CWT v. CKK

FCMC 14169 /2007

   IN THE DISTRICT COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   MATRIMONIAL CAUSES

   NUMBER 14169 OF 2007

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  This is an application by the Petitioner mother (“M”) for variation of an order made by consent giving care and control of the child of the family (N”) to the Respondent father (“F”).

2.  The order was made on 31 January 2008 (“Consent Order”) and provided, among other terms, that:

(i)  the parties to have joint custody of N

(ii)  N’s care and control to F

(iii)  M to have reasonable visiting access only but not staying access of not more than twice a week at such time to be mutually agreed between the parties

3.  N moved to live with her father on about 1 March 2008, and 6 months later, on 3 September 2008, M issued her application seeking a variation of the Consent Order and N’s care and control.

B. BACKGROUND

4.  F is now aged 44 .He was born and brought up in Hong Kong. After matriculation, he went to university in the United Kingdom and obtained a Bachelor of Science in Engineering. He then returned to work in Hong Kong. Thereafter, he had had a number of jobs, and was last employed for about 5 months by a large corporation as a Business Manager. He was laid off on 1 August 2009, and was unemployed at the time of the trial. Over the years, he had also obtained a MBA from University of South Australia, and recently in 2008, he further acquired a Postgraduate Diploma in Construction Law, Mediation and Arbitration from the University of Hong Kong.

5.  M is now aged about 40. She was also born and brought up in Hong Kong and obtained a Diploma in Executive Secretarial Studies after completion of secondary education. She then started working as a secretary and later obtained a Higher Certificate in Company Secretary through attending a part-time evening course. Since about 1991, she has been employed by a statutory body, initially as a Personal Secretary and later in 2005 as an Administrator, after acquiring a Master Degree in Health Service Management and a Master Degree in Business Administration. M is now pursuing a distant learning course of the London University which will lead to a Bachelor of Laws degree.

6.  According to F’s affirmation, he met M in about 1993 and later they were married on 29 December 1996. Regrettably, they soon had marital difficulties, and W claimed that in about mid 1997, she left the matrimonial home for a short period, and later with the help of a social worker, the parties attempted to reconcile and resumed cohabitation. Their only daughter, N, was born in June 2001, but marital problems continued and F decided to move out of their then jointly owned matrimonial home in Hunghom in September 2001, about 3 months after N was born. According to F, their separation was due to M having an affair, which M denied. M, on the other hand, alleged that F had used violence towards her, which was in turn denied by F. Anyway, all this is now past history. Suffice to say that after their separation, up until about June/July 2008, they had maintained a reasonably amicable relationship.

7.  After F moved out, N remained living with her mother in the matrimonial home. M’s Filipina helper and M’s mother were both assisting her in looking after N. The helper Amalia (“Amy”) has been employed by M since about June 2001,around the time N was born.

8.  Apparently, the parties decided to postpone any divorce proceedings or any discussion over N’s custody until N was enrolled in a primary school in September 2007.

9.  Since their separation, for over almost 7 years, F would go to visit N every Saturday and Sunday plus some week days. According to F, during weekends, all three of them would go out, and that during those years, the three of them had also gone on overseas holidays.

10.  In early 2007, M started to discuss with F about the divorce and the division of the matrimonial home. There were some email exchanges between the parties, and the significant one was M’s email to F on 12 September 2007, making 3 proposals for settlement in relation to N’s custody and maintenance and the division of the former matrimonial home for F’s consideration (“M’s Email”).

11.  There appeared to be no immediate agreement and M then issued the present divorce proceedings on 10 November 2007. After the petition was issued, the parties had continued to negotiate. They then found a purchaser for the former matrimonial home and were finally able to reach an overall agreement in relation to custody and financial matters. Minutes of their agreement were signed on 3 December 2007(“Minutes”).

12.  Under the Minutes, the parties agreed to have joint custody of N, with her care being transferred to her father. Judge Remedios, the then judge dealing with the case, had queried the agreement, as N had all along been living with her mother and under her mother’s care. M’s former solicitors wrote a letter on 30 January 2008 to the Court to explain M’s reasons for transferring N’s care to F (R-4) (“M’s Letter”). This satisfied Judge Remedios who then approved the terms of the Consent Order upon granting the decree nisi of divorce.

13.  On 1 March 2008, N , who was not yet 7 years old at the time, moved from her mother’s home to her father’s home at K Garden. M said she was concerned that N might not be able to cope with the sudden and abrupt change in her living environment, and she arranged for her helper Amy to be seconded to F and to live and work in F’s home with N. F agreed to this arrangement.

14.  Further, to ensure that there would be a smooth transition for N during the initial period, M said she would make an effort to attend F’s home as frequently as possible after work to help supervise N with her homework. M said she would arrive at about 6 or 7 pm and stayed until about 10pm. There was no objection by F to such visits. During the 3 month period from March 2008 until about June 2008, in fact, according to F, M would stay overnight at his home most of Saturday nights or alternatively she would go to H’s home on Sunday mornings to see N. Although during the trial, the parties gave different versions on the frequency of M’s weekday visits, until about June/July last year, the arrangement went largely smoothly notwithstanding the parties having arguments on some occasions.

15.  Then some time in June/July 2008, M stopped going to F’s home. The parties gave different reasons for this, but what is clear was that F’s girlfriend T was introduced to N in June 2008. T is now F’s fiancée and they plan to marry sometime next summer.

16.  After June/July 2008, the parties’ amicable relationship began to falter. M complained that N had experienced a number of abrupt changes in her lifestyle which N found difficult to adjust to and that these changes could have long term adverse effect on N.

17.  Eventually M issued the present application on 3 September 2008. According to M, after the issuance of her application, F has been using all sorts of means to prevent her from taking part in N’s daily affairs, which F has denied.

18.  Although in her summons, M sought sole custody of N, during the trial, M agreed to the parties continuing having N’s joint custody, and the only issue now is who should have the care and control of N.

C. THE LEGAL PRINCIPLES

19.  S. 3 of the Guardianship of Minors Ordinance sets out, among other things, that, in relation to the custody or upbringing of a minor, the court shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to (A) the wishes of the minor, if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (B) any material information including any report of the Director of Social Welfare available to the court at the hearing.

20.  The above general principles set out in s. 3 of the Guardianship of Minors Ordinance apply to custody applications in matrimonial proceedings under s.48 C of the Matrimonial Causes Ordinance. Further, under s.19 (6) of the Matrimonial Proceedings and Property Ordinance (Cap. 192), this Court has the power to vary the Consent Order.

21.  In Hong Kong, although in the Law Reform Commission’s Report issued in March 2005 (“Report”), a ‘checklist’ of factors was recommended for considering the best interest of a child in child related applications. This recommendation was based on the then checklists in England and in Australia. Although so far, there has been no progress since the Report, there have, however, been cases where judges and practitioners have found it helpful to refer to the recommended ‘checklist’. The recommended ‘checklist’, from what I could gather from the Report, includes :

(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 the ordinance in the proceedings in question.

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

22.  I will be referring to some of the factors later in this Judgment. F had referred this Court to Wong Chiu Ngar Chi v. Wong Hon Wai Linus CACV 166 of 1986. With due respect to F, I agree with Mr. Li that case involved an application for permanent removal of children out of jurisdiction where different considerations applied. . I now turn to the issues in this case.

D. M’S REASONS FOR VARIATION

23.  M’s reasons for applying for a variation were set out in her first affirmation filed in support of her application. To summarise, her main complaints were :

(i)  F did not show sufficient regard for N’s development and educational needs.

(ii)  F did not provide adequate care for N.

(iii)  The living environment provided for N by F was unsatisfactory.

E.  F’S REASONS FOR RETAINING N’S CARE

24.  F represented himself throughout the matrimonial proceedings and this variation application. He had filed a 77 page affirmation opposing W’s application and asking for N’s care to continue to be vested in him.

25.  F alleged that M only dramatically changed her attitude towards him after he introduced T to N in June 2008.

26.  His reasons for retaining N’s care were set out in his affirmation which I summarise as follows:

(i)  There have been good changes in N’s living environment.

(ii)  He has provided well for N’s well being, development and education.

(iii)  There is harmony in his household.

27.  F had further criticized M in several respects, including :

(i)  M failed to put N as her first priority.

(ii)  M was arrogant and inconsiderate.

(iii)  M was impatient and violent.

F.  THE PARTIES’ EVIDENCE

28.  M filed three affirmations in support of her case and attended trial to be cross-examined by F. M had earlier arranged for her Filipina helper Amy to file an affidavit. Later during the trial when Amy was giving oral evidence, it appeared that she was having problems understanding and/or speaking English, and a Tagalog interpreter would need to be arranged. To avoid delay, M decided to seek leave to withdraw Amy’s affidavit, which was granted.

29.  F filed one affirmation, and he also attended the trial to be cross-examined. There was an affirmation from T to support his case, and T attended the trial to be cross-examined. Like M, F had earlier arranged for his Indonesian helper Aenunah ((“Andy”) to make an affirmation to support his case, but when Andy attended trial to be cross-examined, it turned out that she had preferred not to give any oral evidence. In the end, F also decided to seek leave to withdraw Amy’s affirmation, and leave was granted.

30.  Both the domestic helpers’ affirmations were written by their respective employers, and the helpers were understandably following their instructions. By withdrawing their affirmations, the trial had been shortened and it was clearly a sensible decision by both parties. Both parties work full time during the week and they have to rely on helpers to help look after N. From what little I could see of the two helpers in the witness box, they both seemed healthy and should be able to carry out their duties.

31.  Both F and M are clever and educated. They are hard working, and both of them are still taking further courses to improve and better themselves, in addition to their regular work. Although F appears to have more a chequered career, he did seem to be able to find a job not long after leaving the previous one. Even though he was out of a job during the trial, I believe he will be able to find something suitable soon. I find both of their evidence generally credible.

32.  T is also an educated lady and works in the marketing field. She considered herself having built up a good relationship with N, and she supported F in retaining N’s care. I find her sincere and genuine in showing care towards N and interest in N’s welfare.

33.  There were also two social investigation reports prepared by the social worker Ms Puk, one dated 15 December 2008 (“1^st SWR”) and the the second one dated 10 August 2009(“2^nd SWR”). Ms Puk who also attended trial to give oral evidence.

G. SOME FACTUAL ISSUES

34.  There were a number of allegations which the parties made against each other. Some of factual disputed issues were :

(i)  M’s reasons for agreeing to N moving to live with her father on 1 March 2008

(ii)  F’s failure to allow N to attend the entrance examinations for two well known schools

(iii)  N’s extra curricular activities

(iv)  N’s pocket money

(v)  F’s unsatisfactory living environment

(vi)  N’s birthday party in June 2008

(vii)  Circumstances under which Amy left F’s Home

(viii)  M’s failure to provide N with a safe living environment

(i) M’s reasons for agreeing to N moving to live with F in March 2008

35.  F alleged M agreed to give him care and control of N at the time of the Consent Order due to her own reasons.

36.  When M issued the petition in November 2007, in her prayer she sought sole custody of N. She further signed a Statement of Arrangement on 15 November 2007 (“Statement”) stating that N was under her care and proposing N to continue to live with her. M had said in the Statement that N was then being looked after by M’s mother , with the assistance of a domestic helper. M had further stated that her mother was retired and was in good health. The Statement was filed only about 2 weeks before M signed the Minutes giving N’s care to F.

37.  As M had always been the primary carer of N, it was surprising that she would suddenly agree to transfer N’s care to F. As I have mentioned earlier, such proposed change was queried by Judge Remedios.

38.  In M’s Letter in reply, her then solicitors were trying to convince Judge Remedios that the proposed change of living arrangement for N was the best in the child’s welfare and interest. In this letter, it was mentioned for the first time that M’s mother’s health was getting worse after M petitioned for divorce and that it was foreseeable that her mother could not assist in caring for N in future. It was further stated in M’s Letter that M had to work long hours each day from 9 am to 8pm. M’s Letter was sent at the end of January 2008.

39.  When M was cross-examined by F during the trial, she gave 4 reasons as to why she agreed to N ‘s care being transferred to F. One of these was her mother’s health. M said that her mother was at that time suffering from “a little” high blood pressure. Another reasons she gave was that her then workload was heavier. The third reason was that the parties had separated for so many years since 2001, and she would like to resolve the divorce process as quickly as possible. The last reason M said she also considered N’s welfare. According to M, all these 4 reasons made her decide to agree to F having N’s care and control. She said she had hesitated but decided to “give it a try”. She accepted that she believed that F would be a responsible father and that was why she decided to “give it a try”.

40.  During the trial, M explained why she had additional workload. According to M, November 2007 was her busiest month as she had to take on additional duties. She then said these additional duties lasted for one odd month. I agree with F’s query as to why M would then choose her busiest month to issue her divorce petition, and M gave no satisfactory answer to this.

41.  Although the parties signed the Minutes in December 2007, it was not until 1 March 2008 that N moved to live with her father. It was clear from M’s own evidence during the trial that the additional workload was only temporary and lasted only for not more than two months. In fact, according to M’s evidence, by about February 2008, her workload was already back to the situation as before November 2007

42.  When asked about her mother’s present condition, M said her mother was taking medication and her blood pressure was under control. There was no evidence that her mother’s condition deteriorated in the two weeks between the date of the Statement and the date of the Minutes, or that such condition was serious. M’s mother clearly did not require any particular care from M at the time. In fact, as M herself had said, after N moved to live with her father, M often went to F’s home to be with N, even staying overnight on most of Saturday nights or would go to F’s home every Sunday morning. M’s case was that her mother was not able to help her look after N, but during the trial it was obvious that all along, it was Amy who was mainly helping M to look after N. Further, when N moved to live with her father, it was again Amy who went over to F’s home to continue to help looking after N. Thus, even if M’s mother ‘s health had turned for the worse in November 2007, I would have thought that M would have managed to have N to remain under her care with the help of Amy, which F was able to.

43.  It could be seen from M’s Email, which was in September 2007, one of the 3 proposals envisaged M being transferred to her father’s care. Children’s issues should never been made part of financial negotiations, and I find it most inappropriate that the parities involved their child’s custody arrangements as part and parcel of their discussions over finances. M’s email was about 3 months before the Minutes were signed. M said F did not accept any of her 3 proposals at the time Whether F accepted any of those 3 proposals or not was besides the point, the fact was Plan C of those 3 proposals clearly involved N’s care being transferred to F, indicating that M was willing to let F have N’s care and this proposal was made before the alleged deterioration of M’s mother‘s health or any increase in M’s workload.

44.  I thus accept F’s allegation that M agreed to give up N’s care more for her own selfish reasons. I find that M was concentrating on persuading F to agree to a financial settlement and to resolve the divorce, as she put it, as quickly as possible, and that she had indeed put N’s welfare in secondary place.

(ii) F’s Failure to allow N to attend entrance examinations for two well known schools

45.  One of M’s allegations against F was that he did not allow N to sit for the entrance examinations of the Diocesan Girls’ Junior School (“DGJS”) and also the Diocesan Preparatory School (“DPS”) respectively in June and July 2008.

46.  When it was time for N to apply for a place at a primary school in 2006, it was not disputed that the first choice of both F and M was for N to attend DGJS. According to F, N was arranged to sit for an entrance examination for DGJS in 2006. F was in fact the one who went to obtain the requisite application forms for N at that time. Later, N was also arranged to sit for an entrance examination at DPS.

47.  It was also not disputed that M had asked F to move to Wanchai temporarily in order to provide N with an address nearer to her present school,which would enable N to have a better chance of gaining admission in case she failed to be admitted to DGJS or DPS. F did comply with the request and he moved to Causeway Centre in Wanchai. As it turned out, N was not accepted by DGJS, nor DPS, at that time, and N was later accepted by her present school.

48.  N then started attending Primary One at her present school in September 2007, and she has now just started the new school term for Primary Three.

49.  At end of June and July last year, M had wanted N to sit for examinations for DGJS and DPS again.

50.  F said N was doing well at her present school and had made good friends there and that N herself was reluctant to change school. F said that he only learnt on 29 June 2008 that M wanted N to sit for an entrance examination for DGJS the following day. He said N was highly stressed as she did not wish to change school. He then called M and discussed the issues and his concerns, but according to F, M told him that it was only a competence test, and that she would only change N’s school with her and F’s consent.

51.  F said he then agreed to N sitting for the test, but later N told him that she could not finish the test paper in time, and that she said it with a happy face which indicated that N herself did not wish to change school. Two weeks later, N told him that M was pushing her again to sit for another examination for DPS, N wanted her father to call and explain to her mother her wishes, which he did, but M was displeased and rude to him. According to F, M shouted at him and cut off the line.

52.  F pointed out that M did not bring up this matter during her interviews with the social worker Ms Puk. By all accounts, N is now doing well at her present school, with good academic results. She gets on well with her class mates, and she is particularly fond of sports. I have no reason to doubt what F said about why he did not allow N to sit for the examination for DPS. Even though the other two schools may be the parents’ preferred choice in the first place, and they are well known schools, N has now settled well in her present school. I accept F’s explanation as to why he did not allow N to sit for the second examination in July 2008 and I do not find M’s complaints in this respect justified.

(iii) N’s extra curricular activities

53.  M’s initial complaints in her 1^st affirmation was that F had cancelled the extra curricular activities she had paid for and arranged for N while N was under her care. Subsequently, during the trial, her stance seemed to be that F had enrolled N in too many activities.

54.  When N first moved to her father’s home, initially apparently there was some confusion as to what extra curricular activities she had been enrolled in and paid for by her mother. I accept that during a transitional period, it would not be unusual for there to be such confusion, and it was clear that any confusion was then later straightened out. During the trial, it transpired that M’s then complaint was that then there were too many activities arranged for N by her father. Although there had been an increase in N’s activities, these mainly took place during N’s recent summer vacation. This is understandable as most parents would enroll their child in more activities during long school vacations, particularly when the parents themselves are working full time.

55.  The only additional activity for N after the commencement of the new term appears to be her violin classes on Wednesdays. Having considered N’s daily schedule, I do not find that there are excessive activities for N.

(iv) N’s pocket money

56.  According to Ms Puk in her 1^st SWR, M ‘s salary was just over HK$40,000 per month and F’s salary at that time was HK$26,000 per month with 2 months’ year end bonus, and further F’s salary was due to be increased to HK$30,000 per month in April 2009. Both parties are capable to look after N financially. Since N moved to live with F, I understand that F has been responsible for her financial needs.

57.  One of M’s allegations was that F paid no attention to N’s needs at school, namely that F did not prepare any snacks for N nor did he give her any pocket money. M said that F did not care whether N had clothings of suitable size, especially underwear and school shoes, and he seldom bought new clothes or presents for N, not even on N’s birthday last year.

58.  Regarding the pocket money, F explained that N’s teacher had told him during a parent day in 2008 that primary one and two students are not encouraged to bring pocket money to school. F said although initially, when N moved to live with him, he was giving her HK$5 each day, later he decided to give her less, namely $3 a day, as N was often telling him that she had either lost the money or used up the money to buy snack. F said instead he encouraged N to save some money in a plastic coin bank that he bought her. In addition, during weekends, he would take N to supermarket and let her select the snacks to bring to school.

59.  There was nothing in the social welfare reports that N suffered from lack of nutrition or proper clothes. I do not find there was any sufficient evidence of any neglect on the part of F as alleged by M.

(v)  F’s unsatisfactory living environment

60.  M alleged that in July last year, the water heater in F’s home broke down and there was no warm water for N’s use, and it was not repaired for a whole week. M alleged that after N started living with her father, she would catch cold and sneeze easily, as F insisted on turning on the air-conditioner all the time. There was, however, nothing in the social welfare reports to indicate N was suffering from ill health and she is by all accounts a normal healthy girl.

61.  M had further complained that F’s then residence was showing signs of wear and tear.

62.  According to Ms Puk 1^st SWR, F’s previous residence in K Garden was kept tidy and clean, furnished with basic furniture and home appliances. Ventilation and lighting of the flat were satisfactory. There was no sufficient evidence to support M’s allegation of unsatisfactory living environment. The breakdown of the water heater was probably an isolated accident.

63.  Anyway, in February this year, F has already moved to another rented flat, also at K Garden. There are 2 bedrooms and F has his own bedroom and N shares a room with the domestic helper Andy. The flat is kept clean and tidy and is just 5 minutes walking distance from the MTR station. I am satisfied that F’s present living environment as reported in the 2^nd SWR is satisfactory.

(vi)  N’s birthday party in June 2008

64.  F organized a birthday party for N on 20 June this year. N invited her mother to the party. M then turned up with a present for N, and she stayed about 20 to 30 minutes. Before she left, she wanted to have a photograph taken with N, but this was not allowed by F, and M was then told her to leave.

65.  F’s explanation was that at the time N was playing a game with her friends, and he did not wish M to stop her in the middle of the game to have a photograph taken. F said he did not prevent M taking a photograph of N while N was playing the game, but M had wanted N to leave the game and to pose for a photograph with her. F said he had already allowed to M staying for half an hour, and when F tried to ask M to leave, she said something very impolite to him, and he said he then had to ask the staff to ask M to leave.

66.  Although N had invited M, M must be aware that at the time, her relationship with F was not particularly good. During the trial, M herself had admitted her insistence on having a photograph taken with N notwithstanding F’s objection would have resulted in N feeling disturbed. F had already allowed M to stay for about 30 minutes, and when it was clear that her presence was no longer welcome by F, to avoid any unpleasant scenes or embarrassment to N, M should have simply left. It was a regrettable incident, and in my view, both parents were at fault, and the person who ended up being most unhappy was N. In fact, N had mentioned this unhappy incident to Ms Puk, saying that her father did not allow her mother to join the event and asked her mother to leave .

(vii)  Circumstances under which Amy left F’s Home

67.  One of F’s complaints was the way Amy was removed from his home , which he said demonstrated M’s arrogance and inconsiderate behaviour.

68.  The incident took place in the evening of 5 November 2008, which was a Wednesday and M’s access day. M took N and Amy out to dinner, and Amy then returned to F’s home earlier. Then later, Amy telephoned M to ask her to to to F’s home immediately as F had called the police alleging Amy had stolen money. When M arrived, she said she saw many policemen, and N was present throughout, and T was also there. The police questioned the adults. F was alleging that HK$300 was missing and he suspected Amy of stealing the sum. The police then searched Amy physically and also her room, but did not find the HK$300. The police then recorded the incident and left.

69.  The incident obviously upset everyone, including Amy. F had asked M to take Amy away from his home immediately that night. M said she hesitated to do so and they then had a discussion. F’s eventual understanding that Amy would not be removed until the weekend, so that it would give F sufficient time to make arrangements for the care of N.

70.  However, the next day, 6 November 2008, while F was still at work, M apparently turned up at his residence, wanting to remove Amy immediately.

71.  M claimed that during the evening of 5 November, F had indicated that it would be fine if Amy were to leave immediately as he could arrange for his sister or T to help look after N. However, M admitted during the trial that during the course of that evening, the parties subsequently came to an understanding that Amy would only be removed during the weekend. I find M’s sudden change of mind by moving Amy the next day, notwithstanding the parties’ understanding, and well knowing that F had not yet made alternative arrangements for the care of N, was rather rash . Such action could not have been in the welfare or best interest of N.

72.  M said she tried to call F to inform him in the afternoon of 6 November but was not able to get through. M further said she went to F’s home to “calm” N and to tell N that she would remove Amy. M later corrected herself and said “calm” was not the right word, and she then tried to explain that N was scared at the sight of all the police the night before, and therefore she went to F’s home to ask N not to be scared and to tell N that she would be removing Amy. According to M, N told her she would be alright. N was only 7 years old at that time. M did not remove Amy that afternoon, but waited until the evening when F and T and N were all there. Then there ended up being another unpleasant incident when she tried to take Amy away, and the police was again called.

73.  I must say I find M’s explanations over her behaviour rather difficult to understand. She first said N was scared over the incident of 5 November when police came to F’s home, yet her actions the following day again led to police coming to F’s home again. I do find M’s sudden change of mind and her actions on 6 November rather inconsiderate particularly all this took place on a weekday during N’s school term.

74.  It was not disputed that Amy had previously borrowed money from a financial company in 2006 and when F found out, he had helped Amy paid off her loan and then Amy repaid to F by instalments. M was aware of F’s help at the time.

75.  Later, after Amy moved to F’s home, again there was another occasion which she borrowed from a friend. During the trial, F alleged that there was a third occasion and produced a document (R1) during the trial as evidence of Amy’s borrowings from a friend since August 2004. M admitted during the trial that she had not seen R1 before, but it appeared that the 2^nd and the 3^rd occasions were both loans made by Amy from the same friend with whom she seemed to have kept a running loan account. F apparently found out when her friend telephoned M’s residence to look for Amy to demand for payment, and was told to telephone F’s residence. Understandably, this matter caused F concern. It further appears that Amy did not disclose to M fully the extent of her loans from her friend. M had just renewed Amy’s contract and although F put to M that she told Ms Puk that she was using Amy was a “tool” and that she would dismiss Amy later, M denied this and claimed that she would not dismiss Amy. Later, when asked again by F why she would still employ Amy, M then said she would consider F’s opinion in this matter.

76.  M admitted during the trial that Amy’s borrowing was “not right” but said Amy did repay, and before M renewed Amy’s contract recently, she had told Amy that if Amy were to borrow money again, M would terminate the contract.

77.  Although Amy has looked after N almost since birth, N appears to be an adaptable girl. After Amy left F’s home, F has employed Andy to help him look after N, and it seems that N has got along well with Andy. Thus, in the event Amy were to leave M’s employment, if N ‘s care were to be with M, I believe M would be able to find another suitable helper to help with looking after N.

(viii) M’s low sense of child safety and child welfare

78.  F had made a number of allegations against M saying that M had a low sense of child safety and child welfare. By way of example, one of such allegations was that N used to sleep on a thin bed sheet next to a power socket and electric fan, and that her toes and long hair could easily become caught by the moving fan when asleep.

79.  M denied F’s allegations, saying they were petty and misleading. All these alleged incidents took place some time ago, before N moved to F’s home. I do not think it is now necessary to deal with each and every such alleged incident. Suffice to say, if F did have serious concerns over N’s safety or welfare while she was in her mother’s care, he should have applied for N’s care much earlier.

80.  M has also recently moved, and there was nothing in the social welfare reports to indicate that her living environment was not safe for a 8 year old girl.

H. THE CHECKLIST OF FACTORS

81.  I now come to consider some of the checklist factors referred to by the parties:

(i)  The ascertainable wishes and feelings of N

82.  The first time N was interviewedindividually by the social worker, Ms Puk, was on 27 November 2008. When N was asked to make 3 wishes, her first wish was “ to live with her mother”. She also mentioned that living with her mother was the happiest moment, and she showed a strong attachment to her mother. According to Ms Puk, N was scared of her father for his “easily red face when he was angry”, although N said she liked her father buying her toys and helped her revise her homework.

83.  N was interviewed individually again on 3 August 2009. When asked to rate “the best person in the world”, she rated her mother the first, her father the second, her youngest paternal aunt the third and her eldest paternal aunt the fourth. When asked about making her three wishes again, her first wish was that she would be able to live with her mother again. Secondly, she would want to raise a dog at home, and lastly, she hoped that her parents would not oppose to each other any more.

84.  Although N was only 7 when she was first interviewed by Ms Puk in November 2008 for the 1^st SWR and just 8 when she was interviewed again for the 2^nd SWR, according to Ms Puk, N is a very clever and an articulate child and very mature for her age compared to her age group, and she fully understood Ms Puk’s role. According to Ms Puk, she assessed that N was capable of responding to her questions and N was able to express her feelings. Further, Ms Puk said N knew clearly the disputes between her parents and the meaning of divorce.

85.  According to paragraph 20 of the 2^nd SWR, N was afraid to tell her father her wish to live with her mother as she did not want to upset her father. N showed a worried face if her father would know her wish and requested Ms Puk to tell her father on behalf of her. However, according to Ms Puk, N did not show strong resistance to be continued living with her father, if that were to be the order of the judge.

86.  I accept Ms Puk’s above evidence and I am satisfied that N’s wish to be with her mother is not merely a “marginal wish” described by her father, but a strong wish.

(ii)  Nature of N’s relationship with her parents and other persons

87.  I accept that N has bonded naturally and quickly with her father after she went to live with him, and that N showed no resistance to continue to live with her father, if that were to be my order. They also have a closely bonded and cheerful relationship. F further pointed out that N could talk to him as a friend or her equal, and one example was over M’s insistence to try to change school for N, and that N was distressed over this, and she told her father. I do not doubt N’s close relationship with her father.

88.  I further accept that the relationship between F and T is stable and committed. Although T has been spending a lot of time at F’s home, so far, up until the trial, there was no evidence that T and N had ever lived together as a household. However, I believe that they will be able to provide a harmonious household for N.

89.  N appears to be also close to two of her aunts. So far as Amy and Andy are concerned, N has a good relationship with both of them. As mentioned earlier, Amy started looking after N at about the time of her birth. I could not rule out the possibility that M may in future decide to terminate Amy’s services but I have said earlier that if this is the case, I believe M will find a suitable helper to replace Amy.

90.  It is, however, clear to me that the mother and daughter relationship is very close. Not only did N rate her mother as “the best person in the world”, but according to Ms Puk, N had expressed with for her mother’s “longevity” so that N could be with her forever. I further recall during the trial that M had told this court that when she visited N at F’s home, she would practise the piano with N and they would play the piano together.

91.  It is also clear from Ms Puk’s evidence and her reports that N has a stronger physical and emotional bonding with her mother, which has been long established.

(iii) N’ physical, emotional and educational needs and how capable F and/or T, or M, is of meeting N’s Needs

92.  F did not make any submissions on N’s physical, emotional or educational needs, nor did M’s solicitor, Mr. Lai. According to Mr. Lai, there was no evidence that N required any particular physical, emotional or educational needs.

93.  M had said that F’s job required him to travel overseas frequently and usually at very short notice, and M was left alone with Amy on one incident in July 2008. Even when F was in Hong Kong, M said he was unable to spend very much time with N as he was studying for a doctorate degree and had to attend at least two lectures a week.

94.  M had referred to an incident on 2 September 2008 when N slid in the bathroom and hurt her lips. Apparently, Amy tried to call F but F said as his mobile telephone was on ‘silent’, he did not hear or answer the call. Amy in the end call M who took N to a doctor. F blamed Amy for the incident, as he said he had previously instructed Amy when drying N after a bath, she should keep N’s hands free so that N could hold on to something to balance herself in case of any accident. M alleged that the bathtub had a leakage which resulted in the bathroom floor being slippery.

95.  F alleged N also had an accident near her eye area when she was living with her mother.

96.  Accidents do happen with young children. There was only one such accident during the past 18 months N was under F’s care. I am of the view that N having one accident does not mean that F is not able to look after N.

97.  F had also doubted whether M could be a good carer of N when over the 6 years when M was looking after N, F had received different complaints from M. M admitted that she might have from time to time grumbled about the difficulties she encountered in caring for N. I accept M’s explanation that it was natural for her to have felt frustrated from time to time, as she was only human.

98.  F further complained of M’s impatience and violent behavior. F alleged that M was often impatient in waiting for N for access, and that on some occasions, she would become violent and even kicked his door and yelled outside.

99.  It appeared that there was often delay in N being handed over to her mother during access. The situation became worse after M issued her present summons when the parties’ relationship further deteriorated. Sometimes, apparently, N would want to finish her homework on Sunday mornings before the Sunday access, and this had caused delay, and M would be kept waiting outside F’s residence for sometimes up to an hour and no doubt this had caused unpleasant incidents.

100.  M had denied that she had ever yelled at N or shouted to F in bad language in front of N as alleged or at all. However, N had told the social worker Ms Puk that her mother always used bad words to scold her father which she thought was not good. N said her father would not speak foul language of any kind. The words quoted by F and N, as having been uttered by M, whether in rage or not, were clearly inappropriate language which M should not have used within earshot of N.

101.  Notwithstanding the above allegations, what is clear is that before N moved to live with her father, it was M who had been responsible for looking after N’s daily physical needs, with a helper. After N’s move, F has been the one who has been looking after N’s physical needs, with his helper and now T. I am in no doubt that both parties are capable of looking after N’s physical needs, with their helpers.

102.  So far as N’s educational needs are concerned, before N moved to live with her father, it was mainly M and Amy who were supervising N’s homework. Up until about June last year, as mentioned earlier, M would go to F’s home to help N with her school work. F had shown this court N’s school handbook for the last term, and both F and M had signed as supervising parent, although there were times when there was no signature of either parent.

103.  M alleged that F seldom supervised N’s school work nor did he spend any time helping N with the revisions. F admitted under cross examination that sometimes he omitted to sign on N’s school handbook, but he said sometimes, M also left his home without signing N’s school handbook. I accept such occasional omissions by either parent to sign N’s school handbook did not mean that either of them had neglected N’s school work.

104.  M had also complained that during examination period in June 2008, F adopted a very un-cooperative attitude towards her when she was visiting N to help N in her school work. It was in about June 2008 when the parties’ relationship started to deteriorate, and F alleged that it was M who stopped going to his home to help N after M learnt of the existence of T. After T was introduced to N, and after M stopped going to his home, F said he and T would sit down with N every day to make sure N finished all her school work properly and they would help N on revisions for dictation, tests and examinations.

105.  Whatever the reasons were behind M stopping her visits to F’s home, fortunately, N did not seem to have suffered much academically from her parents’ discord. As reported by Ms Puk in her 1^st SWR, N had good academic results with either grade “A” or “B” in all the subjects for primary one, which would be from September 2007 to June 2008. During the trial, F had produced N’s school report for primary 2, which was from September 2008 until June 2009 (R5). Although N did have “C” in 4 subjects for the first term, which indicated perhaps she was doing less well, she soon picked up and had “C” in only one subject for the second term. Generally speaking, I am satisfied that so far either parent has been capable to help and supervise N in her school work, and that both are capable of meeting N’s educational needs.

106.  Further, Ms Puk reported that both parents were mindful of N’s development needs. Ms Puk has further said in the 2^nd SWR that both F and M impressed her to be child-focused and both have genuine concern to N’s development on the whole, not only on her academic achievements, but also they are receptive to learn effective ways in child discipline and parenting.

107.  M’s solicitor, Mr. Lai, had put it to the social worker Ms Puk that in a few years’ time, N would reach puberty, and that N would undergo physical and emotional changes during puberty and N would need guidance. Ms Puk agreed that generally a teenage girl would need a lot more female guidance like sex education, and a mother’s role in this respect will be beneficial.

108.  I have said earlier that T is an educated and intelligent lady. I accept that T was genuine in saying that she and N had become close. T said that N had on occasions called her “ma ma”. She said she was touched.

109.  During the trial, I had explained to F, M and also T that no matter what the outcome of this trial is going to be, N’s mother is M, and there should not be any confusion of roles in N’s mind. Thus, they should all agree as to how N should address T. After F and T consulted each other, T said she did not mind N just calling her name, i.e. T, and M agreed that this would be acceptable to her.

110.  I fully accept T ’s evidence that she had spent time playing with N, and they had enjoyed each other’s company. T told this court that Amy used to cook unhealthy food, such as preserved food, for N, and that now that they have a new helper Andy, T would instruct Andy to buy fresh food and cook healthy food for N. I do not doubt that T would be able to help F in caring for N if N were to remain living with her father.

111.  T met F in late 2004, and they have been having an intimate relationship for over 4 years. They were going to get married this December but now they have postponed the wedding to next summer. They now plan to get married in Canberra in July 2010 during N’s summer holidays.

112.  However, notwithstanding T ’s efforts and good intentions, it is difficult to replace a natural mother’s role, particularly in a case where the mother and daughter relationship is a very close one and established over a period of over 6 years.

113.  Although N has bonded quickly with her father after she went to live with him, according to Ms Puk, N has clearly longed to have a reunion with her mother.

114.  I find that both parents are capable of caring for N and meeting N’s educational and physical needs, but as for N’s emotional needs, the reality is that there is a very strong emotional bond between N and her mother, and N is now only 8 year old. As said by Hon Rogers VP in the case of Aslam v Ali CACV 144 of 2003 that “the position of a mother in the life of young children cannot be underestimated” (para 17). In that case, the children concerned were a girl of 8½, and two boys of 6 and 5 years old respectively. Hon Rogers VP has further said that the girl in that case also needed a mother’s attention. No doubt, the circumstances of each case may be different. However, in view of the very close relationship between N and her mother, and further in view of N’s age, I am of the view that M would be in a better position to meet N’s emotional needs.

(iv) The likely effect on N of any change in N’s circumstances

115.  Whether N continues to live with her father, or changes to live with her mother, she will continue to attend her present school for the time being.

116.  As the parties have now agreed to joint custody, any future change of school will be subject to both parents’ consent.

117.  F has submitted that N has made some good friends who are her neighbours. N and her friends would swim together and have barbecue together, and during weekends, N would spend time with F’s family and her friends and enjoyed all family activities and outdoor activities. F would be entitled to staying access if N were to move back to live with her mother, and there is no reason why N would not be able to maintain her relationship with her present neighbours and her father’s side of the family during access days.

118.  M has recently moved to a flat, which is 10 minutes walking distance to N’s present school.

119.  It is anticipated that N will continue to participate in most of her current extra curricular activities, although her mother is of the view that there may be too many activities.

120.  F has submitted that the N’s status quo should be maintained. F has submitted that removal of N from a home in which she has comfortably fitted in to a new environment which is different in its nature from that which she now inhabits will not be in N’s best interest, and F has referred this Court to the case of Chow Cheung Suk King and Chow Yan Piu CACV 180 of 1984. I have also been referred to the Judgment of Judge Melloy in Y and L FCMC 4933 of 2006. In Y and L, the girl involved was 8 years old and had been in the care of her father for about 15 months, having considered the facts of that case, Judge Melloy decided that as the then status quo had only been in operation for 15 months , less weight should be attached to it and ordered that the mother should have custody, care and control.

121.  As Hon Rogers VP has said in another case L and C CACV 333 of 2003 : The importance of status quo would vary from case to case ….There is no reason to suspect that if M’s proposals were to be accepted any change would be adverse of itself and hence the significance of the status quo is of very small importance. “(para. 17). In both Aslam and Ali, and L and C, the Court of Appeal made an order changing what was regarded as the status quo at the time of the appeal.

122.  I have mentioned earlier that M has been N’s primary carer since her birth, assisted by Amy, and prior to N moving to F’s home, she was living with her mother for 6 years and 8 months. By comparison, N has only been living with her father for about 18 months. Although M has now moved to another flat, the care arrangements of N will not be affected. F himself has also moved flat earlier this year. I do not find that there is sufficient evidence that a change back to living with her mother would be adverse of itself. N will simply revert to a former status. I do see any reason for concern over any disruption if N were to be required to move again, particularly when she adjusted rather well moving from her mother’s home to her father’s home.

I. SOCIAL WELFARE REPORTS

123.  I have accepted some of Ms Puk’s evidence as set out earlier. F has attacked Ms Puk’s evidence and submitted that she had been selective in deciding what to include in her report and what not to include. F gave a number of examples which Ms Puk did not include in her reports.

124.  F had also attacked Ms Puk’s two reports in that, according to him, they contained lots of inconsistencies and inaccuracies.

125.  F pointed out that Ms Puk did not confirm M’s working hours with her supervisor, nor did she find out M’s parents’ health condition. These were reasons given by M for agreeing to N moving to live with F. F, however, did not accept these reasons, and his case was that M was in fact agreeing to N moving to his home for M’s own reasons. In this respect, I have already found earlier in his favour. Even though Ms Puk did not confirm M’s present working hours with her supervisor nor did she find out about M’s parents’s health, I find that there is no sufficient evidence that these matters will affect M’s ability to care for N, if N were to return to live with her mother.

126.  F complained that Ms Puk did not check if M had a tenancy agreement in relation to her new residence. This arose because M initially told Ms Puk to keep her new address confidential. However, during the trial, M decided to disclose her address. Ms Puk told the Court that she had paid a visit to M’s new home and stated that M’s new flat is 632 square feet, with two bedrooms. It is not F’s case that M is not financially capable of providing accommodation for N, and I accept M’s evidence that she has moved to a new flat near to N’s school. If in future it turns out that M had misled the Court in any way, no doubt F could then inform the Court.

127.  Ms Puk joined the Social Welfare Department in December 1993 and has been transferred to the Children Protection Unit in October 2007, She has dealt with about 20 custody dispute cases. She is thus an experienced social worker. She also confirmed that she had read all the affirmations/affidavits filed by the parties.

128.  During the trial, F had put to Ms Puk the matters which she failed to include in her reports. Notwithstanding what F had put to Ms Puk, she maintained her recommendations. F has referred this Court to paragraph 24 of the Court of Appeal case of WSM v FSY CACV 352 of 2004 in which it is stated that “a social welfare report is not a special category of material information, nor should recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted”.

129.  As stated in s. 3 of the Guardianship of Minors Ordinance, this Court shall give due consideration to any material information including any social welfare report. Although there could be some inconsistencies and inaccuracies here and there, as pointed out by F, I am of the view that these would not have affected the results of the tests or questions she administered to N. Ms Puk maintained her recommendations during the trial.

J. OTHER CIRCUMSTANCES

130.  Although M had alleged there were previous incidents of violence by F during the marriage, this was strongly denied by F. Anyway, it seems that after their separation until middle of last year, the parties’ relationship was at least cordial and amicable until the recent dispute, and I therefore do not believe that there had been any serious incidents involving violence since the parties’ separation. Further, there is no evidence that N will suffer any harm, whether she were to continue living with her father, or move to live with her mother.

131.  F has complained of M constantly changing her mind regarding N’s custody, and this demonstrates M’s unreliability and irresponsibility. I agree that there could have been causes for F’s complaints, but ultimately, M is prepared to accept Ms Puk’s recommendation of her having joint custody with F, I am of the view that M’s change of mind would not affect her overall ability to care for N.

132.  F has also alleged that M was dishonest over Amy’s constant borrowings. During the course of the trial, M did indicate that she would consider F’s views over Amy, and F further indicated that if necessary, he could ask Andy to help M in looking after N. I am pleased to note F’s reasonable attitude . In any event, in case F changes his mind, I have said earlier that I believe if M were to terminate Amy’s services, she would be able to find another suitable helper to help her in looking after N.

K. N’s WELFARE AND BEST INTERESTS

133.  This is by no means an easy case. As reflected in the SWRs, since the parties’ separation, the parents did cooperate smoothly to shoulder their parental responsibilities and to jointly discuss the N’s affairs throughout the years until the present application. Ms Puk has reported that both parents have a caring and patient attitude over N.

134.  The parties have now agreed to continue to have joint custody.

135.  Both parents are clearly loving parents. In a way, I sympathize with F in that he has been a responsible father and he has tried his best to look after N. He has provided well for N’s well-being, development and education, and a good routine for N. The factor which tilts the balance in M’s favour in this case is really the strong emotional bond built up between N and her mother since N’s birth. This was mainly because M was her primary carer since N was born, particularly when F moved out 3 months after N’s birth. This is a reality that F could not now change even though he did visit N regularly at M’s home after moving out. Moving to live with her father has clearly not affected the strong bondage between N and her mother, and her close attachment to her mother, and, in particular, N has maintained throughout her wish to be reunited with her mother. N is of course only 8 years old, and looking at a longer term, with N reaching puberty and teens, I agree with Ms Puk that her mother may be in a better position to provide for her needs.

136.  Having considered all the above circumstances, and the best interests and welfare of N, I am prepared to grant M’s application for N to move back to live with her mother.

L. ORDER

137.  My order is thus:

(i)  The parties shall continue to have joint custody of the child of the family.

(ii)  Paragraph 1 of the Consent Order of 31 January 2008 is varied and that the Petitioner shall have the care and control of the child.

(iii)  The child shall move back to the Petitioner’s home on or before 1 November 2009.

(iv)  The Respondent shall have reasonable access to the child, including the following:

(a)  Day access every Wednesday from 7pm to 10 pm;

(b)  Staying access on the child’s alternate short weekends (i.e when there is no school on alternate Saturdays) of each month from Fridays 7 pm to Sundays 11 am;

(c)  Consecutive staying access over half of the child’s school holidays including but not limited to Christmas, Chinese New Year, Easter and summer holidays, dates and time to be fixed between the parties.

L.  COSTS

138.  In children’s case, there is a general principle that there be no order as to costs, unless one party has been unreasonable in the conduct of the litigation. I do not find that there has been any evidence of either party being unreasonable, and I therefore make no order as to costs, including all costs reserved. This is an order nisi, which will be made final within 28 days, unless written objection is received before the expiration of this period.