NAV v. JTMW

FCMC 4191 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4191 OF 2012

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DECISION
(Non-molestation Order and Interim Care and Control and Access)

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1. This is yet another clash between the parties regarding the 2 children of the family.

2. On 29 October 2014, on an ex parte application taken out by the respondent father (“R”) with notice to the petitioner mother (“P”), and after having heard the submissions of the parties’ legal representatives, I granted an order that:

1.	The previous care arrangements of the children under a 5-day/5-day care system (“5/5 day system”) be suspended until further order;
2.	The interim care and control of the children be granted to R;
3.	The interim access to the children twice a week for not more than 3 hours each be granted to P; such access to be supervised by a social worker of the Neighbourhood Advice-Action Council or the Social Welfare Department until further order;
4.	A clinical psychologist’s report and an updated social welfare report be submitted within 3 months;
5.	P be restrained from assaulting, molesting, harassing, threatening, or in any manner causing physical and/or bodily harm to the children;
6.	P be restrained from taking the children to see any psychologist or psychiatrist or any form of medical consultation without a court order or R’s prior written consent, except for any emergency medical treatment;
7.	The trial on P’s relocation application be vacated and adjourned to new dates; and
8	That the children’s passports and all other travelling documents be delivered by P to her solicitors until further order;

3. On the return date of the summons on 12 November 2014, P seeks for principally the restoration of the previous 5/5 day system care arrangement for the children and she wishes to retain the children’s passports.  On the other hand, R seeks for the continuation of the orders until the conclusion of the trial on the children’s matters.

Background to the Ex Parte Application

4. As I have been living with this case for nearly 2 years, I am well familiar with the factual background and the previous course of the proceedings.  For the purpose of this application, I do not think I need to rehearse them here.  Suffice for me to say is that this family has two sons, the elder son L is now 7½ years old and the younger son B is now 4 years 8 months.  Before the Order of 29 October 2014, they were under the care and control of their parents on essentially an equal-split basis, referred to as the 5/5 day system in this Decision.

5. Shortly before R’s ex parte application for the non-molestation order, a Ruling was handed down on 23 October 2014 dismissing P’s application for the appointment of 2 single joint experts:  the first a psychologist and the other an immigration expert.  Such application was made in relation to P’s application for permanent relocation to her home country. Her application for permanent relocation was due to be tried on 5 November 2014 (with 5 days reserved).

6. The ex parte application was made just before R was to return the children to P under the 5/5 day system.  The essential ground was that P had committed physical violence towards the children.

7. What triggered the application was that when R collected the children on 14 October 2014 for his care and control, L told him that he did not want to return to P as he was very scared that P would hit him more.  He learned from L that the night before P had hit him 10 times with a closed fist on his head, 5 times on each side of his head around the temple area.  This was the punishment for L writing to his father on his iPad while under P’s care.  At the same time, B also claimed that he had also been hit many times on his throat.  Both children told their father that it was the worst week ever as they were being hit many times.  Both did not want to go back to their mother.  They had to say “yes” to the relocation, otherwise P would hit them more.  When R helped the children shower he noticed bruises and a scratch on L’s right arm.  L said the injury was caused when P grabbed and pinched his right arm after she had hit his head the previous night. 

8. R said the children continued to receive corporal punishment between 19 October 2014 and 23 October 2014 when they were under the care of P.  Two scratches on L’s right lower arm were found, and according to L, the injuries were inflicted when P squeezed his arm with her hand whilst pushing her thumbnail into his skin.  Both children said P hit them again many times during their time with the mother.

9. There was also an allegation that according to B, P told him that she might be killed if she stayed in Hong Kong.  R suggested that it was an attempt on the part of P to try to poison the children’s minds so that she would be able to indoctrinate and sway them so that they would agree to relocate with her. 

10. R also referred to some incidents of abuse back in June 2013.  He said the situation was escalating while P was pressing on her application for relocation.  The situation had come to an alarming one where the children were no longer safe in the care of P without supervision. 

11. R also found out from the children that P had taken them to see a lady whom he believed was a psychologist or a psychiatrist.  This happened before the Ruling on her application for Single Joint Experts were handed down on 23 October 2014.

12. Incidentally, at about the same time the court was approached by the principal of the school where the children were attending.  By a letter of 27 October 2014, the principal took the initiative of expressing the school’s concern about what the children had said about P since the start of the school term in September this year.  The principal also mentioned in the letter that she was “a little fearful that (P) may further hit or threaten the children knowing they have disclosed such”.  Attached to the letter were 6 incident reports prepared by the teaching staff of the school recording what the children had said or behaved.  For instance, it was reported that in the morning of 15 October 2014, B said to his teacher that he did not like to go with his mother “because she always hits me and (L)”.  B was also reported to have told his teacher that “I feel sad when my mummy shouts at me” and drew a picture of himself crying.  Another occasion was on 9 October 2014 when B said “Mommy is very bad because she hits (L) and me.  She puts her hand across our face, (L) and me”.  L was also recorded to have said “I love my dad but I don’t love my mum”.

13. With the evidence before me, in particular the letter and the incident reports from the school, I was of the view that there was a prima facie case that there was an imminent risk to the children’s safety for the reason that they might have been subjected to some form of physical violence.  The children’s best interests were the first and paramount consideration.  I therefore gave the orders as set out in para 2 above.

P’s Response

14. P and her boy-friend T have filed their affirmations in opposition to R’s application for the continuation of the orders. They give an entirely different picture.  

15. P denies that she has been physically abusive to the children. Indeed, all the incidents of physical abuse are denied.  She explains that the bruises on L’s arm were a result of being hit by a friend while playing in the pool on 11 October 2014, playing on the beach on 12 October 2014 or falling off the bike on 13 October 2014.  The marks on L’s arm were the result of T playing an ‘airplane’ game with the children on 19 October 2014.  There is nothing serious as the boys are normal ‘rough and tumble’ boys.  She denies she was angry with L or having yelled at the boy to go to bed on the night when L tried to speak to the father.  During her care and control, the children were happy and affectionate to her as before.  She never talked to the children on the relocation issue; it was R who talked to the children about it.

16. She however admits that the children saw her psychologist on 22 October 2014 but it was a mere coincident.  It just happened that the children were under her care on the date of the appointment.  In any event, the psychologist talked to L on sibling rivalry only.

17. T says over the last few months, he had spent over a week with the children and P.  What he saw was the children were happy and excited while staying with the mother.  There was absolutely no conflict between the mother and the children and he describes the relationship as one of harmonious and affectionate.  He has never seen P using corporal punishment on the children; and there is no suggestion that the children are frightened of their mother.

P’s Submissions

18. Mr Coleman SC, for P, stresses that it is now for the first time that the court hears R’s application on an inter parte basis.  The court should deal with the application from scratch because it is the first time that the court deals with it on an inter-parte basis.  It is fundamentally wrong to say that since the court has given the same orders on an ex parte basis, the same orders should continue unless P is able to convince the court.  The burden remains on R, being the applicant, to satisfy the court that he is entitled to the orders prayed for. 

19. Mr Coleman also emphases that despite the ups and downs, the 5/5 day system had been in place for the last 2 years, what is now being sought by the father is a fundamental change in the arrangement.  P is demoted from a position of an equal full time parent to someone with a few hours of limited access under supervision from the social welfare officer (“the SWO”).  This impacts on the children’s relationship with the mother and this is not beneficial to them.

20. Mr Coleman gives a close scrutiny on R’s evidence which he says reveals repetition, confusion, obfuscation and exaggeration in large measures. The totality of the evidence does not provide a proper basis to change the existing arrangement. 

21. Despite R’s concern regarding the so-called ‘abuse” P allegedly inflicted back in June 2013, as of January 2014, R still conceded that joint care and control would cause the least disruption to the daily routines of the children.  Even in September 2014 when R raised the possibility of having ‘sole custody and care and control’, he did so only as a response to the relocation application and on the basis that the mother would have left Hong Kong on her own.  The events in June 2013 therefore cannot possibly justify the sudden change of the care and control arrangement now being sought by the father.  The recent injuries relied upon by R were not the result of physical abuse.  For instance, the bruises on L’s arm were a result of a minor accident on 13 October 2014 when L fell off his bicycle.  R has exaggerated isolated incidents, amplifying the severity of minor incidents which are a far cry from ‘child abuse’.  Even R in his 15^th Affidavit in opposition to P’s application for Single Joint Experts said that the children have shown no abnormality. 

22. In the present case, the court must consider the importance of the mother and child relationship both in general, and specifically in relation to P and the children.  Apart from allegations of abusive behavior of P – which are unfounded – R has never suggested that P is a bad mother.  Due to R’s work, he has to be away from Hong Kong on rotational basis.  He is highly dependent on his domestic helper but it has been observed by the Court of Appeal that hired help can be no substitute for a mother:  R v Y [2010] HKFLR 492 at Para 17 (per Rogers VP).  Granting care and control of the children to the father is in effect granting the majority of care and control to R’s domestic helper, and to the exclusion of the mother.  It is contrary to authority and logic and is unduly oppressive on P, and also not in the children’s best interest.  It may also have a deleterious effect on P’s relationship with the children.

23. Mr Coleman also submits that the children have been excelling at school and are found to be happy and healthy.  These are not descriptions of abused children.  They defy R’s suggestion that the children have been subjected to sustained abuse. 

24. The school incident reports contain indirect expression of views by the children only.  The court must be very careful with the views for the reason that a young child is unlikely to be mature enough.

25. Also, the evidential value of the school materials is very low.  The principal has no personal knowledge on the matters.  All of the incident reports (save for those undated) relate to alleged incidents which occurred when the children were in the father’s care, or on a changeover day when the children would understandably have mixed feelings.  None of the incident reports are contemporaneous documents and at least one of the reports simply cannot be an accurate record.  All of the teachers who submitted the incident reports found that there was no “Action to be Taken” and the court is told nothing of the qualifications of any of the teachers. The reports appear to have been solicited, as though the result of a decision to try to build up a picture. 

26. Further, R chose not to report the matter to the police despite his allegation of the severity and urgency of the situation.

27. Mr Coleman also draws my attention to the evidence showing the intimacy of the mother and sons’ relationship.  He also draws the distinction between child abuse and corporal punishment.  P may appear to be more firm and regimented with the children and this is simply a matter of a difference in parenting styles.

28. Finally, P is willing to seek counselling to assist her in coping with the stress involved in the present situation, but it is wholly disproportionate a reaction to rescind the long-term shared care arrangements.

29. Mr Coleman therefore concludes that it is the best interests of the children to return to the status quo before the orders.

R’s Submissions

30. Ms Irving, for R, submits that the court’s first responsibility is to act to protect the children and not to take risks, until the truth of the matter has been established.  The court has ordered for an up-dated Social Investigation Report and a Clinical Psychologist Report. Pending investigations by these professionals, there is enough to raise concerns that the children were exposed to inappropriate and frightening conduct from P when they were with her.  She stresses that it is not a case where one party has come forward alleging abuse of the children, with the complainant being the only source of any accusation, in what is a litigation tactic.  In the present case there are several sources of information made available to the court.  The first is from the children.  The second is from the SWO who said more than 2 months’ ago that the children were scared of their mother and the third source is from the school.  The school has come forward because the situation is escalating. She accepts that the matter has not been put to the test, but there is sufficient information before the court for the court’s protective functions.  She argues that realistically, in order to provide the necessary protection for the children, the only order that can be made is to continue the orders of 29 October 2014.

31. Further, as has been reported in the previous SWO reports, R all along has preferred to have sole care and control. He should not be criticized to seek for sole care and control now.

32. In reply to Mr Coleman’s criticism that the care and control is in effect given to R’s domestic helper, Ms Irving submits that the issue is whether the care and control should be given to P.  There were also 2 occasions when P chose to go for holidays when R was working and left the children to the care of the helper.

Discussions

33. As in all custody and care and control matters, the welfare and best interest of the children are of paramount importance.

34. It is to be noted that the SWO also recorded that the boys had said to her that they were scared of their mother “because she became angry easily when they had troubles”.  And the mother becoming angry easily and “screamed, yelled and shouted at them for no reason”.

35. R was also concerned about P hitting the children way back in June 2013 when by his summons of 3 July 2013 he asked that P be restrained from physically abusing the children but P refused to give an undertaking not to use corporal punishment, as this was a method of discipline that was sometimes required “as a last resort”.

36. Mr Coleman’s forceful challenge on the school’s incident reports is certainly valid but the accuracies and the reliabilities of the reports would have to be tested and determined at the trial when the court hears the evidence of the witnesses, including possibly the teachers who prepared the reports.

37. As of now, I consider that prima facie at least on the evidence before me, matters have now gone beyond anything that could be interpreted as discipline.  The fact that the school chose to voice out their concerns is alarming.  Normally, schools very seldom become involved in these matters, preferring to remain neutral for the sake of the children. 

38. I am told by Ms Irving (not objected to by Mr Coleman) that the Social Welfare Department has taken the initiative to report the matter to the police and R has just given a statement to the police.  The children will soon be interviewed also.  It is clear that the matter is evolving and the outcome of the investigation is yet to be seen.  At this stage, pending investigations by the social welfare officers, the clinical psychologist and the police, I cannot simply dismiss it as a misunderstanding or something fabricated or a matter of mere imagination.

39. I have no doubt that given the evidence as they are now before me, there are significant issues concerning the way P was conducting herself in relation to the children.  It has to be borne in mind that what are being dealt with are some interim measures pending the final determination of the relocation and the custody and care and control of the children.  When it comes to the trial of these issues, all the allegations in the present application will be heard and determined.  I agree with Ms Irving that what I need to do is to protect the children.  Their welfare is the court’s paramount consideration.

40. It is true that R’s work necessitates his absence from Hong Kong from time to time but the evidence suggests that P also relied on the help of this helper even when she was away from Hong Kong.  It also appears that so far the children have been well taken care of.  Ultimately it is a balancing exercise, and given that what is in place is an interim measure, I am favour of keeping the orders of 29 October 2014.

Orders

41. For the above reasons, I give an order in terms of paragraph (a) of the respondent’s summons dated 29 October 2014.

42. Costs are reserved with certificate for counsel.