HYK v. WLS

FCJA 59/2021

[2023] HKFC 104

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 59 OF 2021

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J U D G M E N T
(care and control, and access issues)

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1.  For the ease of reference, I shall in this Judgment call the 1^st Applicant as the “Father” whereas the 2^nd Applicant as the “Mother”.

2.  The trial relating to care and control as well as access issues were held on 19^th to 22^nd October 2021 and 26^th November 2021.  At the trial, the Father was represented by Mr. Alvin Cheng (“Mr. Cheng”), Solicitor, whereas the Mother was represented by Mr. Ken Chan (“Mr. Chan”), Counsel.

The Witnesses

3.  In this five-day trial, the following witnesses had in turn testified: -

(a)  Mr. Lai (the “SWO”), the Social Work Officer preparing the relevant Social Investigation Reports (“SIRs”);

(b)  The Father himself;

(c)  Madam WSH, the mother of the Father (“the Paternal Grandmother”);

(d)  The Mother herself;

(e)  Madam SKC, the stepmother of the Mother (“Madam SKC”);

(f)  Mr. WKS, younger brother of the Mother (“WKS”); and

(g)  Mr. WKF, younger brother of the Mother (“WKF”.)

The Background of the Family

4.  The trial concerns the following children of the family (hereinafter collective called the “Children”): -

(a)  HLL, girl, born on 3^rd October 2011;

(b)  HTY, boy, born on 31^st July 2013; and

(c)  HTC, boy, born on 13^th September 2015.

5.  The Children have their respective special needs and suffer from different illnesses respectively, namely: -

a.  For HLL: -

Problems and disabilities: 專注力不足、過度活躍、自閉症

Medical Treatments required: 精神科、耳鼻喉科、營養服務、兒科、物理治療、骨科

b.  For HTY: -

Problems and disabilities: 自閉症及弱能

Medical Treatments required: 臨床心理學服務、職業治療、兒科、呼吸內科、義肢及矯形、營養服務、言語治療

c.  For HTC: -

Problems and disabilities: 語言理解、表達能力緩慢

Medical Treatments required: 臨床心理服務、精神科、兒科、特殊幼兒訓練、言語治療、物理治療

6.  The Father was born in January 1976 and is now 47 of age. On the other hand, the Mother was born in March 1978 and is now aged 45.

7.  Both of the parties were born in Mainland China.  The Father came to Hong Kong permanently in 1981 and started his education here until he got his Diploma in Computer Studies.  After graduation, the Father started working in computer related jobs in Hong Kong.

8.  According to the available information, the Father was the time of the trial still working on a full time basis.  He worked from Monday to Friday from 8:30 am to 6:00 pm where he will be off duty on Saturday and Sunday.

9.  The Mother came to Hong Kong in 2000 from the Mainland.  She previously worked as a private tutor in Putonghua and Chinese.  She said she quitted all her jobs in July 2019 (i.e. shortly after the Father had filed the Petition for divorce in FCMC 6334 of 2019 on the basis of the Mother’s behaviors)  but this is not accepted by the Father.

10.  The parties were married on 23^rd July 2010 in Hong Kong and separated on 1^st January 2019.

11.  In 2021, the parties reached agreement to file a fresh joint application in these proceedings on the basis that they have already lived apart for not less than 1 year.

12.  Since the marriage and until around September 2019, the family was residing at the matrimonial home in Wong Tai Sin (the “FMH”).

13.  In around September 2019, the Mother attempted to bring the Children away from the FMH, which resulted the Father’s ex-parte (with notice)  application for order prohibiting the Mother from doing so.

14.  On 13^th September 2019, HHJ C.K. Chan granted interim custody care and control of the Children to the Father and prohibited the Mother from removing the Children from the FMH.

15.  Afterwards, for a period of time, the Mother moved to a rented flat in To Kwa Wan (the “TKW Flat”).

16.  Subsequently, the Mother moved back to the FMH.  It is the Father’s complaint that since the Mother’s return to the FMH, she always brought the Children outside the FMH and only returned them late during the day.

17.  The Father has produced 2 schedules setting out the dates and times that the Mother had brought the Children away.  The Father complained that, by doing so, the Mother had effectively deprived him of the opportunities to take care of the Children.  The Father criticized that the Mother’s such moves are tactical.

General Principles Relating to Children of Family

18.  At the Children Dispute Resolution hearing before DDJ T. Kwan, as she then was, the parties had already agreed that the parties should have joint custody of the Children.

19.  In relation to the meaning of “care and control” and how it is different from “custody”, the Hon Hartmann JA (as his Lordship then was)  in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at [31-32] had very detailed elaborations: -

“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 moulding 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.”

20.  As regards the concept “access”, the Hon Hartmann JA had also elaborated its co-relation with “care and control” in PD v KWW (Child: Joint Custody) at [43] as follows: -

“43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control. This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody. Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child.”

21.  As regards how the issues of custody, care and control as well as access should be determined by the Court, section 3 of the Guardianship of Minors Ordinance (Cap.13, Laws of Hong Kong)  (“GMO”)  )  (as amended and came into operation on 13^th April 2012)  provides: -

“(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 — (Amended 1 of 2012 s. 4)

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (Amended 1 of 2012 s. 4)

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

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father; (Replaced 69 of 1982 s. 2)”

22.  Section 48C of the Matrimonial Causes Ordinance (Cap, 179, Laws of Hong Kong)  (“MCO”)  provides: -

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

23.  As Mr. Cheng for the Father rightly pointed out in his Opening Submissions, while “welfare” under section 3 of GMO had long been amended and replaced by “best interests”, there is no corresponding amendment to section 48C MCO.

24.  In any event, it seems that nowadays, the “welfare” concerning minor/child in divorce proceedings in courts in Hong Kong shall also be understood as the “best interests” of the minor/child concerned.

25.  As Mr. Cheng submitted, according to Rayden and Jackson on Divorce and Family Matters, the word “welfare” has similar meaning with “best interests”, which is interpreted as follows: -

“The word ‘welfare’ must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only, the moral and religious welfare of the child must be considered as well as his physical well-being, nor can the ties of affection be discharged. ‘Welfare’ and ‘best interests’ are synonymous.”

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

27.  Both Mr. Cheng for the Father and Mr. Chan for the Mother referred to the checklist adopted by Jeremy Poon J (as Poon CJHC then was)  in H v N (Children: Variation of Interim Order) [2012] 5 HKLRD 498 is set out as follows: -

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

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

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

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

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

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

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

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

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

(j)  (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; and

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

28.  However, as also expressed in H v N, although Jeremy Poon J (as Poon CJHC then was)  endorsed the practice of making use of the welfare checklist, there were three caveats, in particular it is not compulsory for our courts to have regard to the “welfare checklist” and that it is an aide-memoire (endorsed by the Court of Appeal (Lam VP (as Lam PJ then was)  and B Chu J)  in ZJ v XWN [2018] 3 HKLRD 644 at [25]).

29.  Further, as expressed by the Court of Appeal in ZJ v XWN (at [28]), it is not mandatory for a judge in Hong Kong to set out the welfare checklist mechanically item by item to demonstrate that he/she has considered the same.

30.  There is suggestion that the Court shall not mechanically fit into these brackets when determining what are in the best interests of the child concerned.

The Social Investigation Reports

31.  As mentioned hereinabove, section 3 GMO requires the Court to have regards to, amongst others, any report of the Director of Social Welfare.

32.  Moreover, it has repeatedly been said that social investigation reports generally provide the court with much needed background information on cases related to children. Social Welfare Officers are said therefore to be the “eyes and ears” of the court.  They make recommendations for the court’s consideration, but the court is not bound by those decisions.  However, if a court decides not to adopt those recommendations then reasons should be given (see for example HHJ Melloy in MT v HYC [2020] HKFC 55 at [8] and Her Honour in NKM nee SKM v NGR (unreported, FCMC 14652/2007) at [16]).

33.  By the time of the trial, two social investigation reports (both of which were prepared by the SWO)  had been submitted to the Court, namely: -

(a)  The social investigation report dated 22^nd November 2019 (the “1^st SIR”); and

(b)  The updated social investigation report dated 3^rd December 2020 (the “Updated SIR”).

34.  The SWO had also given oral evidence during the trial.

35.  In the present case, the parties have agreed that they should have joint custody of the Children.  I have also seen evidence that the parties have attended consultations and courses for co-parenting.  The Court does appreciate that the Father and the Mother are willing to co-operate with the each other for the best interests of the Children.

36.  Nonetheless, despite that the parties had gone through mediation and Children Dispute Resolution hearing (before DDJ T. Kwan, as she then was), the parties were still unable to come to an agreement on the arrangements regarding the care and control as well as access concerning the Children.  By the time of the commencement of the trial, what the parties were able to agree were (1)  joint custody of the Children; and (2)  long holidays of the Children should be shared by the parties equally.

37.  In the Updated SIR (at [26]), the SWO made the recommendation that interim care and control of the Children be granted to the Mother on a trial basis for 9 months and where the Father should have defined access to the Children as the parties had agreed in the Mediation Agreement.

38.  At the trial, the Court had tested the validity of his recommendations and desirability of the “test run” of his recommendation.  The Court had also specifically asked the SWO what would the alternatives be if his recommendation does not work out.  The SWO acknowledged that one of the possibilities is that the Children returning to the FMH and be placed under the care and control of the Father.

39.  The Father now sought to convince the Court not to adopt from the recommendations of the Social Work Officer.  It is the Father’s position that the Court should depart from the recommendations made in the Updated SIR and grant care and control of the Children to him.

40.  On other than hand, the Mother maintained that the Court should adopt the recommendations and grant care and control of the Children to her.  The Mother stresses that the views of the Children should be respected.  The Mother also places emphasis on the past history of the caring of the Children.

41.  The Father submits that the status quo should be maintained in order to create less disturbance to the Children and in particular in the light of the Children’s physical problems.

42.  The Father further submits that the best arrangement for the family and that the Father should have care and control of the Children for the following specified reasons (as stated by Mr. Cheng in the Father’s Opening Submissions): -

(a)  The Father and his family have a good relationship with the Children and have been taking good care of them compared with the Mother.

(b)  The Father is a more caring and patient parent and good role model than the Mother.

(c)  The Mother had the previous record of unilaterally bringing the Children away from the FMH, causing the Father to take out the ex-parte application.  Furthermore, after the Order of 13^th September 2019, the Mother suddenly and tactically moved back to FMH and occupying almost all the times with the Children.  The Father also says that the Mother has tried very means to “keep” the Children with her and tried to handle and deal with all matters of the Children on her own without informing the Father or his family.  She is trying to exclude the Father from involving in taking care and development of the Children.

(d)  The Mother also purposely not agreeing to any access arrangement in the Mediation Agreement in the event that the Father shall have care and control of the Children.

(e)  The Father has a supporting family who is willing to help and assist the Father to take care of the Children.

(f)  The Father’s living environment is more stable and suitable for the upbringing of the Children.  It is not even known where the Mother intends to move to live with the Children if care and control is granted to her.

(g)  The Father has a more stable job and financial condition.  He has no debt or liabilities.  The Mother claims that she is not working and is relying on borrowings and government subsidy and she has debts to repay.

43.  At this juncture, it should be noted from the SIRs that HLL was not in good relationship with the Father but there are indications that their relationship is in the course of improving since the commencement of these proceedings.

44.  In the 1^st SIR, the SWO could not make any recommendation because he said he needed more time to investigate after the parties had finished the co-parenting course.

45.  In his 2^nd SIR, the SWO then made the recommendation that interim care and control of the 3 Children be granted to the Mother for 9 months for her to try whether she could take care of the 3 Children after they moved out of the FMH.

46.  However, both the Father and the Mother did not accept his recommendation.

47.  The Father refused to accept for the obvious reason that he was of the view that the 3 Children should be allowed to continue to reside in the FMH under his and his family’s care and control but not to run the risk of a trial period of 9 months by the Mother as recommended by the SWO

48.  On the other hand, the Mother refused to accept the recommendation solely because of the fact that if she accepted the recommendation, she would not be able to apply for CCSA and public housing unit.  Honestly, while I cannot say that the Mother’s reason for unaccepting the SWO’s recommendation entirely unreasonable since she would also have to provide accommodation for the Children insofar as she might have staying access to the Children, I do have doubts as to whether the Mother’s reason is given in view of what is the best interest and welfare for the Children.

49.  In the meantime, some of the oral evidence of the SWO as follows should have bearings on the Court’s decision in the matters: -

(i)  The SWO agreed that he made the recommendation when the Mother was not even telling him her proposed residence if interim care and control was granted to her for 9 months.

(ii)  The HLL’s relationship with the Father had improved a lot between the 1^st and 2^nd SIRs and it was also confirmed by the SWO when being asked in the box that HLL was listening and obeying the Father’s instructions.

(iii)  In relation to the Children’s preferences, while HLL wanted to live with the Mother, HTY wanted to live with the Father and the SWO said HTY was so attached to the Father as he liked the Father so much (唔肯走)  and HTC did not mind living with the Father or the Mother but he wanted to live with HTY.

(iv)  The Father’s family has given a lot of support in taking care of the 3 Children and that the Mother would feel lack of strength “吃力” (and in the exact wording used by SWO at his oral evidence “捉襟見肘”)  in the caring of the Children if no such support was from the Father’s family. In fact, this was reflected on number of aspects of the Mother’s caring of the Children.

(v)  The SWO further commented that in this case, he strongly feels that the Mother must need support in taking care of the 3 Children “佢一定要人幫手，我強烈感覺”.

(vi)  HTY and HTC were very closed to the Paternal Grandparents (好黐住爺爺嫲嫲).

(vii)  The SWO also agreed that his recommendation of interim care and control of 9 months to the Mother is a trial and experimental “試行安排” only and that if the interim arrangement could not work, the Children might have to go back to the Father. 

(viii)  After the Mother moved to TKW Flat, there had a lot of deficiencies (“甩漏”)  which showed that the Mother was not able to take care of the Children properly on her own.

(ix)  The SWO accepted that the Mother revised Open Proposal was riskier than his recommendation and he said the Mother’s revised Open Proposal was not a “將來的現實” when he was asked by Mr. Chan for the Mother to comment on the Mother’s revised Open Proposal.

(x)  Amongst other things, SWO commented that the Mother seemed to be “有心無力” (she had the heart but did not have the strength)  when she was dealing with the enuresis (遺尿)  problem of HLL.

(xi)  The SWO further confirmed that he could understand what the Paternal Grandfather said to him unlike the Mother’s allegation in her affirmation that the Paternal Grandfather has his own accent (鄉音)  and hence it is difficult to understand what he said.

(xii)  The SWO comments that when the Mother sought help from NGO, she would be adamant on her own views or stances (很堅持自己的睇法).

The Father

50.  In his submissions, Mr. Cheng for the Father praised the Father to the highest and submitted that the Father is an honest witness as he accepted that he was wrong when being cross examined by the Mother’s Counsel and that he did not try to argue with the Mother’s Counsel.

51.  I find that the Father is in general an honest person.  However, his admissions made in oral evidence also reflected his inadequacy in appreciating the nature of the problems facing the Children and the actual needs they have.

52.  The Father gave the Court the impression that he always put the emphasis on the manpower (including hiring private tutor(s)  for the Children)  that he could mobilize for daily care of the Children.  In this regard, the Court should have no doubt that the Children could be ordinarily cared for in relation to their daily routines while they are in the care of the Father with the assistance of others.  However, the Court was not impressed by the Father’s answers in relation to how the Children’s special needs could be specifically catered for.

53.  The Father confirmed that throughout the marriage and before the Mother quitted her job in July 2019, the parties, the Paternal Grandparents and helper (when there was/is one employed)  have all been the carer of the 3 Children but definitely not just the Mother as the primary carer.

54.  The Father also claimed that the Mother was busy in working and studying and she always needed to go out after school to work during weekdays and in weekend.  The Court was again referred to the exhibit produced by the Father of a WhatsApp message written by the Mother herself on 2^nd November 2018 (6 months before the issue of the divorce petition)  telling the Father her schedule.  The Mother needed to go out every Monday from 4-8:30pm; Wednesday 5-6:30pm; Friday 3:45-6pm; Saturday 9:00 – 11:30 am and 3:30-5:30 pm and Sunday 5:30 pm.  The Court has taken heed of that all these periods as mentioned hereinabove were not school time and the Children should be at home.  In the meantime, the said WhatsApp message (including the truthfulness of what the Mother had said therein was not disputed by the Mother).

55.  On behalf of the Father, Mr. Cheng also produced 3 tables showing the Mother’s movements from 11^th July 2020 to 10^th February 2021; 11^th February 2021 to 10^th June 2021 and 11^th June 2021 to 17^th October 2021 (last one of which was only produced at the trial as exhibit F3 and the admissibility of the same was not disputed by the Mother) (the “Mother’s Movement Tables”) and also individual and consolidated table of the 3 Children’s medical appointment records as downloaded from the Government app 醫健通 (produced by the Father at the trial as exhibits F1 and F2 (the “Medical Appointments Tables”)  and not disputed by the Mother while the Mother sought to explain the reasons why the events as shown in the tables occurred in her oral evidence).

The Mother’s Movement Tables as Produced by the Father

56.  Mr. Cheng accepted on behalf of the Father that the movement records of the Mother submitted by her are not 100% correct and complete as explained by the Father and the Paternal Grandmother who were the main persons making this record as some of the days, they forgot to record.  On the other hand, neither did Mr. Chan put a case against the Father nor the Paternal Grandmother that the Mother’s Movement Tables are not accurate.

57.  In the meantime, the Court accepts that the Mother’s Movement Tables were largely accurate as that when the Mother was cross examined by Mr. Cheng about her failure to bring the Children to the medical appointments by using the Mother’s Movement Tables to confirm her movements on some particular dates, she started to agree to the entries stated in the Mother’s Movement Tables to be true and accurate.  Indeed, when the Mother testified on those tables, the Court had also warned her that she had to think carefully when she continued to agree to the Mother’s Movement Tables about her movement records.

58.  It was later on when the Mother said as she needed to move flat so she had to cancel the physiotherapy appointment for HLL, Mr. Chan then stood up again and objected Mr. Cheng’s questions. The Mother started not to agree with the record of her movement as stated in the Mother’s Movement Tables.

59.  The Court also asked the Mother whether she was aware that the Father had been recording the Mother’s movements as early as in mid-February 2021 when the 1^st table was produced in the Father’s 3^rd Affirmation and then the 2^nd table in the Father’s 4^th affirmation filed in June 2021; and whether she chose not to make any record of her own in order to rebut the Father’s record if she thinks that the records are not accurate.  The Mother simply could not provide any answer to that question asked by the Court: -

The Court : 媽媽，睇返呢個表先，媽媽你知道呢其實爸爸之前已經呈交左兩個類似嘅呢啲咁嘅出入紀錄表，係咪？

The Mother: 我知道

The Court: 即係其實你都理解係爸爸一直以來對你其中一個指控就係話你成日外出，係咪？

The Mother: 我覺得佢係特登咁樣整

The Court: 係囉, 佢係特登咁樣整

The Mother: 係

The Court: 咁你有冇諗過其實佢會繼續做呢啲咁嘅紀錄做到你上庭嗰日為止

The Mother: 我冇諗過，不過我唔得閒諗呢啲。我每日照顧小朋友三餐返學功課已經係好忙，我淨係掛住小朋友啲嘢。我唔會理會佢講我外出同埋我覺得外出好正常。正常嘅外出囉接放學返學買餸或者係同小朋友參加學校啲嘢，學校要打針要買校服，要處理學校啲嘢，我覺得正常外出係好正常。我行得正企得正，我唔怕佢影我或者做乜嘢。

60.  According, the Court accepts the reliability of the Mother’s Movement Tables, which serve as evidence of incidents in which the Mother missed the medical appointments either when she was just at home or she left home alone.  Also it can be shown that the Mother started to leave home more often leaving the Children at home to be taken care of by the Father, his family and helper.

The Medical Appointments Tables

61.  In relation to the Medical Appointments Tables from 20^th March 2020 to 6^th October 2021, these are not being challenged as to the accuracy as they were downloaded from the government app “eHealth” (醫健通).

62.  Mr. Cheng in his submissions put forward the arguments that these tables prove the followings:-

(i)  During that period, the Mother accepted that she was the primary carer of Children and she accepted that the 3 Children have different physical, mental and developmental problems and disabilities and that the medical treatments were important to the 3 Children but she did not inform the Father, his family or helper about any of these medical appointments.

(ii)  She said for some appointments, she forgot to attend or had other things to do so (like moving flat)  and therefore had to cancel.  For those appointments she knew, she either cancelled or changed but did not ask for help of the Father, Paternal Grandparents or the helper or even her own family members to help to bring the Children to attend any of these medical appointments despite she knew she could not attend.  As a result, the Children’s different medical appointments had either to be cancelled or delayed.

(iii)  Mr. Cheng then further highlighted the following cancelled or delayed medical appointments:-

For HLL

All ENT appointments on 2^nd April 2020, 29^th April 2020, 14^tH October 2020 were all been cancelled by the Mother without any good or valid reasons despite she said in her affirmation dated 28^th February 2021 that she arranged ENT treatments for the Children and brought them to attend. On the other hand, the Mother during cross-examination only said there was no need to attend any ENT appointments which cannot be right as this contradicts her own affirmation.

For physiotherapy, the Mother changed HLL appointment from 28^th July 2020 to 7^th September 2020. The Mother said with the consent of the physiotherapist, the appointment was changed. The Court then questioned the Mother’s evidence by asking whether there was such an irresponsible physiotherapist. The Court further questioned the Mother that whether or not to attend the medical appointments was decided by the Mother but not by the professional.

For nutritionist appointment for HLL, the Mother changed the appointment and was late for one month.

For psychiatric appointment of HLL, it was late and delayed for 2 months because the Mother could not bring 2 different children to 2 different appointments at the same time.

For HTY

The occupational therapist appointment was delayed for more than 2 months from 22^nd April 2021 until 2^nd July 2021 when the Mother cancelled the appointment on 15^th June 2021 and not attending on 24^th June 2021. In the course of her cross-examination, the Mother gave the reason that because the therapist asked HTY to cut hair before coming to the next appointment but he did not have hair cut so the Mother decided not to bring him to the medical appointment. Mr. Cheng submitted that this is simply unbelievable for the Mother to put the blame on the therapist to have asked HTY to cut hair before coming to the next appointment. 

When the Court heard what the Mother said about the Mother’s explanation not to attend the occupation therapy appointment because of no haircut, the Court asked the Mother : “你即係話剪不到頭髮就不能接受治療”

The Mother replied “ 一個月剪一次好正常”.

However, the Mother had not provided any reason why HTY could not have had the cut before the originally scheduled appointment date so that the appointment had to be deferred. On the other hand, if the Mother found that there was actually no need for HTY, there should no reason at all missing the occupational therapy appointment.

When she was asked about the cancellation of the 義肢矯形科, she said it was because another hospital had already made the “鞋托” for HTY, so there was no need to attend the medical appointment at Queen Elizabeth Hospital. The Court then asked her the following:—

The Court: 就算喺第二間醫院整咗鞋托, 同佢如唔如期去覆診有乜嘢關係呀？

The Mother: 我諗又整鞋托又有咁多覆診, 所以就可唔可以推遲一陣時間

The Court: 咁即係你自己決定有冇需要去覆診啦喎?

The. Mother: 因為都睇咗寶血醫院嘅醫生個治療師佢建議要着一排

The Court: 咁寶血醫院嗰個醫生有冇叫你唔好去覆診呀？

The Mother: 佢話唔使咁快返嚟覆診, 等佢打電話再覆診

The Court: 唔使咁快返去寶血醫院覆診啊。咁佢有冇叫你唔好去伊利沙伯醫院覆診?

The. Mother:: 咁佢又冇叫不過, 我自己就咁諗

The Court: 咁即係你自己決定囉, 係咪呀?

The Mother: …

The Court: 本席有冇冤枉你呀？

The Mother: 冇冇冇

For HTC

When she was questioned by the Court why she booked 3 different out-patients appointments on 6^th October 2021, the Mother admits that she suspected HTC had “眼挑針”and “扁平足” on 6^th October 2021 but she later cancelled all 3 out-patients booked appointments and only brought HTC to receive medical treatment on 12^th October 2021 which was 6 days after the suspicious “眼挑針”.  The Mother did not give any reasons why she chose to delay the medical appointment for 6 days when the symptoms of “眼挑針” should be obvious. We set out the conversations between the Court, the Mother and us:-

The Court : 我反而有個問題想問吓媽媽，星期六你就話爸爸帶咗出去，咁星期三呢？

The Mother: 星期三唔係，星期三係我嘅

The Court: 請你睇返頭先個F1，10月6號嗰個，第16第17第18, 2021年10月6號, 禮拜三嚟嘅. 你又係book咗三個門診三個都取消. 呢個又發生乜嘢事情啊？

The Mother:  對唔住我好似未搵到你頭先講嗰個嘢

The Court: 你隻手揸住嗰份，最尾嗰版

The Mother: 星期三係咪，呢個

The Court: 呢個應該唔關爸爸事啦

The Mother: 唔關佢事, 呢個係我取消

Mr. Cheng: 咁你係咪有病先book 㗎，係咪呀？

The Mother: 係取消咗，跟住睇吓先吓哦，呢個就係又係嗰個app嗰啲

The Court: 點解你book咗三個門診，三個都取消咗佢呀？

The Mother: 因為嗰個等吓先呀，嗰個係返學時間。我又諗住算啦，改唔係呢兩個應該就係即係諗住放咗學先

Mr. Cheng: 咩啊，11:30點放學啊

The Mother: 嗰個係返學時間，我諗住算啦放學時間..嗰啲app係電腦安排唔係你想揀就揀

Mr. Cheng: 嗰個係返學時間你book來做乜嘢啫

The Court: 10月6號啦就係兩三個禮拜之前嘅啫, 媽媽, [HTC]發生咩事要睇醫生？

The Mother: 眼挑針，佢係眼挑針同埋扁平足，所以我諗住攞醫生介紹信去排期

The Court: [HTC]扁平足犀利？

The Mother: 佢扁平足因為啱啱學校

The Court: 扁平足門診就可以醫到㗎喇？

The Mother: 唔係扁平足要去門診攞醫生介紹信先可以排期義肢矯形

Mr. Cheng: 咁係眼挑針定係扁平足啊?

The Mother: 兩樣都有

Mr. Cheng: 同一個地方兩樣都可以睇晒？

The Mother: 係呀

Mr. Cheng: 其實會唔會係跟住你就想book 9號跟住又取消？我想幫下你姐，會唔會去到10月12號終於book到啦，李基去咗三點九，放咗學係咩呀

The Mother: 係

Mr. Cheng: 即係要等六日先至去睇，係咪咁呀？

The Mother: 扁平足嗰啲

Mr. Cheng: 眼挑針?

The Mother: 我懷疑姐

Mr. Cheng: 而家就懷疑？

The Mother: 我懷疑眼挑針

Mr. Cheng: 但等六日後先去睇同意嗎?

The Court: 媽媽你有冇生過眼挑針呀?

The Mother: 我印象中(苦笑聲)好似就冇

The Court: 你知唔知生眼挑針會點㗎?

The Mother: 我有…

The Court: 眼挑針會唔會痛㗎?

The Mother: 佢腫咗就會痛

The Court: 佢咁有冇腫度啊？

The Mother: 冇

The Court: 咁點解你會懷疑佢眼挑針嘅？

The Mother: 因為我見到少少好似唔一樣咁咁好彩我

The Court: 你個仔有冇同你講隻眼好痛啊？

The Mother:  佢冇投訴冇乜嘢

The Court: 冇投訴冇剩?

The Mother: 咁到而家都冇事呀

63.  The abovementioned are not merely the Father’s criticisms on the Mother’s ability to take proper care of the Children, the Court is equally bewildered by the answers given by the Mother in her oral evidence and has doubts as to whether she was able to accord proper priorities to the needs of the Children.

The Paternal Grandmother

64.  Again, Mr. Cheng sought to convince the Court that the Paternal Grandmother is also a honest and reliable witness and she was also willing to accept and tell the Court things which may not in favour to the Father’s case like when she talked about the time when the Mother swore at the Paternal Grandfather, the Paternal Grandmother said the Paternal Grandfather swore back.

65.  Hands on heart, the Court is not interested in the grudges between the Mother and the Paternal Grandmother Mother unless such grudges would adversely the interests of the Children. Indeed, the parties hereto as well as their proposed helpers are all adults, if they really care about the Children’s welfare as they so claim before the Court, there is simply no reason why they shall not and cannot put aside the hatreds (if any)  they harbor and focus their times and efforts on catering for the needs of the Children.

66.  The Mother tried to attack the Paternal Grandmother health saying that she had cancer before and a lot of the organs had been removed and hence she is not able to take care of the 3 Children.

67.  The Paternal Grandmother confirmed Stage 1 cancer in 2012 and had total gastrectomy done and also involved spleen, and 1/3 pancreas.  Now she is attending regular check-up yearly with no sign of relapse. Uterus had hysterectomy long time ago.

68.  The Paternal Grandmother also confirmed how busy the Mother was before she quitted her job in July 2019.  She also fairly confirms and agrees that the Mother, the Father, the Paternal Grandfather, the helper and herself are all carers of the 3 Children but not just the Mother as primary carer.

69.  The Paternal Grandmother also confirmed that she and the Paternal Grandfather are willing to continue to help the Father to take care of the 3 Children together with the helper.

70.  The Paternal Grandmother also confirmed and accepted fairly that she might not be able to help with the Children school works but they can hire private tutors to help which they have been doing that now.

71.  The Court does accept that the Paternal Grandmother is an honest witness.  The Court also accepts that there is no evidence that the Paternal Grandmother is not able to take daily care of the Children (including bring them to attend medical appointments)  despite the Paternal Grandmother had previously suffered from cancer.  On the other hand, the Court equally observes from the Paternal Grandmother’s oral evidence that (just like what the Court observes on the Father)  while she loves the Children and is able to help take care of the Children on a daily basis, the Paternal Grandmother equally has inadequate insight of the special needs of the Children and it does not appear to have cross her in mind in depth as to measures and steps could be taken to accommodate the Children’s special needs and to improve their problems, apart from hiring private tutors.

The Paternal Grandfather

72.  The Paternal Grandfather had not given evidence in Court. Indeed, even in the two SIRs, the descriptions of the Paternal Grandfather’s involvements in the daily care of the Children were also limited.

73.  However, from the available information, the Court is satisfied that, despite he may only play a relatively auxiliary role, Paternal Grandfather is one of the manpower that the Father can mobilize for taking care of the Children and at least, the Paternal Grandparent will not serve a burden which requires that Paternal Grandmother and the domestic helper to take care of.

The Mother and Her witnesses

74.  After hearing the oral evidence of the Mother and her witnesses, there shall be no doubt that the Mother is a loving and care mother and she had tried her best to devote her time and efforts on the Children.  In particular, the Mother had attended a number of training courses on how to take care of children with special needs.  The Court accepts that such efforts are out of the Mother’s genuine concerns of the Children needs and not litigation tactics adopted by her.  The Mother’s aforementioned efforts are simply unmatched by the Father and should be appreciated by him.

75.  Equally, the Mother’s witnesses, namely, Madam SKC, WKS and WKF are people who are sincere and truthful.  All of them had indicated their willingness to help take care of the Children for the Mother.  However, for the reasons set out hereinbelow, the Court regrets to say that their evidence has to be rejected.

76.  First of all, from the evidence available to the Court (including the Mother’s oral evidence of she being cross-examined on the Mother’s Movement Tables and the Children’s Medical Appointment Tables), the Court believes Mr. Cheng’s comments on the Mother’s work situation before she suddenly quitted working in July 2019 are fair.

77.  The Mother was a private tutor giving private tuitions which requires her to work mostly after her students finished school during weekdays and all day during weekends (even on Sunday).  Not only she was busy in giving private tuitions, she was also busy in taking different courses in order to enhance herself as shown in the trial of her previous courses taken including those not relating to help the disabilities of the Children.

78.  While the Court appreciates that the Mother has genuine desires to understand the needs of the Children, she seemed to have lost sight that the most important thing was still to accord sufficient time and attention to the Children’s the actual daily needs.  As already set out above, the Mother sought professional assistance and made a number of appointments for the Children but she later on took the decisions in her own hands and solely decided whether the medical appointments should be deferred or not, while she saw it proper not to seek other’s help (including the help of Madam SKC, WKS and WKF)  in bringing the Children to those medical appointments and simply let the appointments missed.

79.  In her examination-in-chief, she explained the reason why she suddenly quitted her job in July 2019, she said it was because she wanted to take care of the Children more as they have special needs.  Then the Court asked her the 3 Children have special needs before she received the divorce petition and why she suddenly needed to quit her job, she then answered saying that because the Father and his family asked questions about where did the Mother go and also recorded them, so she decided to quit the job.  The relevant exchanges are quoted as follows: -

Mr. Chan:  展開這個法律程序之後，咁就即刻唔返工，就即刻話佢做全職家庭主婦，霸住三個小朋友，你有冇啲乜嘢講法？

The Mother: 我唔同意對方嘅說話，因為我不嬲都喺度照顧小朋友。即係收到呈請書嘅時候, 其實都係男方同埋佢父母成日攞電話即係對住我小朋友錄音, 問小朋友媽咪去咗邊, 你媽咪做咗乜嘢, 咁我覺得小朋友受咗好大壓力

Mr. Chan:  我想精簡D, 點解你嗰陣時會突然唔再補習?

The Mother:  我想全力照顧小朋友, 我小朋友有特殊需要, 唔放心

The Court:  但本席有一個問題，離婚呈請書提出之前你都知你三個小朋友有特殊需要㗎，咁你亦都係肯花時間做好多進修。咁即係你其實離婚呈請書提交之前你都知道佢哋嘅需要係乜嘢個噃，同唔同意呀？

The Mother: 我明白小朋友有特殊需要，咁但係因為即係對方提交呈請書之前做咗好多功夫。即係小朋友向我投訴爸爸爺爺嫲嫲成日攞個電話黎影佢哋嘅相錄佢音，問佢媽媽去咗邊，媽媽做咗啲乜嘢。我小朋友晚晚同我投訴，即係佢哋又影我。我覺得小朋友比佢哋做磨心，我覺得受咗好大壓力，咁所以我決定辭職全職照顧小朋友。

80.  In the premises, while the Court does not accept entirely Mr. Cheng’s criticism made on behalf of the Father that the Mother’s quitting of her job is a tactic, the Court finds that motive of the Mother doing so doubtful and whether she quitted her job was purely for properly taking care of the Children.

81.  Indeed, even after she had quitted her job, there are also other indications that the Mother was unable to properly take care of the Children herself.  One of the examples is that not only did the Mother not help or guide HTC to complete his home works, she dared to sign the home works as parent when the home works were not even completed.  In the homework sheets, the school requires the parent to sign after checking the completed home works.  No explanation was given by the Mother as to why she signed the home works even before they were completed. The Mother simply has no insight of how to supervise, guide or teach her own children home works and blindly signed even before the home works had been completed. In this regard, the Mother was cross-examined by Mr. Cheng:-

Mr. Cheng: 我向你指出你根本喺小朋友未做完功課你就已經簽定晒啲名，話家長，哎呀，好在漏咗，你睇吓嗰度寫咩家長閲簽署。乜嘢叫做閲後?

The Mother: 我係我承認我簽名

Mr. Cheng: 閲後呀！閲後係咩意思呀？

The Mother: 咁我都承認咗係我簽名，就係咁樣

82.  Equally, the Mother had failed to secure homework be completed by HLL.  She explained that HLL should have her own responsibility to do the home works.  She also put the blame on HLL’s concentration problem and that she could not took her own initiative to learn “自主學習” and she admitted that she was negligent and that she did not do well.

83.  It is the Mother’s case that she has been teaching HLL her school works but her academic result was not satisfactory at all and she always in the lower end of the class.  When the Father complained about this, the Mother said HLL had always been mediocre in academic performance “平平無奇” in her affirmation.  We would like to remind the Court that this is the Mother’s case and confirmed by the SWO that HLL was mainly being taken care of by the Mother. It is therefore the Mother who made HLL academic performance mediocre (平平無奇).  Only after the Father realised the problem, he was the person who proposed and hired a private tutor to help HLL in her school works.

84.  At trial, there was a discussion about HLL enuresis problem at night when she was already 10 years old.  HLL had been sleeping with the Mother all along at night.  The Father complained that it was because of the Mother’s refusal to teach and ask HLL to wake up from bed to go to toilet, this has caused the problem.  However, the Mother denied it was her problem and she said it was because of the “原發性” symptoms of HLL and it is difficult to find real reason of HLL’s problem.  However, as long as HLL was growing help, it is somehow inconceivable that the Mother could not provide appropriate training to HLL or seek professional advice on how this problem could be solved.

85.  The Court has no doubt that the Mother has the heart to take good care of the Child.  However, the Court finds it proven that her executionary ability is not as high as she thinks or claims to be.  Mr. Cheng in his submissions criticized that the Mother had hogged the Children in her care (霸住嚟湊), the Court does see some forces and validity in this criticism.

86.  While the Court refrains from suspecting the Mother’s motive, the Mother arranged 2 visits by WKF in November 2021 with the 3 Children in the park while the Mother needed to go home to cook.  She further arranged her other brother WKS to accompany her 2 times to attend the medical appointments of the Children also in November 2021. These moves were only done after the last hearing date of the 1^st part of this trial on 22^nd October 2021 and were so obvious for this litigation.  On the other hand, as will be further mentioned hereinbelow, WKS and WKF indeed rarely took part in helping the Mother care of the Children.

87.  The Mother’s case is that she could ask for the help of her family, namely, Madam SKC, WKF and WKS, who testified at the trial.

88.  In the Mother’s evidence-in-chief, she suddenly said she could also ask her father, 2 sisters, brother-in-law and niece and social worker to help her to take care of the Children.  The Mother had not said so in any of her previous affirmations.  Nor had this ever been raised to the SWO and no information about the further proposed helpers had ever been mentioned by the SWO in his SIRs or oral evidence at all. While the Court has not criticism on Mr Chan for the Mother, the suggestion of the aforementioned additional helpers was not even put to the SWO when Mr. Chan asked the SWO questions. The Court also had not received any information of the additionally proposed people and is in no position to assess what role they may play in the caring of the Children.  Therefore, the Court can only accord no weigh to the Mother’s aforementioned beefed-up oral evidence.

89.  Moreover, the Mother also accepted in her Form J and in trial that if the Children need to be taken care of not by natural parents, she prefers the Paternal Grandparents but not her own family.

90.  Regarding the evidence of the Mother’s three witnesses. While the Court does not accept Mr. Cheng’s criticism that their evidence were collaborated and colluded, the Court does find that their evidence not reliable in the quantity of the evidence.

91.  Indeed, information provided in Madam SKC’s affirmation as to how she could provide assistance in caring the Children is sparse.  There is simply no details of how and in what aspect that she had helped and could help the Mother take care of the Children. Even in her oral evidence, Madam SKC’s only claimed that she was generally willing to help the Mother and the Court finds her evidence has no substance at all.

92.  When WKF (who is a Police officer)  was asked whether Madam SKC and his father were actually living with the family of WKS including his wife and child, he first said no but when Mr. Cheng put the Father’s case that they are in fact living together, he suddenly refused to answer the question “拒絕回答”.  After the Court explained to him that he needed to answer the question, he insisted his refusal to answer this question “我拒絕回答”.

93.  Furthermore, it was the evidence of Madam SKC that she and the Mother’s father were not living with WKS and his family and when she was asked who was looking after WKS’s daughter, she said WKS has a helper.  However, when Mr. Cheng asked WKS whether he has a helper, he said no.

94.  One point to note is that when Mr. Cheng asked WKS whether he and his family was living with Madam SKC and his father, he said no.  He then suddenly took out a letter from his trousers pocket saying that this was his bank statement and could prove that he is not living at the same address as Madam SKC.  The motive and the reason why this letter was prepared and suddenly produced looks dubious to the Court.  However, since the Court is going to reject the evidence of the Mother’s witnesses, there shall be no need to spend time on further exploring the reason(s).

95.  Furthermore, WFS (being a health care assistant (健康護理服務員)  working in medical field)  agreed that the Mother did not do well in taking care of the Children when Mr. Cheng told him the fact that the Mother had cancelled or missed a lot of the Children’s medical appointments. In the meantime, it appears to the Court that before coming to the Court to testify, WFS did not have any idea as to how the Mother had been taking care of the Children and this is also doubtful as to how much WFS had been involved in helping take care of the Children for the Mother in the past.

96.  In the meantime, both WKS and WKS are persons with their own families. While they claimed in their evidence that there were prepared to offer their assistance to the Mother, it is doubtful how much time and efforts they can actually provide in the event that the Mother has care and control of the Children and call for their assistance.

97.  Indeed, there were also occasions on which the Mother simply had not (while she could have done so)  sought the assistance of her brothers while the need for doing so were so obvious so that the Children had to miss their medical appointments which the Mother acknowledged to be important.

The Views of the Children

98.  As referred to in the 1^st SIR (at [25]), HLL indicated her preference to live with the Mother.  She also indicated that she wished to live with her younger brothers. HTY, on the other hand, expressed that he wished to live with the family in the FMH.  When the 1^st SIR was submitted, it was reported that HTT indicated that he preferred to sleep with the Mother in the TKW Flat.

99.  Roughly one year later, it is reported in the Updated SIR (at [21])  that HLL wishes to live with the Mother.  In the meantime, HTY indicated his preference to live with the Father as he had accustomed to sleep with the Father.  But HTY also expressed that it would be ideal for him to live with HLL and HTC together.  HTC expressed that he has not preference as to whether living with the Father or the Mother.  However, HTC told the SWO that he wanted to live with HTY for the reason that HLL comparatively played with him less frequently than HTY did.

100.  As to the weight of the wishes of the child concerned in proceedings of this sort, Mr. Chan had specifically drawn this Court’s attention to the Court of Appeal’s comments in YSYM v LHB [2020] HKCA 586.  In [71] of the said judgment, the Hon Kwan VP (giving the Reasons for Judgment of the Court)  referred to the English Court of Appeal’s judgment in Re R (Residence Order) [2010] 1 FLR 509 and expressed as below: -

“71. Rix LJ had this to say in Re R (Residence Order)  [2010] 1 FLR 509 at §§57 and 58:

“[57] The importance of listening to a child once he or she has reached the age of 10 … has been stressed in the authorities. Thus in Re L (A Child)  (Contact: Domestic Violence)  [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘…while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child's resistance appears to exist.’

See also Re D (Abduction: Rights of Custody)  [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’

[58] I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored them. He has attempted to reason against, and reject, the child’s (partial)  rationalisation of them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and, in my judgment, with considerable emotional understanding. Moreover, those wishes, in part natural given his love for his mother and his successful upbringing to date – and therefore to be given all the more attention rather than discounted ... I do not understand why these well-evidenced concerns were overborne by a call for greater sophistication: in reality this was little more than a way to reinforce the judge’s conclusion that he would not disturb the boy’s “settled” status.””

101.  The Court is of course bound by the decision of the Court of Appeal.  However, it still leaves a question of how the Court should apply the abovementioned principle to the present situation, in particular, in the light of the question of whether the Children are of sufficient maturity and ability to validly express their views.

The Special Needs of the Children

102.  As now evidenced from the Medical Appointments Tables, what the Mother did in terms of taking care of the Children by bringing each of them to attend different medical appointments is far from satisfactory if not worrying or alarming.

103.  The Mother had for no good and valid reasons or excuses failed to bring the Children to attend different treatments of their physical, mental and developmental problems and disabilities when she and her brother WKS both agreed that these appointments are all important for the treatments of the physical, mental and developmental problems and disabilities of all the three Children.

104.  The Mother tried to explain that she had on one occasion called the Paternal Grandfather asking him to help to bring HLL to attend a medical appointment because she had to stay in the hospital with HTC.

105.  However, the Mother did not put this important allegation that the Paternal Grandfather did not want to help to bring the Children to attend medical appointment in any of her affirmations and it was the Mother’s evidence that she has never contacted the Paternal Grandparents directly.  Also during cross examination, Mr. Cheng had asked the Mother whether she expected the Paternal Grandfather would listen to her when she once complained that the Paternal Grandfather had indecently assaulted her.

106.  Also during cross examination of the Mother about the cancellation of 4 medical appointments for HTC on 10^th April 2021, the Mother said she had asked the Father to bring HTC to attend the medical appointment but the Father refused.  However, she said previously that there was only one occasion when she needed to ask the help from the Father or his family to bring the Children to medical appointments.

107.  For HLL, all ENT treatments were cancelled by the Mother without any reasons.  For HTY, the occupational therapist appointment was delayed for 2 months because she did not cut the hair of HTY before the original scheduled appointment.  For HTC, the Mother decided to cancel the medical appointment when she suspected that the son has “眼挑針” and she only brought the son to see doctor 6 days after.

108.  If we look at the consolidated Medical Appointments Table, it also proves that the Mother simply could not spare herself (分身)  to bring different children to different medical appointments at the same time or almost at the same time without seeking help from others.

109.  Indeed, when the Mother was cross examined heavily on the real reasons of her not able to bring the Children to all these medical appointments, she finally told the Court in tears that it was because of her not having time, money and energy “時間, 金錢, 精力”.:-

The Court: 即係你覺得職業治療唔急切?

The Mother: 係, 即係唔係咁急切

The Court: 相對剪頭髮你都講你寧願等埋個仔剪埋頭髮先俾佢去職業治療？我有冇聽錯啊?

The Mother: 職業治療師教咗我喺屋企我可以做啲咩呀，等佢唔會有咁驚剪頭髮洗頭。咁佢又乖乖地洗頭亦冇呱呱嘈，咁可以其實一路都有延遲治療師都知道我唔容易，佢都覺得可以梳啲嚟就唔使咁密啦。初初係密啲一個星期或者兩個星期一個月兩個月咁

Mr. Cheng: 第158頁第25段職業治療根據你嘅誓章黎先生嘅總結都係一個重要嘅。你盡力替三名子女安排並陪伴鼓勵，但係你就為咗唔剪頭髮去唔到而令到梓鑫兩個多月都冇辦法去接受職業治療。同意嗎？

The Mother: 佢有改善咗治療師亦都同意左唔使咁密

The Court:  你都冇去見治療師，治療師幾時話俾你聽唔使咁密呀？

The Mother: 覆診嘅時候講過

Mr. Cheng: 你都冇去覆診 4月22去到7月2你邊度有覆診啫？

The Mother:  佢同我講過就唔使咁密

Mr. Cheng: 佢點同你講啊？

The Mother:  我去覆診嘅時候佢咪講囉，如果改善咗肯乖乖地洗頭剪頭髮洗頭冇呱呱嘈就唔使咁密啦。因為梓鑫都話又去又去

Mr. Cheng: 即係梓鑫話唔去你就唔俾佢去啦? 你係咪咁嘅意思啊？

The Mother: 唔係. 要去覆診一次又要錢又要時間小朋友又攰

Mr. Cheng: 即係時間好緊要啦?

The Mother: 時間同錢樣樣都緊要

Mr. Cheng: 緊要過亞仔去職業治療??

The Court: 鄭律師你俾佢答埋先，本席都想聽吓佢個解釋係乜嘢. 本席都有責任要考慮

The Mother: 即係去咁密…（哭泣聲）小朋友又好攰成日去都係要錢要時間

The Court: 你需唔需要休息一陣先呀媽媽?

The Mother: （哭泣聲）即係呢啲係我改嘅原因，即係一個成日要去小朋友好攰, 我都好攰，又要俾錢我經濟都好困難。小朋友睇咁多覆診都係我自己俾錢㗎。我又要照顧小朋友冇得返工。男方又一分錢都唔俾我

The Court: 你需唔需要飲啖水呀媽媽?

The Mother: 唔唔需要啦, 對唔住呀

The Court: 如果你真係要休息一下你出聲喎知唔知呀?

The Mother: 知道

Mr. Cheng: 即係錢同時間先至係真正嘅原因你同唔同意?

The Mother: 錢同時間同埋精力

Mr. Cheng: 同埋精力添?

The Mother: 小朋友同埋我嘅精力

Mr. Cheng: 你有冇叫爸爸爺爺嫲嫲幫手??

The Mother: 我冇叫.

Mr Cheng: 你有冇叫繼母, 兩個細佬, 老竇, 兩個家姐, 姐夫, 姨甥去幫手呀？

The Mother: 我冇叫

The Court: 媽媽唔介意我問得坦白, 因為本席係好需要去考慮清楚，其中一樣嘅事情就係你嘅照顧能力。點解你唔叫你自己女家嗰邊嘅屋企人去幫手嘅？

The Mother: 係咪即係呢個我頭先有講我唔叫佢哋去幫我覆診係因為佢哋唔熟小朋友啲嘢，醫生問到佢哋唔識。

The Court: 但係你自己一個人承擔晒即係改完期又要改期，你自己又心力交瘁。你都唔去求助其他人呀？

The Mother: 我就認為我自己跟進清楚啲，D醫生又明白我又明白會做得好啲

The Court: 但係社工係佢比口供嘅時候講個一句說話，就話你呢就尋求協助好有自己嘅睇法，你記唔記得呀？

The Mother: 有, 佢係有講過呢句

The Court: 你點樣去理解佢呢句說話?

The Mother: 我冇仔細諗過呢個問題

The Court: 你搞到自己咁大壓力或者唔好咁講啦，你要承擔咁大壓力。你係打呢場官司你就話有其他人會幫你手，但係過往嘅經驗就係自己承擔晒啲壓力，你都唔願意尋求其他人協助喎!

The Mother: 我會叫有事

The Court; 你覺得係呢啲咁嘅情況你都冇需要

The Mother: 因為我覺得可以有一啲覆診唔係咁急切都可以銜接得到

The Court: 但係你一改再改，改完之後差不多幾個月之後先至俾個小朋友覆診，你相信咁係對小朋友好㗎？

The Mother: 唔係唔係, 譬如話嗰啲職業治療唔係咁急切，學校都有職業治療啦。同埋我覺得其實有時有啲係重複咗嘅我又有自己跟住，我覺得咁樣係OK囉

The Court: 所以你覺得小朋友需要乜嘢專業協助係你自己決定？

The Mother: 唔係, 即係我睇到小朋友有需要我會尋求專家意見協助小朋友

110.  While the Court appreciates the pressures facing the Mother in the litigation as well as the caring of the Children, the irony is that if the Mother has the care and control of the Children, she will continue to face the pressures of taking care of the Children.  The Court is concerned with whether the Mother has a real insight of in what appropriate circumstances she should seek the assistance of others, but from the Mother’s past conducts and her oral evidence in Court, it seems that the Mother still had not acquired the sensitivity, which is beyond the question of what financial and human resources that the Mother had/has for the caring of the Children.  And the Court believe this is what and why the SWO described the Mother as “捉襟見肘”.

111.  It is quite unbelievable that the Mother would make such a decision that affects the future development of the Children, without even discussing the same with the Father or her own family.  While one of the reasons the Mother said she did all these to the Children’s medical appointments was because of money and that the Father’s side did not give her sufficient money, but the Father confirmed the Mother had never written any letter from her lawyer asking for interim maintenance nor issuing any formal application for MPS for herself and the Children.

112.  In comparison, while, as said above, the Father and the Paternal Grandmother equally have their problems of failing to have adequate insight of what precise measures and steps that they can adopt to help the Children to further improve from their special needs and illnesses, there are at least daily routine arrangements in place for the Children and they can take steps to implement these arrangements.

Undesirable to Order Split Care and Control

113.  In the meantime, it is also noted that the Children has a tight sibling bondage.  In general, it is undesirable for split care and control unless there are very good reason(s).

114.  At trial, I had ascertained the respective positions of the parties in relation to split care and control.  The Father through Mr. Cheng indicated to the Court that he does not favour the idea of split care and control but if the Court so makes a decision, he would accept.  The Mother through Mr. Chan expressed to the Court that she would not accept split care and control.

115.  The Court had also ascertained the view of the SWO on split care and control.  The SWO expressed that he did not find split care and control desirable as the Children are close to each other.

The Intended Accommodation of the Mother Upon the Conclusion of the Divorce Proceedings

116.  The Father criticizes that it is not even known where the Mother intends to move to live with the Children upon the conclusion of the divorce proceedings.  In a way, I do see some forces in this argument.  The SWO also confirmed that when he conducted the investigation, the Mother had no concrete idea as to where she should live if she eventually moved out of the FMH with the Children.

117.  The SWO said that if the Mother got the care and control of the Children, she would be able to apply for public housing unit but obviously, this will mean to be a significant changes of the Children’s living environments.

118.  In her Open Proposal, the Mother also included the possibility that the FMH would be transferred to her or the same be sold and the she will have a share in the sale proceeds.  I am given to understand that the paternal grandparents has now lodged a claim for beneficial interests in the FMH pursuant to the procedure set out in the English case TL v ML (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1236 (and adopted on numerous occasions by the Courts in Hong Kong).

119.  By the time of the trial, the TL v ML procedure was still preliminary and parties had not even filed and served their respectively pleadings.  I am given to understand further that there was a Financial Dispute Resolution hearing to be held on 18^th May 2022 (in the light of the Court of Appeal’s decision in LLC v. LMWA & Anor [2019] 2 HKLRD 529)  with a view to settling all the financial disputes (including the ancillary relief issues, the Mother’s section 17 application as well as the paternal grandparents’ claim against the FMH).

120.  The argument that the Father cannot presume that he will continue to live in the FMH with the Children has some forces but in my respectful view, it will cut both ways.  Even if the paternal grandparents lost their preliminary issue claim against the FMH, there is no guarantee that at the ancillary relief trial, the Court will order the transfer of the FMH to the Mother.  Therefore, the Mother shall not be complacent that she would be able to live with the Children at the FMH.

121.  As to whether the Mother has any alternative plan for accommodation when she has to move out of the FMH, the Mother answered that she would apply for public housing unit upon obtaining care and control.

The Trial Nature of the Recommendation of the SWO in the Updated SIR

122.  In the Updated SIR, the SWO recommended a trial period of 9 months for the Mother to have care and control of the Children.  The Court asked the SWO the fallback position if after 9 months that the arrangement did not work out.  The SWO answered that the Children returning to the household of the FMH would be one of the possibility.  It appears that it would be too risky.

123.  The Court had also tried to explore the possible assistance that the Mother might obtain in the event the Father and the paternal grandparents would not agree to provide assistance to the Mother.  The SWO in the course of oral evidence also said that the Father and the paternal grandparents had never promised and in this regard, for obvious reasons, the Court finds it very disappointing although the Court cannot force the Father and the paternal grandparents in the event that the Mother really had care and control of the Children.  Overall the years, the Courts in Hong Kong have constantly encouraged parents to continue to cooperate in the matters relating to their own children, which should be for the best interests of their children, but many of the parents just turn deaf ears to it.

124.  The SWO said that he had not asked for HLL’s view if the Father had long term care and control.  He explained that he did not ask because HLL harbored hatreds against the Father and he was worried that such a question would touch HLL’s nerve and she would lose her temper.  The SWO also described that HLL is a relatively stubborn girl and the decision made by the SWO is understandable.

Disposal of the Issues Relating to the Children

125.  Just like many other cases involving the welfare of the Children, this is not a clear cut one.  First of all, the Children need both of their parents.

126.  Secondly, as mentioned hereinabove, each of the parties have his/her respective merits and demerits. None of the parents here is as perfect as they had been trying extremely hard to convince the Court.

. In the present case, both of the Father and the Mother find it very easy to the point their fingers against each other, but they have somehow forgotten that what will be in the best interests of their own children is their co-operations instead of accusations.

127.  After all, a call must be made no matter how tough it might be. Having considered all the relevant circumstances, I take the view that, on balance, the Children will benefit more if they remain living in the household of the FMH and be in the care and control of the Father so that they can continue to live in a familiar and stable living environment.  In the meantime, the Mother could also be relieved from the pressure of caring the Children.

128.  Having said so, I remind myself that I shall not lose sight of the importance of the Mother’s continuous contributions in the lives of the Children in future and adequate time and opportunities should be provided to the Children for them to spend with the Mother.  In particular, I believe that that the Mother’s efforts in exploring how children with special needs can better taken care of should be appreciated and this factor will continue to add value of the upbringing of the Children.

129.  Having said the abovementioned, while I have to strike a balance with the time that the Children will have to spending on travelling (in particularly, in the event that the Mother has moved out of the FMH), I make the following orders: -

(a)  By consent, joint custody be granted to the Father and the Mother;

(b)  Care and control of the Children be granted to the Father;

(c)  The Mother shall have access to the Children during their school terms as follows: -

(i)  On an alternate week basis, the Mother has staying access to the Children: -

(A)  from Friday after school to Sunday at 1 pm;

(B)  from Friday after school to Saturday at 6 pm;

(ii)  On top of the abovementioned, the Mother has day access to the Children every Wednesday after school until 8 pm.

(iii)  Unless otherwise agreed by the parties, the return point should be the ground floor of the building where the FMH situate.

(iv)  Apart from the abovementioned accesses, the Mother do have telephone access to the Children on Monday, Tuesday, Thursday and Sunday (if the Sunday falls on a week which the Mother does not have access)  between 7 pm and 9 pm.

(v)  The Mother may also have access to the Children through WhatsApp or other electronic means on the condition that it would not affect the Children’s studies and other daily routines.

(d)  Each of the parties shall have one-half of the Children’s long holidays (namely, Summer Holiday, Christmas and New Year, Chinese New Year and Easter)  in accordance with the Children’s school calendars. The details of the arrangement should be further agreed between the Father and the Mother.

(e)  The parties may jointly celebrate the birthdays of the Children.

(f)  The Father can spend the Father’s Day with the Children (even if the Father’s Day falls on the Mother’s staying access till Sunday and in such case, the Mother’s staying access should end at 6 pm on Saturday).

(g)  The Mother can spend the Mother’s Day with the Children (in such case, the Mother’s staying access for that week should commence on Friday after school until 6 pm on Sunday).

130.  I must say that the above arrangement is not satisfactory nor is it ideal.  However, having considered all the factors and in light of all the circumstances (in particular, the constraints on the parties and the possible impacts on the Children resulting from the changes that I have mentioned hereinabove), I believe the abovementioned arrangement shall be one of the least harmful or risky for the Children.

131.  In this light, I do believe that there is a real need for progress report to review whether this arrangement really works upon the expiry of one year from the date of the order made herein.  I make this order accordingly.

Costs Issue

132.  The general principle in children’s cases is that there should be no order as to costs save when one party has been unreasonable in the conduct of the litigation, as parents should not be deterred from putting cases concerning children before the courts (R v R (Costs and Child Case) [1997] 2 FLR 95, and Re G (costs: Child Case) [1999] 2 FLR 250).

133.  In the present case, I do not see any reason why the Court should depart from the application of the general principle.  Therefore, I accordingly make an order nisi that there be no order as to costs in relation to children issues (including all costs previously reserved)  with Counsels’ certificate and the said order shall become absolute 14 days thereafter.

134.  I also make an order that the parties’ own costs be taxed in accordance with the Legal Aid Regulations.

135.  Having said all the above, there is no doubt to me, as transpired from the evidence, that both of the parents are loving parents and had devoted to the Children a lot.  They had fought not for their own interests but for the Children’s instead.

136.  As can be seen from the evidence, they are able to set aside their differences and make attempts to cooperate with each other.  I do hereby encourage both of the parties to continue to make their best endeavours to cooperate with each other and make their respective continuous contributions towards the healthy growths and developments of the Children.

137.  In the meantime, I wish to thank the Paternal Grandmother, Madam SKC and the maternal uncles for they attending the trial to help the Court resolve the children issues.  They are truthful although I do find that their thoughts are to certain extents wishful and may not be realistic.  Nonetheless, I do wish that they can continue to provide their assistance in the caring of the Children whenever the Father or the Mother needs their helping hands.

138.  Last but not least, I shall take this opportunity to express my most sincere gratitude to both Mr. Cheng and Mr. Chan for their assistance to the Court.