social worker, and she did not observe the children together with the Father. She was also clearly partisan in favour of the Mother, who she said she had been supporting for many years. She accepted that she has never written such letters to court before this, and that her letters were provided only to the Mother’s lawyers. In any event, far more weight should be given to the reports of Ms. Y and Ms. S, who did observe the parent-child interactions, and have decades of experience and training in child welfare assessments.

…

33.  Ms. Y and Ms. S conducted a thorough investigation and analysis of the Children’s circumstances, their needs, the benefits of the Father’s involvement and time with them, his strengths and weaknesses, and the resources available to him. They met with the teachers, doctors, parents as well as the Children, and saw them interact with their Father. Their reports were of high quality and should be given weight. The school counselor, Madam W, on the other hand did not purport to be undertaking such an endeavour, nor was she trained or experienced to do so.

With respect I agree with these observations.

Discussion

Should there be an order for sole custody as requested by the mother or joint custody as requested by the father?

27.  I should say at the outset that I accept that this is a finely balanced case and one where historically the level of conflict between the parents has been extremely high. This appears to have centred on the father’s drug taking and difficult behaviours that have arisen as a result.

The incidences

28.  There are three so called physical incidences and one other that have arguably made this situation even more difficult than it might have been otherwise. The first incident occurred on the 18 February 2018, when the father slapped both children on the face when he lost his temper because they would not do as they were told. This incident took place at his home during an access visit. The mother subsequently reported the incident to the Police and the father was arrested; he ultimately pleaded guilty and was sentenced to a community service order of 160 hours for assaulting a young person (x2). Understandably perhaps, access became very problematic following this incident as has been highlighted by Ms W.

29.  A further incident took place on the 6 October 2018, which was really an altercation between the parents, which was witnessed by the children, but did not involve any physical violence. The mother put it thus in her affirmation dated the 27 December 2018:

15. On 6^th October 2018 (Saturday), N has school field trip from 9:00am to 3:00pm. We both agreed that I would drop him off and the Respondent would pick N up at 3:00pm since it was his access day.  The Respondent was then expected to drop N off at basketball class in Whampoa at 4:00pm. However, the Respondent cancelled access to the Children on very last minute notice at around 2:30pm. I then took over and picked up N from his field trip and dropped him off at basketball class at 4:00pm.

16. The Respondent called me again at around 3:15pm and said he could meet N somewhere in Jordan or Yau Ma Tei but I had to refuse as I was already taking him to Whampoa for his basketball class. He then got really upset and started yelling at me over the phone and I eventually hung up. Subsequently at around 8:00pm, which is after the Respondent’s children access time, the Respondent showed up at the premise where the Children have their swimming classes and took them away without any prior arrangement or consent.  The Respondent father further yelled at me which also caused great disturbance to others in the pool area. The Respondent took our Children and sat down on a bench, after a while the Respondent left and our Children came running at me and said to me they had to follow his instructions because they were scared. …

17. I do not understand the Respondent’s unreasonable behaviour, I spent a lot of the scheduling and planning our Children’s daily, weekly and monthly activity.  While I am supportive of our Children seeing the Respondent once a week, such behaviour should never be displayed in front of the children as it can affect their development and relationship with their father.

18. I wish to draw this Court’s attention to the above incident as I still feel scared and insecure with the Respondent constantly ignoring the Court’s order. This matter has given me great fear and anxiety and I am unsure whether out Children is safe around him.

It is of note that the positive drug test for amphetamine is dated shortly after this incident on the 8 November 2018.

30.  The second hitting incident took place on the 12 January 2019 and the mother again reported this incident to the Police. In her 3^rd affirmation dated the 19 June 2019 she describes it thus:

SECOND HITTING INCIDENT

9.  On 12 January 2019 (Saturday), I was attacked by the Respondent and had to report this matter to the Police.

10. On the day of the second incident, I was at home waiting for S’s [domestic helper] call for the Respondent to return the children at 7:00pm. At around 7:30pm, S called and told me the Respondent refused to let S take the children home. The Respondent insisted I went to the Tsim Sha Tsui MTR station near Haiphong Road to pick up the children. I immediately went downstairs after the call to understand the situation. As I was approaching them, I saw the Respondent yelling at the Children and they were both silent. Upon my arrival, the Respondent started yelling at me and said I was late for half an hour.  I then explained to him it was him who was late to the pick-up point for half an hour. He ignored my comments, stood in front of me and started yelling at me and said I was to blame for his arrest and his sentence by the Court. I was terrified so I stepped backwards, he then started hitting my head for a few times. I was terrified and did not argue with him but only told him I have to bring the children home right away. He then took M away and started crossing the zebra crossing. I took N and started calling the police and following the Respondent and M. The Respondent followed us home when I told him not to but he would not let go of M.  Once I reached home, I took both N and M and locked our doors at home. The Respondent stayed outside of the flat, rang the doorbell few times and left after 3 minutes. The. police officers arrived about a minute after he left and I made a statement after the Police had arrived.

11. The case file reference number is TST RN 1XXXXXXX. A letter from the Hong Kong Police Force in Chinese dated 11 March 2019 was obtained. In summary, the letter states that the arrested person (the Respondent)  was sentenced to 7-day imprisonment and suspended for 12 months. There is now marked and produced to me “CAKY-301” a letter from the HKPF force dated 11 March 2019.

31.  It is the father’s case that this incident came about after N kicked him and, in his words,

16. When the Children and I were heading towards the MTR station, N suddenly kicked me from behind. I then talked to N and explained to him that it was inappropriate for him to behave in such way. The Petitioner arrived at the pick-up location when I was still talking and teaching N whom the Petitioner saw me talking to N, she alleged that I yelled at the Children which is not true.

I asked the Petitioner to give me and N a few more minutes so that we could finish our conversation. Nevertheless, the Petitioner refused and said that she needed to bring the Children home right away without giving any reasons. The Petitioner then grabbed the upper arms of the Children and pulled them away from me by force. I was worried that the Children would get hurt. Therefore, when the Petitioner grabbed the Children and yanked them, I tapped the Petitioner's forehead and said to her “our kids are not luggages, please respect our kids as people. The Petitioner then called the police and I did not resist as I felt that the Petitioner was hurting the Children by pulling them with force and I was simply trying to stop her.  On a hindsight, I agree that I should have handled the situation in a more peaceful manner.

17. I respected the Petitioner’s decision to take the Children home. I walked M back and she walked N. Once we reached the Petitioner’s home, she slammed the door and I stayed outside of the flat and waited for the arrival of the police. I waited for the police’s arrival as I thought that the police could help resolve this drama.

18. Upon the police’s arrival, I was taken to the police station. The police locked me up in solitary confinement and I felt that I was poorly treated. I was brought to the Court the next day and I pleaded guilty to the charge of common assault. Due to my limited financial resources, I was not able to retain solicitors to represent me in this matter. I was advised by the duty lawyer that unless I plead guilty, I would be sentenced to prison due to my previous conviction. As a result of my plea of guilty, I was sentenced to 1-week imprisonment suspended for 8 months.

32.  The third major incident took place on the 7 June 2019. On that day it seems that the father hit the children several times, when they refused to stop playing on their game consol. It is alleged that the father then forced the elder son, N to try to break his own cell phone with a hammer and when he couldn’t quite manage it, he did it on his behalf. Again, this incident was also reported to the Police. The father sets out his version of events in his 4^th affirmation dated the 19 August 2019:

20. After I picked up the Children on 7 June 2019 at around 11 a.m., I asked N to study some computer programs together. As N did not listen to me and was only playing games on his phone, I tapped on N’s nose. The domestic helper, S was not in the room at that time. I did not intend to hurt N but was trying to draw his attention to the fact that he should not spend too much time on his phone.  N did cry but he managed to calm down quickly after I talked and explained to him the reason why I tapped on his nose.

21. In the afternoon, the Children, S and I went to have hotpot for lunch at a restaurant. After the food had arrived, I put vegetables in M’s bowl but M did not want to eat the vegetables and he therefore kicked the table. The hotpot almost fell on S [the domestic helper] and I had to hold the table to stop it from turning upside down.  M’s act was extremely dangerous as the boiled soup could hurt the Children or S badly, and I was deeply concerned with M’s impulsive behavior.  Therefore, I tapped M on his face once and asked him to go outside of the restaurant. Subsequently I went out of the restaurant and took M for a walk and told him that what he did was very dangerous. M understood after our conversation and he was calm and fine afterwards.

22. I was upset and disturbed by the fact that the Children were always focusing on their phones during access. I broke my mobile phone with a hammer and threw it to the bin as I wanted to show the Children that mobile phones are not important compared to the valuable time that we get to spend with each other. I never forced N to break his mobile phone with a hammer as alleged by the Petitioner. I only told N that looking at the screen of mobile phone all the time could be damaging to his health.

23. I understand that the Children may find it shocking that I broke my mobile phone, but at the same time I hope they can understand why I did that.

It is of note that this incident occurred at a time when serious concerns had already been raised about the father’s behaviours and he had already received two sentences from the Magistrates Court for incidences which had involved the children.  

33.  Should the father be granted joint custody in a situation like this, i.e., where on occasions he has acted in a completely out of control manner, which resulted in some physical discipline of the children (on his case)  or assault on them (on the mother’s case)  and led for a while at least, to them being afraid of him? Would an order for joint custody, in a situation like this, only leave the boys more vulnerable than they would be otherwise? Or should an aspirational order be made for joint custody in the hope that this will acknowledge the role that the father has in the life of the boys and that this will provide the parties with a basis upon which they may be able to make important decisions going forward?

34.  It is of note that in addition, the mother complains that the father has found it difficult to comply with the court orders whether he is in Hong Kong or in Serbia, and that this has also made the situation difficult to manage. For example, she says this of the scheduled Zoom access sessions prior to the second tranche of the trial:

Remote Access date	Events
17 October 2020	Father messaged Mother at 9:20 pm and asked if he could change access to the next day Petitioner switched for him but gave him a warning as the children were disappointed
28 October 2020	Father called Mother at around 9:30pm and have remote access via zoom with the children but Petitioner refused as the children had to go to bed. Respondent gave the Petitioner a difficult time.
30 December 2020	Father was late, remote access started at 8:45pm
30 January 2021	Father rescheduled remote access to 8:40pm
3 February 2021	Father missed remote access
6 February 2021	Father missed remote access
7 February 2021 (not access day)	Father suddenly called and wanted remote access without prior discussion or arrangement.
13 February 2021	Father missed remote access
14 February 2021 (not access day)	Father messaged and asked for sudden remote access but Mother refused

35.  It is suggested by counsel for the father that there are no “custody” issues that the parties are currently in dispute over. Indeed, he pointed out that the mother complains that the father basically takes a passive approach, i.e., that he is not involved with the schooling and that he leaves all such matters to her. Further, he is not involved with any decision making around their Extra Curricular Activities (ECA’s), although it is the father’s case that this is because the mother does not consult him about such things. There is a potential difficulty about the children’s mental health and whether or not N in particular has ADHD. To that end it is of note that the parents did not appear to be at odds over this issue during the trial.

36.  The mother also complains that it is difficult to communicate with the father. Whilst I would accept that this was certainly the case whilst the father was in Hong Kong, it does not appear to be so much of an issue now that he is based in Serbia.

37.  In such circumstances, and in accordance with the recommendations made by both Social Welfare Officers, I am persuaded that it is appropriate to make an “aspirational order” for joint custody. However, this order also comes with a warning. If the father relapses and/or is unable to otherwise take up his parental role fully, I accept that it might become appropriate to vary the order to one of sole custody in the future. I very much hope however, that that will not be necessary and that the order for joint custody will provide the parties with the structure necessary in order to sensibly make custodial decisions about the children going forward. 

What orders should be made for access, both in the immediate to short term and in the longer term?

Access in the short term

38.  The mother suggests no alteration to the current access arrangement and complains (as set out above)  that the father has a habit of either cancelling or being late for the remote access that is currently in place. Although that may be true, I also accept that all things being equal it is appropriate for the father to be able to speak to the children for longer periods and for there to be additional scope for him to be able to speak to them separately. Similarly, I further accept that it is appropriate for him to be able to speak to them on special days. With that in mind I shall make an order in terms of paragraphs 18 2. (b)  and 18 3 of the father’s proposal as set out above namely that:

18. 2 (b). The Respondent shall have remote access (through Zoom, Face Time or other electronic mean)  to the Children every Wednesday and Saturday from 8:30 pm to 9:15 pm Hong Kong time.

3.  The Respondent shall have additional remote access (through Zoom, FaceTime or other electronic means)  to the Children from 8:30 pm to 9:15 pm Hong Kong time on the following special occasions: the Respondent's birthday on XX April, Father's Day, M's birthday on XX July, N's birthday on XX September, Christmas Day on 25^th December and New Year's Day on 1^st January.

Access in the longer term

39.  Access in the longer term is more problematic and I accept that it is currently impossible to make an order as envisaged by the father whereby all longer school holidays are split 50:50 and he has the children for extended periods of time including overnights, albeit in the presence of another family member or the mother’s domestic helper. However, I do accept that the father should be able to have physical access to the children, initially in Hong Kong over the school holidays. Thus paragraphs 5 (b)  and (c)  of the father’s proposal are accepted save for some amendment. For the avoidance of doubt initially all such access shall be for no longer than 5 hours per day. There shall be no overnight staying access pending further order.

40.  Thus, the Respondent shall have day access with the Children in Hong Kong for two weeks over the school summer holidays and for half of the Christmas, Chinese New Year and Easter school holidays, during the first half in even numbered years and during the second half in odd numbered years, for not more than 5 hours each day.

41.  This access shall be subject to the following conditions:

i)  The Respondent do continue to provide a urine drug and alcohol test report to this Honourable Court on a monthly basis in accordance with the direction of this Honourable Court dated 16 June 2020;

ii)  The access shall be supervised by at least one of the Respondent's family members as follows: father, mother, elder sister or younger brother. If none of them is available to supervise, the access shall be supervised by the Petitioner's helper by agreement with the Petitioner or by some other third party also by agreement;

iii)  The Respondent shall provide the Petitioner with at least one month's written notice in advance of his intention to take up any long school holiday access;

iv)  The Respondent shall submit a urine drug and alcohol test report containing negative results for all illegal drugs and alcohol to the Petitioner 48 hours before the first day of each long school holiday access;

v)  The Respondent shall also submit a clean hair drug test to the Petitioner one month prior to the proposed long school holiday access;   

vi)  The Respondent shall provide the Petitioner with at least seven days' written notice in advance in respect of the following arrangements during the long school holiday access which he intends to take up: -

I.   The place/es where the access is to take place;

II.   The time and venue for the pick-up and return of the Children; and

III.   The identity(ies)  of the supervising family member(s)/other proposed supervisors.

vii)  In addition, the mother shall continue to be bound by her undertaking, given in the court order dated the 16 June 2020, to continue to provide the father with photographs of the children on a monthly basis and to update details of school events and extra-curricular activities onto a parenting app.

Should the court make any other orders or directions?

42.  The court shall not give general leave for the mother to remove the children out of the jurisdiction of HK from time to time – even for three days or less. I am afraid that she will need to make a separate application in this respect in the normal way. When the time comes, the father will need to do likewise.

The check list of factors    

43.  Reference can also be made to the checklist of factors as set out in paragraph 12 above. Of those, it seems to me that the following are of particular relevance in this case:  

the child’s physical, emotional and educational needs

44.  In this instance I accept that the children’s needs are almost wholly met by the mother and her family at present, including their financial needs.

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

45.  I accept that the children wish to have a relationship with their father and that this is borne out by the Social Welfare report, even though it has, on occasion, been a very difficult relationship. I also accept, as pointed out by Ms. W that there have probably been occasions in the past when the children have not wanted to see their father. I also accept that they appear to have a close and loving bond with their mother. I am also told that the mother’s family assist with child care.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

46.  On occasion the father’s behaviours have historically shown a complete lack of insight. This may be because of his struggle with illicit drugs, or it may be because of his character, or it may be a combination of both of these things or it may be due to something else entirely. Unfortunately, however, his lack of insight is a matter of concern. He also seems to have taken a passive attitude to many of the fundamental responsibilities surrounding parenthood, including the children’s education. Time will tell if he is able to step up in any meaningful way. Notwithstanding this, I accept that both parents love the children deeply.

Any harm which the child has suffered or is at risk of suffering;

47.  One of the mother’s main concerns has been that the children may be at risk of physical harm if the father is abusing drugs when they are in his care. She is also concerned about the psychological risk that could arise if that were the case. I accept that this is a genuine concern and one that needs to be taken seriously. It is for that reason that I think we need to proceed with the longer-term access arrangements cautiously.

Any family violence involving the child or a member of the child’s family;

48.  Whether the three hitting incidences should be termed as “assaults” or “acts of discipline”, the fact remains that the father has historically behaved on those occasions, in a way that was out of control and certainly with respect to the last incident, was also somewhat bizarre. There is no doubt that the children must be shielded from any possible repeat of such behaviours in the future.

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;

49.  I accept that the mother is totally capable of meeting all of the children’s needs. Time will tell if the father is similarly able to meet his obligations in this respect. 

The character of the parents

50.  The mother presented very well. Unfortunately, the father came across as being very unreliable. He was late after lunch on the first day of the trial and completely missed the morning of the second day. After the long adjournment caused in part by COVID and the general adjournment of court proceedings (the GAP), followed by the father’s relocation to Serbia, and after considerable effort had been made to ensure that the father was able to attend the trial remotely, the father was again very late for the last day of the trial, only appearing at just after 4:00 pm (for a day scheduled for the afternoon only). His speech was also slurred and he seemed a little disorientated.

51.  It follows that the court remains concerned about whether or not the father will be able to maintain his sobriety over the longer term and the effect on the boys if ultimately, he loses his battle with drug addiction. To that end the court shall give liberty to apply on an urgent basis, with particular reference to the proposals for holiday access in the longer term.  

Costs 

52.  Notwithstanding the concerns about drug and alcohol addiction, this remains essentially a child related matter. Consequently, the court intends to make the standard order that there shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs such costs to be taxed on a party and party basis if not agreed. The Respondent’s own costs shall be taxed in accordance with Legal Aid Regulations. There shall be certificate for all counsel involved.   

Orders 

53.  Consequently, the court shall make an order as follows:

i)  There shall be an order for joint custody of the two children of the family namely DN, a boy born on the XX September 2008 and DM, a boy born on the XX July 2011, with care and control to the Petitioner and defined access to the Respondent as follows:

Access in the short term

Term time access

a)  Order 3 contained in the court order dated the 16 June 2020 shall be varied in that the Respondent shall have remote access to the two children of the family or either of them, on each Wednesday and Saturday from 8:30 to 9:15 pm Hong Kong time.

b)  The Respondent shall have additional remote access to the children of the family, or either of them, from 8:30 – 9:15 pm on the following special occasions – the Respondent’s birthday on the XX April, Father’s Day, M’s birthday on the XX July, N’s birthday on the XX September, Christmas Day on the 25 December and New Year’s Day on the 1^st January.

Access in the longer term

School holiday access

c)  With effect from the school Christmas holidays 2021, the Respondent shall have supervised access to the two children of the family, or either of them, as set out in paragraphs 40 and 41 above. Further it is directed that if he has not elected to take the access by the time stipulated, then the Petitioner shall be at liberty to arrange ECA’s for the boys during those periods of time. Further, in that event, the remote access shall continue as set out under Term time access above.  

ii)  The First Appointment shall be adjourned to the 16 November 2021 at 9:30 am. 

iii)  An updated Social Investigation Report shall be called for in 18 months’ time on the issue of access only.

iv)  There shall be liberty to apply on the issue of access only.

v)  There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs. The Respondent’s own costs shall be taxed in accordance with Legal Aid Regulations. There shall be certificate for all counsel involved.