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FCMC No. 1415/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 1415 OF 2009
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BETWEEN
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WHLH |
Petitioner |
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and
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CKW |
Respondent |
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Before : HH Judge Bruno Chan in Chambers
Date of Hearing : 25 – 28 January, 19 – 21 April, 5 May and 14 July 2011.
Date of Judgment : 25 August 2011.
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J U D G M E N T
(custody and access)
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1. This is the parties’ contested application for custody care and control of their only child, K, a son born on 19th September 2003 and who will be 8 years old in about a month’s time. He has since his parents’ separation in about 2009 been under the sole care of the Petitioner Mother, but is at present staying with the Respondent Father for his summer access.
2. While both parents have to work, the Mother, aged 35 has a much more flexible working hours as an insurance agent, while the Father, aged 41 works as a full-time taxi driver after being laid off his engineering job 2 years ago, and with a small child who has been diagnosed with borderline developmental delay with speech problems, and requires more parental cares and regular therapy and training, one would have expected a more straight-forward case for him to remain under the care of his mother now that his parents are divorced. Or so I thought.
3. Instead, and unfortunately the case had dragged on for more than 2 years due mainly to the intractable disputes between the parties over the Father’s access to the child, resulting in numerous court hearings, wasting court and public resources as both parties are on legal aid, and bringing nothing but misery and frustrations to the parties and emotional trauma to their child, for which it would be fair to say that most of the blame must lie with the Mother, and which I believe has led many of the social investigation reports and psychological reports submitted in this case to question her parenting ability and to propose that in would be in the best interests of the child in the long run to be put under the care of the Father instead. That was of course not agreeable to the Mother, hence the trial had had to run its full course which lasted 9 days in total.
Background
4. The parties first met in 1993 while working in the same company, and eventually married on 8th September 2000. The Father was then an electronic engineer after graduating from Hong Kong Polytechnic University, while the Mother was an account clerk upon completing her secondary education. After the marriage they continued to work and moved to live in Tai Po in 2002 where the child was subsequently born. Shortly thereafter the Mother was suspected of suffering from post-natal depression and the parties started to receive family counselling for their marital problems. In about 2005 the Mother was referred to Pamela Youde Nethersole Eastern Hospital for psychiatric treatment.
5. Perhaps due to the Mother’s condition, the parties decided to move back to Chai Wan later in the same year to be near to their respective family for support and assistance as to child care, when the Mother returned to work as an account clerk albeit on part-time basis, while the Father’s job required him to spend part of the week in China. In 2007 the child also started to undergo regular speech therapy and training at the Hong Kong Christian Service Wan Tsui Early Education and Training Centre.
6. Sadly marital relationship between the parties did not improve and according to the Father they had since 2006 been sleeping apart from each other. Soon he also required psychological counselling for depressive symptoms until about 2008 when his condition improved. The marriage however started to unravel when the Mother suggested divorce in late 2008. Matters certainly did not help when the Father was then laid off by his employer in January 2009 and could only find work working as a part-time driver earning much less than before. By then the Mother has also changed her job to insurance agent with irregular income.
7. On 7th February 2009 she issued a petition in these proceedings for divorce based on the Father’s unreasonable behaviour, and for custody of the child and general ancillary relief. On 5th May 2009 she applied for interim custody of the child and also for interim maintenance for them. At the hearing on 8th May 2009 the Father opposed the application and indicated his intention to contest custody of the child. The hearing was therefore adjourned for the 1st of the many social investigation reports to be filed in these proceedings.
8. Shortly thereafter in June 2009 the Father moved out of their matrimonial home in Chai Wan to live with his father and elder sister in Fullview Garden, Siu Sai Wan. The Mother soon also moved with the child to a rented suite in Chai Wan upon the expiration of the lease of the matrimonial home.
9. The Father then filed an answer to the petition on 29th June 2009 disputing the Mother’s allegations as to his behaviour and also cross-petitioned for divorce on the ground of 2 years separation between them, and as noted above also for custody of the child and general ancillary relief.
10. On 10th July 2009 the 1st social investigation report was submitted to court and suggested, subject to a psychiatric report on her mental condition due to her depression, that the Mother be granted the interim custody of the child. At the hearing on 17th July 2009 I directed that a further social welfare progress report on access and a psychiatric report on the Mother be submitted by the end of August 2009, that the child do remain in the interim custody of the Mother, and granted the Father interim visiting access to him for 4 hours on Tuesday evening and 8 hours on Saturday afternoon, with staying access for 1 night on alternate weekend, and also ordered him to pay HK$1,000 per month as interim maintenance for the child on the basis of his limited income disclosed in his Financial statement, which means that the Mother has had to subsidize her income with social welfare assistance.
11. The social welfare progress report submitted on 28th August 2009 revealed some problems with the Father’s access initially due mainly to the Mother being late bringing the child to the designated place for his access or her failure to appear at all, but that the child did have a good relationship with his father and was able to enjoy those access which did take place, and recommended that the Father’s access should continue on clearly defined terms as to time and place to avoid further conflicts between the parents.
12. The psychiatric report on the Mother from Pamela Youde Nethersole Easter Hospital (“PYNE Hospital”) however revealed more serious problems about her mental state including past suicidal attempts and violent behaviour, resulting in her being admitted into the psychiatric ward of the PYNE Hospital for a week in January 2009 with follow-up regular consultation and medication, but was later involved in a fight with some MTR staff in an incident in April 2009 for which she was arrested by the police. The report concluded that she has suffered from depression and dysthmia and required regular treatment, but if she were to remain mentally stable, she should be capable of childcare on her own, although it would recommend that there should be regular supervision by social worker and community psychiatric nurse.
13. Perhaps following up on the recommendation of the social welfare progress report, the Father on 3rd September 2009 applied and obtained additional weekend visiting and staying access to the child pending the final determination of the custody issue.
14. However, notwithstanding the said order was made by consent, the Father continued to experience problems accessing his son and therefore brought the matter back to court on 5th November 2009, when the Mother put the blame on the child’s various activities and her misunderstanding of the place and time for access. Upon hearing the parties I re-defined the Father’s access with visitation on Saturday from 10 am to 8 pm, followed by staying access on the following Saturday from 10 am to Sunday 10 am on alternate week basis, and called for a progress report to be submitted by the end of the year.
15. The progress report dated 30th December 2009, this time by a different social welfare officer after the first officer had been transferred to a different office, revealed that the Mother was no longer amendable to the Father having any form of access for various reasons such as the child would get sick after access, that the Father had not taken proper care of him, and that his access time clashed with the child’s extra-curricular activities. Nevertheless the report suggested that the access arrangement should remain in place but that it would be helpful to obtain a further psychological report on the Mother’s condition due to the stress that she claimed she had been put under by these access problems.
16. After further unsuccessful attempts to exercise access to his son, the Father took out committal proceedings against the Mother on 26th April 2010, and it was during the hearing of the committal proceedings on 8th June 2010 before me when the Mother agreed that the Father was to have staying access to the child during his summer school break from 13th July to 28th August 2010. An order was accordingly made and the committal proceedings were by consent adjourned sine die. For obvious reason I also directed that a further report be submitted by the end of August 2010.
17. On this occasion the said summer access arrangement was in the main carried out successfully and to large extent with the cooperation of the Mother, albeit probably for the wrong reason, of which will be apparent later in this judgment, until towards the end of August 2010 when the child was reluctant but eventually did return to the Mother, which seems only natural given that he appeared to have very much enjoyed his stay with his father.
18. This was confirmed by the further social welfare report dated 31st August 2010, but it also revealed that the Mother had during the interval unsuccessfully tried to get the Father to reconcile with her, and indicated again to the officer that she would not agree to the Father having any more access in future if she was granted custody of the child. For various reasons given, the details of which no doubt will be examined more closely later in this judgment, the report went on to conclude that it would be in the best interests of the child that his custody be granted to the Father, with reasonable access to the Mother, which is clearly a change in its recommendation, albeit this time by a different officer.
19. This was of course not acceptable to the Mother and, perhaps as a result, that summer was to be the last occasion when the Father was to have any successful access to his son before the trial, as since September 2010 the Mother had again put forward various reasons that access could not or should not take place such as the child was sick or was busy with school or extracurricular activities, or that the Father had failed to take proper care of him during previous access, and confirmed at the beginning of the trial that because of his failure to be financially responsible for her or the child after their separation, and his inability to take proper or adequate care of the child, that the Father should not be given any access in future either.
20. The Father obviously insisted that he was well capable of taking proper care of his son, and that the Mother had fabricated all these allegations just to alienate him from his son, he therefore again asked for staying access to the child during his summer break in July 2011, and after hearing the parties’ submission on 14th July 2011 and despite the fact that the Mother’s position was as entrenched as before, I allowed the Father’s application and directed the Mother to bring the child to Mr Hui’s office on 15th July 2011 for handing over to the Father, and after an outburst from her at the hearing that she would not so, with a clear warning to her of the possibility of another charge of contempt of court against her in the event of her failure to comply with such order.
21. Sadly but perhaps not surprisingly that possibility turned out to be a reality when she was brought back before me 2 weeks later on 1st August 2011 when she had still refused to hand over the child to the Father, and after hearing her in evidence when no valid reasons or explanations could be found, and when no mitigating factors could be proffered by her lawyer, I had no choice but to find the Mother in blatant contempt of court and committed her to prison for 7 days. It was only under such most unfortunate circumstances that the Father was able to collect his son for his summer access.
22. It is therefore clear that while both parties seek custody care and control of their child, at the heart of the issue is whether the persistent problems as to access was the result of the Mother’s deliberate attempt to alienate the child from the Father as alleged by him, or due to the Father’s inability to take proper care of his son during access and other reasons as alleged by the Wife, whichever is true will no doubt impact on how the court assesses the parties’ parenting capacity. But before I shall start considering the parties’ respective case, it would be relevant to first set out the applicable legal principles.
Applicable Legal Principles
23. The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child of the family are set out in s 3(1)(a) of Guardianship of Minors Ordinance, Cap. 13 (“GMO”) in that the court :
(i) 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; 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…
24. According to Rayden and Jackson on Divorce and Family Matters, 18th edition, Chap 36.14, the word ‘welfare’ should be interpreted as follows :
“The word ‘welfare’ must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only; the moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded. ‘Welfare’ and ‘best interests’ are synonymous.”
25. In UK where the same welfare principles apply to children matters and from which our s 3(1)(a) of GMO were derived, their courts are required to have regard to the matters specified in their Children Act 1989 which have come to be known as ‘the welfare checklist’, which consists of the following :
(a) the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding)
(b) his physical, emotional and educational needs
(c) the likely effect on him of any change in his circumstances
(d) his age, sex, background and any characteristics of his which the court considers relevant
(e) any harm he has suffered or is at risk of suffering
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
(g) the range of powers available to the court under the 1989 Act in the proceedings in question.
26. While Hong Kong has neither the Children Act nor similar welfare checklist, both our courts and practitioners have found many of the matters specified in the UK welfare checklist relevant and helpful in arriving at what is the best welfare of the child in question, which has in fact been recommended by our Law Reform Commission for our legislation, although it is also said in Rayden that while there is a duty to have regard to the checklist, judges are entitled to have it assumed in their favour that they will do so, without subjecting them to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one, and that the factors in the checklist are not exhaustive of the matters to which the court may have regard (Chap 36.17).
27. It is therefore with these principles in mind that I shall now proceed to first set out basically the parties’ respective case and proposed care arrangement for the child.
The Mother’s Case
28. The Mother’s case is that she has always been the primary carer of the child since his birth, that very strong emotional bond has been built between them, whereas the Father was never interested in the care of the child during the marriage and had spent long periods of time away from home working in China, and is therefore not properly equipped or experienced to take over the custodian role, as evidenced by his failure to take proper care of his son during access, while his failure to provide accommodation or maintenance for them when he walked out of their marriage shows his utter indifference or disregard for the welfare of his son that it is justified to deprive him any access to him, let alone his custody.
29. She has cited numerous examples of the Father’s lack of care or insufficient care for the child during access, including failing to give the child a shower after taking him to swim and causing him skin rash or irritation, failing to give him proper clothing thus causing him to catch cold or become sick, failing to help him with or get him to do his home work, and failing to feed him properly or sufficiently.
30. Furthermore, it is her case that the child has rejected his father, and has clearly indicated his wishes to the social workers and psychologists that he would not want to see his father in future, hence his such wishes should be accorded with respect.
The Father’s Case
31. The Father says that he is better able to meet the child’s emotional and educational needs than the Mother, as evidenced by the fact that the child was happy and well taken care of during his stay with him over the summer of 2010.
32. Since he works as a taxi driver from 6 am to 3:30 pm during which the child would be at school, the Father says he will be able to take proper care of him after school with the assistance of his sister who lives with him and with whom the child has a good relationship.
33. Notwithstanding their limited access to each other over the past 2 years, he says they have been able to rebuild their close and intimate relationship during the summer of 2010, and that rather than rejecting him as alleged by the Mother, he says that the child has in fact expressed his wish to live with him.
34. On the other hand, the Mother’s unstable and impulsive emotion, her failure to recognize the child’s needs for his father, her deliberate attempts to prevent access, and her failure to take the child to school punctually and regularly all show that she is not fit to be given his custody care or control.
35. If the Mother is given the child’s custody, given her past behaviour, it is most unlikely that she would comply with any access order, in which case father-son relationship will become virtually non-existent.
36. As noted above, at the heart of the parties’ custody issue is their dispute over the Father’s access to the child, which in turn will go to reflect or impact on their parenting capacity, but before going into the evidence of their respective case, it will be relevant to first consider as usual the reports of the Social Welfare Department, and in this case there are sadly more than the normal couple.
Social Investigation and other Reports
37. There are in fact 9 of such reports submitted to court throughout the proceedings, unusually high indeed in numbers but as already noted above many of them were the result of the Father’s difficulty in gaining access to the child despite the various orders in his favour, and will be apparent later, caused mainly by the Mother. They are in chronological order as follows :
(a) Social Investigation Report dated 10th July 2009 [PB : 40]
(b) Psychiatric Report dated 29th July 2009 [PB : 56]
(c) Further Social Investigation Report dated 28th August 2009 [PB : 59]
(d) Progress Report dated 30th December 2009 [PB : 69]
(e) Updated Social Investigation Report dated 14th May 2010 [PB : 82]
(f) Further Social Investigation Report dated 31st August 2010 [PB : 93]
(g) Psychological Report dated 1st September 2010 [PB : 110]
(h) Psychological Report dated 30th December 2010 [PB : 121]
(i) Progress Report dated 31st December 2010 [PB : 132]
38. The first 2 social investigation reports (a & c) were prepared by Ms Chow Siu-Fung while the later ones were by Mr Hui Wang-Hung after Ms Chow had been transferred out of the case in late 2009. As noted above Ms Chow in her 1st report suggested that the child should remain in the interim custody of the Mother, whom she found to have been the main carer of the child since birth, with reasonable access to the Father, but asked for a psychiatric report on the Mother apparently based on the following collateral information obtained from the medical social worker of PYNE Hospital and the clinical psychologists of Social Welfare Department (PB : 51) :
“43. Ms AU Wing-chee, Jay, Medical Social Worker of Pamela Youde Nethersole Eastern Hospital (PYNEH) Psychiatric Department, reported that the Petitioner was referred by the Chai Wan (West) Integrated Family Service Centre to their unit for follow-up on the Petitioner’s emotional problems arising from her marital relationship and financial problems in September 2008. Ms Au was the responsible caseworker since October 2008. The Petitioner was stressed by her husband’s lack of support in family maintenance and child care while her husband spent much time in the mainland. In January 2009, the Petitioner was hospitalised for her unstable emotion. She told Ms Au that she had risk-taking behaviour that she once rushed to the road with her son while a red light was on …
45. Ms POON Wai-ling, Maggie, Clinical Psychologist of Social welfare Department, reported that the Petitioner was referred by Tai Po (South) Integrated Family Service Centre for her emotional disturbances in June 2005. The Petitioner started to receive service from Ms POON in October 2005 after her house removal to Chai Wan. At the initial stage, the Petitioner presented with pre-dominantly obsessive compulsive symptoms which were under control after a period of intervention… Her condition was stabilized in October 2008 and the service was suspended.
46. … On 11 June 2009, Ms POON observed that the Petitioner’s mood seemed to be deteriorated and she thus referred her to the case medical social worker for consultation with the responsible psychiatrist for whether she needed an earlier appointment or not.”
39. The resultant psychiatric report from PYNE Hospital on the Mother revealed her following psychiatric history (PB : 57) :
(a) she has been referred for psychiatric service since July 2005;
(b) she was initially diagnosed to suffer from moderate depressive episode and dysthmia, and was prescribed with antidepressant treatment since then. Her mental condition was fluctuating because of perpetuating social stressors. Her oral drug taking was irregular, and in some of her follow-up appointments her father came instead as she was busy at work, and community psychiatric nursing care was referred since 16 September 2008 in view of her suboptimal mental state, irregular drug compliance and limited social support;
(c) she was later admitted to the psychiatric ward on 13-19 January 2009 because of suicidal and homicidal tendency due to increase in anxiety, irritability and depressed mood in December 2008, with frequent episodes of rushing into oncoming traffic with her son in suicide attempts;
(d) she was then diagnosed to suffer from adjustment disorder and dysthmia and was provided with antidepressant treatment and psychological consultation, and later discharged with regular follow-up outpatient attendances for between 3 and 8 weeks;
(e) on 9th April 2009 she was involved in an incident at a MTR Station when she was accused of using elderly octopus card and was subsequently arrested by police and charged for assaulting one of the MTR staff during the scuffle.
40. The report, prepared by a Dr Phyllis Lau of the Department of Psychiatry, concluded as follows (PB : 58) :
“In summary, Madam W has suffered from depression and dysthmis. With regular treatment, currently she appears to be mentally stable. She appears to be capable of childcare on her own when she is stable in mood. Her mother also appears to be a third party who can provide support to her childcare. Yet, in view of her history of suicidal pact with her son and violence to others, she needs regular treatment and follow-up. She also needs regular supervision from social worker and community psychiatric nurse regarding to her mental condition and her childcare.”
41. The further social investigation report that followed, and the last one by Ms Chow, focused more on the problems arising from the Father’s access to the child during the summer of 2009, of which the Mother complained about the child getting sick due to lack of care from his father, but it is revealing of Ms Chow’s report on the child’s following view about meeting with his father (PB : 66 ) :
“18. The child was interviewed alone at the undersigned’s office after respective interview with his mother on 13 August 2009 and with his father on 18 August 2009. In the first interview, the child mentioned that his father sometimes brought him to swim or went to Tai Koo Shing. He said that he felt unhappy when meeting his father and thus did not want to meet him anymore as he always made him sick. His father did not prepare a coat for him when they played in Tai Koo Shing which was cold. His father did not take him to attend swimming class and church activity. He also said that his father did not rent an abode for him.
19. During the interview on 18 August 2009, the child however said that he liked to meet his father and felt happy while with him. He felt equally happy to be with either his mother or father. He said that his father did not make him sick anymore. His father had actually bathed him after swimming. His paternal aunt’s food was sometimes good though sometimes not. When asked about why he had different views from the interview a few days ago, he said he forgot. He said no one coached him to tell particular things...”
42. It appears that Ms Chow accepted that the child did not in fact resist seeing his father, and therefore proposed that the interim access should continue and concluded in her report as follows :
“21. As observed, the child had satisfactory interaction with the Respondent. He did not genuinely reject to meet his father. The two parties’ lack of trust in each other and adequate communication seemed to be the contributing factors leading to their arguments. As for the child’s benefit, it is highly recommended that they should put aside their past and present adults’ conflicts and focus on cooperating in parenting. For minimizing the parental conflicts as far as possible, defined access with the venue and time specified is recommended.”
43. Sadly as noted above the resultant interim access as ordered on 5th November 2009 was still largely not complied with by the Mother, as confirmed by the progress report dated 30th December 2009 by Mr. Hui , replacing Ms Chow, and revealed that the Mother had stated clearly and firmly that she would no longer provide the child to his father for access because he would get sick after access, that the Father did not provide adequate food and water for him during access, that the access arrangement clashed with his extracurricular activities, and that she had never actually agreed to the Father having any access as he had not discharged his financial responsibility towards his son, hence she was not treated fairly by the court when it made the access order(PB : 74 - 75).
44. Some of these alleged reasons of the Mother for not allowing the Father’s access were then looked into by Mr. Hui who reported the following (PB : 75) :
“13. Individual interview was arranged with K on 18.12.2009. Without probing, K said that he became ill after each access. His father also failed to provide food to him and did not teach his school assignment during access. However, when being enquired that he actually had meals with Mr. C (the Father) in the Pizza Hut in Taikoo Shing during the staying access on 7.11.2009, K remained silence. Under encouragement, K recalled one the conflicts happened between his parents years ago when they were still living together. K said that they both argued in fierce manner with his father’s voice a bit loud. He felt frightened at that time but he could only remain quiet in his bedroom. He also said he sometimes wanted to show concern to Mr. C but eventually, he did not express it to Mr. C. K was then invited to draw a picture. He drew a picture reflecting his happy time with Madam W during picnic. After completing the picture, K re-stated his words during the initial phase of the interview that he did not want to meet with Mr. C.
45. Mr. Hui further observed in his report that despite this stated refusal to meet his father, K did appear happy to see his father on the 1st access occasion under the said 5th November 2009 Order and enjoyed chatting and playing with him (PB : 76 para 14). He further reported that the maternal grandmother who had assisted the Mother in the care of K also supported the Father’s access to K and agreed that the Mother should comply with the access order (PB : 76 para 16).
46. In addition Mr. Hui reported what he described as collateral information from various professionals such as other social workers and clinical psychologists involved in the parties’ disputes over the child, of which I find the following particularly relevant (PB : 77 – 79) :
“18. Ms SZE Pui-man social worker of Social Welfare Department Chaiwan (West) Integrated Family Service disclosed that she had tried to arrange individual and joint interviews for Madam W, Mr. C and K in order to facilitate the access before last Court hearing. However, effort was in vain and the interviews usually ended up in disputes. However, Ms SZE considered Mr. C was comparatively objective and reasonable as reflected from his rejection of Madam W’s suggestion of inviting K to the joint interview in discussing the access matter. Mr. C perceived such arrangement would do harm on K during their process of argument which would most likely be happened. Ms SZE supplemented that during individual interviews with K on 9.10.2009, without any probing or enquiry from her, K said that he did not want to have contact with his father with similar reasons stated by Madam W. It included he was not fed by his father and he always became sick after access…
20. Ms POON Wai-ling, Maggie, the responsible Clinical Psychologist of Madam W, disclosed that the latest interview with Madam W was on 20.11.2009 with coming appointment was scheduled on 19.1.2010. Ms POON remarked that Madam W was usually late and sometimes missed the scheduled interviews. Ms POON depicted Mdm. W as moody, guarded and sometimes impulsive. Ms POON perceived that arising from the present disputes between Mdm. W and Mr. C, some undesirable effect had already exerted upon K’s development…
24. Mr. HO, the Clinical Psychologist of the Chaiwan Special Assessment Centre disclosed that K was referred by the Medical Officer of the Student Health Service and a psychological assessment aiming at the checking of K’s attention ability was conducted on 10.12.2009. However, the first assessment could not be successfully carried out and another assessment was arranged on 29.12.2009 for K.
25. According to the telephone contact with Mr. HO on 29.12.2009, he said that K had no attention problem. His performance was normal as compared with other children of his same age group. However, Mr. HO clearly observed Mdm. W lacked confidence and skills in parenting. She became particularly stressful in parenting. Yet, close mother-child relationship was noted. Mr. HO also shared that K’s present anxiety emotion was highly related to the separation of his parents.”
47. Mr. Hui concluded in his report that under the circumstances and in the interest of K’s welfare, it would be appropriate to obtain a clinical psychological report to re-evaluate the question of custody and access, as well as an updated psychiatric report on the Mother’s mental condition, and meanwhile the interim access order should continue, but the handing over of K should instead take place at the Social Welfare Department so that it can be better facilitated and monitored.
48. The next report submitted by Mr. Hui was dated 14th May 2010 in which he updated the Father’s access situation as the same as before, i.e. none whatsoever, as notwithstanding advice from him or her lawyers, the Mother was still adamant that she would not comply with the access order, as “she perceived her action as protecting K’s welfare and right who said that he was not willing to have any contact with the father” (PB : 85 para 11).
49. Mr. Hui further reported the Mother’s attitude on access in paragraph 12 as follows :
“Mdm. W maintained her previous attitude that no access would be prepared for Mr. C if she was granted with the final custody. If she was not granted with the custody of K after subsequent court hearings, she would request Mr. C in paying back all the expenses that she spent on K. For access arrangement, Mdm. W requested for reasonable access at any time that she wished.”
50. Mr. Hui also dealt with the Father’s frustration of not being able to have any contact with his son since late 2009 in paragraph 13, and suggested to mediate between the parties by bringing in K into the process, to which the Father disagreed, and it would be of assistance to refer to the basis of his objection reported as follows :
“15 … He considered that if K reacted positively in the observation, he worried that his son would receive some unpredictable influence when the other party noted K’s positive interaction with him as described in the report. On the contrary, if K showed negatively, which he considered as possible, such result would also be reflected in the present investigation. However, Mr. C considered the reason for the negative interaction between them was due to the present long separation as having no access arranged for him. Thus, he expected for a normal access instead of an observation of interaction of which the purpose was merely for Court’s purposes.”
51. Mr. Hui then gave his following observations of the Father :
“28 ... Mr. C persistently tackled the issue in a rational manner and legally handled the related procedures. Nevertheless, he had no contacts with K since 21.11.2009. He had thought of other indirect means, such as approaching the Student Guidance Personnel of the Meng Tak Catholic School, with a view to merely have some understanding of K’s recent condition. However, after seriously considering the possible negative influence on son, he withheld his decision. Yet, during the process he experienced tremendous stress and ups and downs in his emotion. Fortunately, he got support from his family and friends, intervention by Clinical Psychologist of SWD as well as his own psychological strength. Mr. C could so far deal with the matter rationally. Being a law-abiding citizen, Mr. C truly felt that his legal right was not being protected and seemingly, he could only wish for changes on K until the latter become mature of having ability for independent thinking.”
52. Mr. Hui concluded his report by urging that in the circumstances of the present situation of the case, a “custody and access evaluation report by Clinical Psychologist was crucial in assessing the present situation and the formulation of future welfare plan for K. Furthermore, an updated Psychiatric Report for Mdm. W was also suggested in order to assure a comprehensive and detailed understanding of the mental state as well as mental fitness of Mdm. W in providing child care…”
53. Things as noted above took a turn on 8th June 2010 when the Mother, apparently under the threat of contempt proceedings, agreed to the Father having staying access to K during his summer break from school, and as a result an order was made accordingly by this court, and Mr. Hui submitted his next report towards the end of the Father’s summer access.
54. That report, dated 31st August 2010 (PB : 93), revealed that K did enjoy his stay with his father during the summer with various activities without any particular problem or interruption until the end when he was reluctant to return to his mother, which was in my view a rather natural reaction from a small child under the circumstances, although it does show that either what the Mother had earlier claimed that he did not want to see his father to be untrue, or that he has since re-established his good relationship with his father.
55. The report however also revealed that there was perhaps another reason why the Mother suddenly changed her mind on that occasion and agreed to the Father spending K’s almost entire summer vacation with him, when she disclosed to Mr. Hui that she was hoping for a family reunion with the Father which led to some meetings and discussions between them in early August 2010 (PB : 98 – 99). Sadly their meetings led to no resolution but only unpleasant and distressing incidents in front of their child, the details of which will no doubt be looked at when I come to consider their evidence, it may however explain why the Mother would afterwards become intractable again with the Father’s access to K, as will be apparent later in this judgment.
56. Upon obtaining further collateral information from various involved professionals, as well as the respective views of the parties and the child, Mr. Hui as noted above arrived at a different recommendation as to custody from his predecessor in this report :
“35… K, the child in question, showed marked improvement in expressing his feeling. He obviously indicated his internal conflicts and frustration in facing the custody and access battles between his parents in the individual interviews. He had no choice but to face against the direct confrontation of the adults that took place in various public areas, including the office of CPU3, streets, fast food shop and along the journey in a public bus. He had once made a dangerous attempt of rushing back in a moving bus when he wanted to leave from his mother’s care but to return to his father’s side…
36. K provided different decision as he indicated in the present report and last Social Investigation Report submitted on 14.5.2010. However, the undersigned observed that for the current investigation, K was capable to formulate his opinion in a more organized and step-by-step manner. He could differentiate the strengths and weakness of his parents and point out the subjective experience when he stayed with his either parents and point out the subjective experience when he stayed with his either parents. Most important of all, he could cognitively perceive his parents were still good to him despite that he was emotionally disturbed inn their conflict. During the individual interviews with K on 31.8.2010, despite his emotional fluctuation in the course of negotiation, his decision to live with his father was clearly and repeatedly expressed. After all those hard days, he decided that he preferred to live with his father. He also had much anxiety of not seeing his father again even he was assured by Mr C and Mdm. W on their joint agreement on 31.8.2010.
37. For the Petitioner, the past and present investigation indicated that she could take appropriate daily care to K. the regular school attendance, her genuine consideration in addressing the emotional issue of K and consented the referral made to the Drama Therapy reflected that she was aware of the psychological needs of K. Despite her past un-cooperative attitude in following the access requirement as required by Court, her current initiation in allowing staying access for K indicated that she had made some reflection. Nevertheless, her strong resistance of allowing access to the Respondent if she was granted the custody reflected her limitation to see the emotional need of K with his and her strong attitude would further affect the proper growth and development of the child-in-question.
38. During the staying access as granted by Court, the Respondent managed to arrange relevant social, academic and recreational activities for K. K was also properlt taken care by the Respondent and his paternal family. He further took 2-weeks leave so that he could have more time to spend with K. When the father-son interaction was observed, they interacted peacefully, naturally and closely with each other. Towards the end of the staying, the Respondent did show some indecisive attitude in arranging K back to the care of the Petitioner. With intensive counselling and explanation by the undersigned, the Respondent was receptive and had made every effort to explain to K to facilitate the handing-over of K to his mother’s care.
39. In sum, present investigation indicated that K was suffered in the striving process on custody and access between the Petitioner and the Respondent. Despite his courage and strength to express his views in the present investigation, he was actually deeply hurt as he repeatedly said that he was afraid to observe his parents’ conflicts again and again. Nevertheless, the past and present investigation revealed that K had equally developed bondage and emotional ties with his parents. As noted in the report of the Drama Therapist that K wanted to maintain peace and disliked conflicts, this observation was coincide with K own description of the peaceful environment in father’s home. His own account that he slept well during this staying access was vivid and impressive in the interview.
40. Having considered the overall child’s relationship with respective parents, the child care ability of both parents, and most of important of all that taking into consideration of K’s preference, it is recommended that :
(i) the custody of the child-in-question, namely K, be granted to the Respondent; and
(ii) the Petitioner is given the right of reasonable access.”
57. Mr. Hui’s observations of the positive relationship between K and his father were in fact shared by the psychological report submitted at the same time by Ms Christine Chan, a clinical psychologist of Social Welfare Department (PB : 110), but before going into her own assessments, it would be helpful to note her following clinical interview with the Mother of her desire to reconcile with the Father and her perception of her son’s needs :
“12. Overall speaking, Ms W sees K as an introverted and passive child, who is receptive to her guidance in general. As reported, the boy had been diagnosed with emotional problems, which constitute another major concern of the mother apart from his speech problems. From her perspective, his emotional disturbance was caused largely by the family disharmony prior to the marital breakdown and by the fact that he was forced to see the father after separation. In this connection, she repeated some of her allegations against Mr. C as stated in the previous social investigation reports, such as his inadequate care of the son during the past visitation. She also claimed that the son had become happier with more stable mood after living apart from the father and seeing him less often. To tackle the child’s emotional problems, she reported to have enrolled him in a therapeutic group this summer holiday. She said that she would continue to look for suitable and affordable therapeutic or recreational activities for the child and herself in the future. On the CBCL filled out by the mother, there are marked elevations on most problem scales, which is reflective of her perception that the boy has manifested multiple internalizing and externalizing problems that are worthy of clinical attention.
13. Toward the end of the interview, Ms W revealed on her own initiative that she had talked to Mr. C recently about the idea of family reunification as she realized that the child wished to have a complete family. She also presented to have attended some training herself to learn more about effective couple and interpersonal communication. But to her disappointment, her suggestion was not accepted by Mr. C. In that case, she indicated outright that she would not work with him on the childcare matters. From her point of view, it was Mr. C who had given her up and caused her and the son to suffer from emotional problems.”
58. As regard her clinical interviews with the Father, Ms Chan found a big difference in his perceptions of his son’s needs and his proposals as to how to meet them from those of the Mother :
“15. Mr. C deems the quality of the father-child relationship as good all along. When the boy was smaller, he presented that he was equally attached to him and the mother. He remembered that he would teach the son homework, escort him to interest classes, and sleep with him prior to separation. He also reported that the boy adapted to the paternal home environment quickly and they related to each other very well soon after the staying access was resumed in mid July. In his eyes, K is an active, curious, and happy child, who obeys rules and has good memory, yet he is not very sociable and tends to be afraid of failure with inadequate self-confidence … As reported, he had arranged a variety of activities for the son during this summer holiday apart from doing exercises and revisions at home, e.g. attending kung-fu lessons, playing badminton, and visiting museums. On the CBCL filled out by the father, the clinical profile falls within normal bounds, thereby suggesting that he does not regard the child as suffering from serious conduct problems or mood disturbance at this stage. It is obviously a big contrast to the mother’s perception.
16. According to Mr. C, he took initiative to send text messages to Ms W after the last Court hearing on 8.6.2010, assuring her that he would be ready to arrange for the child to meet with her during the staying access in the summer holiday. Additionally, he had copied to her the timetable of K’s summer programs. By doing so, he presented that he wished to build a new relationship with the mother, which would be characterized by mutual respect of each other’s role in the child’s life. It seems that the tension between them had somewhat decreased in the initial period of the said staying access, as reflected by the fact that they had dined out together with the son several times. He also mentioned that he had encouraged K to call the mother when he was staying at the paternal home, yet the boy’s attitude was said to be unenthusiastic at times. Furthermore, he noted that the child might try to please one parent by saying that he was not treated well by the other parent, and he showed understanding of the pressure the child might have gone through when confronted with the parental disagreements. After the assessment session on 3.8.2010, Mr. C and Ms W no longer had joint gatherings with the son. Reportedly, there were still occasional telephone contacts between the mother and K since then.
17. If Mr. C is granted the child’s custody. He will keep the existing living arrangement, and the paternal aunt and grandfather were said to be willing to assist him in looking after the child. In his descriptions, K is on good terms with the paternal aunt, who can offer academic help to him, whereas the relationship between the child and paternal grandfather is comparatively more distant, probably due to the latter’s hearing problem. On the whole, Mr. C gives an impression that he has given serious thoughts to the future child care plan. When asked about his handling if the boy refuses to see the mother, he replied that the boy is likely to be more cooperative in his presence and thus he would accompany him to access meetings, should he really become the custodial parent.”
59. Ms Chan then reported her following positive observations of the Father’s parenting attitude and capacity :
“20. On the Parenting Stress Index, there is no indication of significant defensive responding and the test results are considered as valid for interpretation. His clinical profile does not suggest that he is now being overwhelmed by a great deal of parenting stress. In his perception, the child does not display characteristics that have made it hard for him to fulfil his parenting role. As a parent, he is able to feel an emotional connection with the son and tends to experience him as a source of positive reinforcement. Moreover, he gives an impression that he enjoys being a parent and is confident of his ability to manage the child care responsibilities. But he seems to think that the boy was sometimes too clinging during the present staying access, as reflected by the fact that he would call the father many times to demand his earlier return to keep him company. He said that he had tried to arrange for K to spend more time with his peers and other paternal caregivers.
21. Ac review of his written responses on the Child Care Situation Questionnaire shows that Mr. C is aware of the need to examine the reasons for the child’s noncompliance, to teach him proper ways to solve problems, and to help him understand that he has to take responsibility for his wrongdoings. Besides, he gives an impression that he supports the use of communication and a reasoning approach rather than coercive methods for child discipline. He also appears to realize that it is necessary to seek professional assistance for the child in certain circumstances. Regarding his parental strengths, he tends to view himself as being concerned about the son’s developmental needs and being able to spend ample time with him. Furthermore, he believes that he understands what the son is good at and is able to make the related adjustments. As for his shortcomings as a parent, he admitted that he may sometimes proceed to action before he comes up with the best plan. He is also able to acknowledge that Ms W has put a lot of effort into supervising the son’s homework.
22. Consistent with the interview data, his questionnaire responses indicate an awareness that he should encourage the child to maintain continuing contact with the other parent after divorce. He has also demonstrated an understanding that he should let the child see that his parents can still get along with each other peacefully despite their separation. Nonetheless, it was noted that he had showed K a newspaper clipping about the wounding case Ms W was connected with in 2009. He explained upon probing that he did so with the intention of reminding the son not to get involved in any conflicts that might happen between the mother and one of her neighbours, who reportedly comes from the Mainland China. But it seems that he had not duly considered the possible negative impact on the son’s impression of the mother.”
60. It would also be relevant to refer to Ms Chan’s following clinical observations of K in particularly as to his positive relationship with his father, which seems to differ quite significantly from the Mother’s case :
“24. His overall self-esteem, as measured by the Culture Free Self-Esteem Inventory-2 is classified in the intermediate range. Specifically, he enjoys very high parental self-esteem, as reflected by his perception that he feels being loved and understood by his parents. He also tends to view himself as happy most of the time, yet he admitted to having many worries. At the evaluation, he did not feel like talking about what bothered him despite probing. It should be noteworthy that his social self-esteem is found to be low, which may be partly related to the fact that he only has few friends and feels being picked on by his peers at school. In the playroom observation, his free play was focused with a generally positive emotional tone. No morbid themes or signs of severe psychological maladjustment were detected on his play.
25. In his family drawing, K portrayed himself playing football with his father happily and his paternal aunt walking near them. On the Family Relations Test, he is also found to harbour predominantly positive feelings toward the father and paternal aunt. Of his caregivers, the father is deemed as his major source of love. Besides, he seems to hold dependency feelings toward the father and he wishes that the father can spend more time with him. As reported, when he is naughty, the father would remind him to behave better instead of scolding him harshly. His favourable impressions of the father are consistent with his report that he has had a pleasurable time during the recent staying access. Upon probing, he indicated that he had made a mistake in saying that he fell sick after the previous visitation and did not want to see his father when he was smaller. His feelings and perceptions about the mother will be examined in the coming assessment sessions.”
61. In concluding this report Ms Chan found the Father to be an adequate parent, that he was genuinely concerned about his son, that he was equipped with some positive parenting qualities, and that father-child relationship was intimate despite an absence of visitation for more than 6 months, but she had withheld her views on the custody issue as the Mother had requested that the clinical assessment of her be postponed until K had returned to her care after his stay with his father over the summer, which was to come in Ms Chan’s next report.
62. That report, which was largely geared towards the assessment of the Mother’s psychological adjustment and parenting capacity, was submitted some 4 months later on 30th December 2010 (PB : 121), during which the Father’s weekly access to K under the court order of 5th November 2009 again could not be implemented, and in Ms Chan’s clinical interviews with her, the Mother was reported to have given this explanation :
“6. According to Ms W, while K did not appear very happy initially after he was restored to her care on 31.8.2010, their relationship resumed normal in about two weeks’ time and he is now very attached to her, just as usual. Regarding the access situation, she alleged that the boy has been reluctant to see the father over the recent months even in her presence. From her point of view, his resistance to visitation has to do with the fact that he knows the father did not take good care of him and caused him to fall sick and to have skin irritation. She presented that she did encourage him to call or see the father, yet he would get upset and ask her not to force him any more. She also claimed that he had made suicide threats lately in order to stop her from asking him to see the father.”
63. Not only was this alleged resistance of K to meet his father in significant contrast from Ms Chan’s earlier observation, the Mother’s views on the issue of custody and access also seem to cause Ms Chan concern when she reported as follows :
“7. Given that she has taken up the primary care-giving role since the child’s birth, Ms W believes that she has much closer psychological ties with the son and has a deeper understanding of his needs and feelings as compared to Mr. C. She thus view herself as a more suitable custodial parent. Indeed, she gives an impression that her life has centred on the son all along. But there appear to be some unhealthy signs of emotional over-involvement on her part, as reflected by her utterance that it would be like losing everything and she would not rule out the possibility of hurting herself if she did not get the custody of the child. Some effort was then made to discourage such maladaptive thinking, and she indicated that she would probably be fine if she could keep seeing the child.
8. Ms W does not give an impression that she is absolutely against the option of joint custody, although it may not be her most preferred arrangement. In her opinion, if she obtains the custody of the child, access should not be granted unless she is present and the father provides them with financial support. Her company is required because she feels that it will help to reduce the chance of the son falling sick after access in the future. However, it does not sound like a well-grounded argument. When asked about the potential benefits of access, she frankly replied that she could not think of anything good about maintaining regular father-son contacts.”
64. Equally worrying to Ms Chan is the result of the Mother’s psychological test for measuring her emotional functioning, when Ms Chan reported as follows :
“9. It took Ms W a very long time to complete the Chinese Minnesota Multiphasic Personality Inventory-2, a well standardized psychological test for measuring her current emotional functioning … A review of the validity scales profile suggests a possibility that she might have exaggerated her problems and the obtained clinical scales profile should therefore be interpreted with extreme care. Individuals with such an elevated profile tend to be immature, brooding, distrustful, self-centered, and lacking in self-confidence. They are also likely to have difficulties forming close relationships and experience a significant level of social maladjustment. When told about these test findings, Ms W did not show strong disagreement and claimed that she has been going through some personality change with improved interpersonal relationships because of the positive influence of her work supervisor. Nevertheless, her emotion regulation ability was commented as weak by Ms Poon Wai-ling, the clinical psychologist who has treated her obsessive-compulsive and depressive symptoms for several years...
11. While Ms W has temporarily suspended her psychological treatment with Ms Poon Wai-ling because of the custody litigation, she continues to attend psychiatric follow-up on a regular basis. She reported that she is still on antidepressant and that although she had previously forgot to take medication, her drug compliance is now satisfactory. She also presented her mood as very stable at this stage. She admitted to having suicidal ideation before, which was induced by her miserable childhood experiences and marital conflicts, yet she denied any suicidal attempt so far. She even claimed that her hospitalization in early 2009 was due to a misunderstanding rather than her suicidal risk. Her account was clearly different from the information stated in the psychiatrist’s report dated 29.7.2009. When asked about her stress coping methods, she indicated that she has expanded her social networks and has opened up more after working in the insurance field. She also presented to have gained much emotional support through mutual sharing in a therapeutic group for divorced women.”
65. As to the Mother’s parenting attitudes and capacity, Ms Chan made the following critical observations about her attempt to impose her negative views about the Father on the child :
“12. On the Parenting Stress Index, Ms W did not appear to have responded in a defensive manner and the results can be regarded as valid for interpretation. Overall speaking, there is no indication that she is currently experiencing a clinically significant level of parenting stress. The Child Domain score is found to be elevated, which suggests that from her perspective, the son possesses certain attributes that are likely to make the parenting job more difficult, e.g. being moody and easily distracted. Nevertheless, she seems to feel competent enough to look after the boy and manage his behaviours. It is also evident that she feels a sense of emotional closeness to the son and their interactions have engendered some good feelings about as a parent.
13. … In her perception, her parental strength lies in her patience and attentiveness to details. As for her parental weakness, she deems herself not well-educated and so she needs to rely on aids to teach him homework at times. When asked about the possible reasons for her being the only target of her son’s aggression, she quickly attributed the problem to the fact that he had witnessed the father’s violence toward her in the past. Another reason she put forward was that the boy knew for sure she would not hit him back or scold him harshly. However she has not considered the possibility that it might have something to do with her disinclination to set firm limits and deliver apt consequences when he misbehaves or throws temper tantrums. She seems to think that if she punishes him, he will hate her very much.
14. Upon probing, Ms W admitted that she would let the son know the father’s irresponsible behaviours and what brought about the family disintegration. She further indicated that it was important for the son to know the truth and that she wanted him to realize what kind of person the father was. But by doing so, she appears to have placed her own needs and interests before the child’s and to have lost sight of the fact that her revelations might cause some unnecessary emotional upset to the boy.”
66. Given this position of the Mother, it is perhaps not surprising that Ms Chan went on to report that K appeared to have changed drastically his views towards his father since his return to his mother’s care after the summer as follows :
“21. It was noted that the boy deliberately spoke ill of the father in the present evaluation, which is a big contrast to the last assessment. Specifically, he claimed that the father was very fierce, but he failed to cite concrete and convincing examples to substantiate his allegation upon probing. Moreover, he accused the father of making him sick, not fulfilling his responsibilities as a parent, and wanting his mother to go to prison. What he said was almost identical to the complaints the mother had raised against the father. In fact, he later confirmed that he learned of the information from the mother, and he asked the psychologist not to let the father know his negative remarks about him. When asked if he missed his father, he gave a negative reply, yet with a playful smile. Despite his unfavourable comments about the father, he was willing to admit upon probing that he actually loves both parents. He also spontaneously expressed his fear of making the father angry with him if he would like to live with the mother and his worry of displeasing the mother and maternal relatives if he chooses to stay with the father. Apparently, such revelations are reflective of his internal struggle arising from the loyalty conflict between his parents. When asked about his reaction to the arrangement of further contact with the father in the future, he responded naturally that it was not a bad harm thought or intent when this issue was discussed.”
67. Ms Chan summarised her findings from her 2 assessments at the conclusion of her report (PB : 130 – 131, para 34 & 35) that while the Mother may have great concern about his mood problems, the child in fact is not suffering from any clinically significant psychological disturbance with no marked impairment in his overall functioning, that in general he is an emotionally dependent and socially immature child who is amenable to reason and willing to follow rules, and that he is emotionally attached to both of his parents and receptive to their guidance, but is caught in some very intense loyalty conflicts between his parents.
68. She then gave her assessments of the parties’ parenting capacity and her rationale in arriving at her conclusion that it would be in the best interests of the child that the Father be given his care and control :
“d) If the mother remains to be the primary caretaker of the child, it has the advantage of maintaining the continuity of care. In addition, as compared to the father, she appears to be more sensitive to the child’s physical needs and to pay more attention to cleanliness. Notwithstanding, the father is assessed to be more suitable to the primary care-taking role and the reasons are as follows :-
The father seems to have more parental authority over the child, as reflected by the fact that the child tended to behave more properly with fewer temper tantrums in his interactions with the father and that his violent acts were only observed in his interactions with the mother
The father is impressed to be more able to refrain from speaking ill of the other parent and talking about adult issues in front of the child
The father seems to hold a more open and positive attitude toward access and has demonstrated greater awareness of the need for the child to keep contact with the other parent after divorce
The father is found to have a more stable mood with better psychological adjustment and emotion regulation ability
The father seems to be leading a more settled life with no debts and more harmonious family relationships.
69. At about the same time Social Work Officer Mr. Hui also submitted his progress report (PB : 132) to deal mainly on the Father’s access which confirmed its non-implementation as the Mother had continued to fail to bring K to the Social Welfare Department for handing over to the Father under the terms of the access order. However Mr. Hui also reported that K had been late or absent for school for some 20 times since mid-November 2010 for various reasons offered by the Mother such as illness or missing the usual transportation. This matter has unfortunately also become a major issue between the parties, as it is the Father’s case that the situation has continued and has adversely affected the child as to his schooling, thus negatively reflects on the Mother’s parenting capacity.
70. This turned out to be the last report submitted into court before the conclusion of the trial, and while there had been a total of 9 reports prepared by different professionals, only the second social welfare officer Mr. Hui and clinical psychologist Ms Chan were by agreement of the parties required to attend the trial to give evidence.
71. Both Mr Hui and Ms Chan had stood by the findings and recommendations of their reports and were in consensus as to their firm view that it would be in the best interests of the child to be under the care and control of the Father. While the Mother obviously does not agree with their views, to her credit Mr. Wong on her behalf did not in the main take issue with the factual accuracy of their reports, but rather argues that they should have confined their investigation to facts-finding and should not have made any recommendation on the issue of custody, that in any event their recommendations are wrong under the circumstances, and that their reports were not entirely up-to-date as the Mother has since attended various courses to improve her parenting capacity.
72. The last point can perhaps be easily dealt with first in that anything that may have occurred after the reports were submitted obviously could not have been considered by the officer at that time, but when it was put to Mr. Hui in court, his response was that from his more recent contacts with the parties he had not noticed any change or improvement in the Mother’s handling of the access situation.
73. As to the 1st point raised by Mr. Wong in his submission for the Mother, he relies on 2 judgments of the Court of Appeal, WSM v FSY CACV 352 of 2004, and Naziya Aslam v Rafaqat Ali CACV 144 of 2003, where Cheung JA said in the former :
“24. We will further add that a social welfare report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal assumption which needs to be rebutted. Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles…”
74. Similarly in the latter case Rogers VP said this :
“28. … that the welfare officer’s position to make a recommendation should arise when the circumstances of the case are particularly clear. The welfare officer should not make a recommendation as a matter of course and should certainly not do so where it is a question of a balancing the relative merits of one course or another, unless specifically invited to do so by the court. The exercise of the judge’s discretion should not be trespassed upon. In any event, it seems to me that the correct approach to a recommendation made by a welfare officer is set out in the judgment of the Court of Appeal in Re V (residence : review) [1996] 3 FCR 101 at p.110F :
‘In a judgment where a Judge gives reasons for his decision and those reasons demonstrates that his decision is not manifestly wrong he is not under any further duty to spell out his reasons from departing from the court welfare officer’s report. In this situation the Judge’s reasons for reaching his own decision are normally the very reasons for his declining to follow the court welfare officer’s recommendation.’”
75. However, as noted above it is not Mr. Wong’s submission that it was wrong for the welfare officer Mr. Hui to make his recommendations in this case, but rather the circumstances in which he made them : right after the child had spent a happy summer with his father, and without observing his interaction with his mother after his return to her home which has since moved to a bigger and more comfortable home than their last one. In other words, the recommendation was not based on what he submitted to be the current circumstances.
76. I agree that right after spending what Mr. Wong has described as “honeymoon period” with his father, the child’s apparent preference for him over his mother may not be wholly reliable as to his true wishes, which can be said to be a normal or natural reaction of a small child under the circumstances, as demonstrated by his reluctance to return to his mother seemingly without any valid reason. However, as explained in both his report and testimony in court, Mr. Hui did not arrive at his recommendations on the basis of only the child’s preference, of which he has clearly observed close and intimate bonding and relationship with both of his parents, but also on other factors, including the Father’s better ability to meet his needs and the adverse effects on him by the Mother’s stance on access.
77. As for Ms Chan’s recommendation, all Mr. Wong can say in his submission is that it was made some 6 months ago without the benefit of seeing the improvements the Mother is said to have made since by attending various courses on emotion control. Whether it is indeed the case is a matter of evidence before the court, of which I shall now come to consider, starting with what I have considered to be the central issue between the parties : their dispute over access.
Issues Arising From Access
78. There have been a total of 6 access orders made in these proceedings, dated respectively 17th July 2009 (PB : 18), 3rd September 2009 (PB : 22), 5th November 2009 (PB : 26), 8th June 2010 (PB : 30), 4th October 2010 (PB : 37), and 14th July 2011. The 4th and the 6th orders dealt only with the summer access of 2010 and 2011 respectively, while the others were about the more routine weekly access starting essentially with the 1st order which gave the Father both visiting and staying access on weekly basis, with only slight modifications as to the time and mode in later orders.
79. That order, made in July 2009 as a result of the Father’s initial application for interim access and happened to be the child’s summer vacation, basically therefore covered only a period of about 6 weeks pending the social investigation report and gave the Father interim visiting access on Tuesdays from 3 pm to 7 pm and on alternate Saturday from 12 noon to 8 pm, as well as staying access on alternate Friday from 6 pm to Saturday 8 pm.
80. The 2nd order dealt with an even shorter period basically the month of September 2009 as the child was then just starting his new school term and the parties needed time to work out a mutually acceptable schedule around his new school attendance and other activities, which eventually led to the next relevant access order of 5th November 2009, under which the Father was to have visiting access on alternate Saturdays from 10 am to 8 pm and staying access on the other Saturdays from 10 am to Sunday 10 am, with the Mother to bring the child to the Wan Chai office of Social Welfare Department for handing over to the Father who was to return the child to the maternal grandmother at the end of each access (PB : 26). This is the order which has since been in force as to the date and time of his weekly access but which he has complained of being persistently flouted by the Mother.
81. In support of his case the Father’s solicitor Mr. Leung has produced a schedule of those occasions which the Father was supposed to have access under the relevant court orders and the occasions when access did take place successfully, over a period of about 18 months from 17th July 2009 up to 23rd January 2011, shortly before the start of the trial, in Exhibit “R-1”. His figures, which were not challenged by the Wife, show that of the 70 occasions scheduled for access, only 18 were successful, with the majority of them (13) occurred during the first 2 months of the 1st order between 18th July and 20th September 2009. It is therefore not disputed that save for 2 other occasions in November 2009, no further access took place for the next 7 months until that long summer access in 2010, and thereafter again no access except a couple of times during the Chinese New Year in late January 2011, and the present summer access which could take place only after the Mother had been committed for contempt of court on 1st August 2011 as referred to above.
82. The Mother’s explanations for what she described as “practical difficulty” as to the Father’s access have been summarised by Mr. Wong on her behalf in paragraph 143 of his closing submission as follows :
- Misunderstanding as to the definition of Summer Vacation;
-Frustration of the hope of re-union;
-Refusal by son; and
-Sickness of son after visit by the Father and her limited means.
83. It would not be helpful or necessary in my view to consider the 1st factor since it relates to the summer vacation access only which was as noted above by and large successful in 2010. The other 3 factors on the other hand may well go into the heart of the parties’ parental capacity : if they are true, they will exonerate the Mother and instead put the Father’s capacity in question; otherwise they go to show that the Mother has put her own selfish desire over the needs of her son, and will seriously impact on her parenting capacity. It would be necessary to consider each factor separately, although it will be apparent that some may well be connected to the other.
Frustration of the Hope of Re-Union
84. This factor was as noted above first revealed by social welfare officer Mr. Hui in his report of 31st August 2010 when the Mother indicated to him of her desire for a family reunion with the Father so as to provide a complete home for their son, which was also confirmed by the clinical psychologist Ms Chan. While I have no doubt of such desire of the Mother during the summer of 2010, be it for the benefit of her son as she claimed, or because of her financial problems, or both, but whatever her motive may be, the question to ask must be this : Was it appropriate for her to being difficult on access caused by her frustration over the failing hope for a reunion with the Father, or even worse, for her to use it to put pressure on him? The former indicates an inability to control her emotion, while the latter points to something even more unfitting : her wilful disregard for the Father’s right under a court order and her son’s needs for his father.
85. Either way it would be helpful to go into more details as to exactly what the Mother did to try to reconcile with the Father over that summer, in particular as to one incident on a bus involving the child as well, and which the Father says typified the Mother’s impulsiveness.
86. Although no affirmations have been filed by the parties of those events, their details can be found in Mr. Hui’s report of 31st August 2010 PB : 98), while evidence were also adduced by both parties at the trial. It seems that they had met several times during the early stage of the Father’s summer access to K to discuss the Mother’s proposal, but when the Father rejected the idea at their last meeting on 3rd August 2010, a quarrel ensued according to the report as follows (PB : 99) :
“ ,.. Argument between them continued in the fast food shop. K said that his mother attempted to sit close to him. However, the seat was designed for 2 persons and his mother’s action made him feel uneasy. Their argument did not stop after they had got on the bus. Their dispute even turned into heated quarrel. Mr. C attempted to report to police as Mdm. W insisted to bring K home though K rejected. During their conflict, K said that the mobile phone of his father was broken by his mother. His father then asked K to call police for assistance as K also had one mobile phone, but he was stopped by his mother. Their conflict then temporarily stopped. According to K, he pretended to change his mind and got off bus with his mother. However, he suddenly rushed back to his father who was in the upper deck of the bus when the bus’s door opened. Mr. C and Mdm. W had short quarrel again and eventually, Mdm. W left bus and returned home. As depicted by Mr. C, K continued to show frightened emotion on the way back to his home.”
87. Save for insisting that the breaking of the Father’s mobile phone on the bus was just an accident, the Mother basically did not dispute that report at the trial, and while both parties had behaved improperly in front of their son in public, there is no question in my mind that the Mother was more to blame for instigating the dispute first and for trying to snatch K away from the Father after he had rejected her reunion proposal, an implication which, if not a sudden loss of self-control in the heat of anger or disappointment, must then be an attempt to blackmail or punish the Father, and by using her son as a pawn in that process, she showed a total disregard for his welfare and safety.
88. Whatever the real intention of the Mother’s behaviour on that occasion and its implication, of which it can always be argued on her behalf that it was just an isolated incident, the 2 remaining factors relied on by Mr. Wong are certainly much more chronicle over the past 2 years. The factor of the son refusing to meet his father can in my view be easily dealt with.
Refusal of Son to Meet his Father
89. The Mother first put forward what she claims to be the reasons why the son was not willing to see his father in her solicitors’ letter dated 5th October 2009 and exhibited to her Affirmation of 30th October 2009 (PB : 281), mainly that his father had hit him before and taken away the television, and that the food prepared for him was not good.
90. Granted that some of these reasons had in fact been repeated by the son to the first social welfare officer Ms Chow in her reports at the early stage of her investigation, it is quite clear that access was initially by and large successful, as evidenced by those reports and the schedule in Exhibit “R-1”, while the later social investigation and psychological reports all revealed a close and intimate father-son relationship, that the son had been badly affected by his parents’ disputes and was torn by loyalty conflict which may explain his initial resistance to his father’s access, and that the subsequent successful summer access in 2010 clearly shows that that factor cannot sustain.
91. Furthermore, from the later social investigation reports and psychological reports there are strong basis to suspect that K may very well have been influenced or manipulated by his mother to speak against his father, which is in fact all along the Father’s case that the Mother has been trying to manipulate and alienate the son from him by making up these factors, especially the next and remaining one that I shall now turn to, and which he says will go to show the extreme measures that she was prepared to take to cut him off his son entirely.
Son became sick after access
92. Save for the one-off occasion when the Father had brought K to swimming which the Mother complained to have caused him skin rash or irritation, on almost all the other occasions the sickness which the child was alleged to have come down with was either upper-respiratory infection or dermatitis, as evidenced by all his sick leave certificates produced by her (PB : 633 - 646), and it appears that they all occurred after his stay at his father’s place during access.
93. The Father has denied any insufficient or lack of care on his part that had caused his son to come down with these infections, citing the fact that the child was perfectly well and healthy during all his stay with him in particularly his entire summer vacation in 2010, and questioned the genuineness of such alleged infections.
94. Since these sick leave certificates were all admitted as evidence without challenge, and in the absence of any medical evidence from his side, it begs the obvious question : How then can the Father propose to challenge these medical diagnosis? His proposition is that the Mother would just bring the child to the doctor the day after access and complained of coughing, knowing that the doctor would simply make the routine diagnosis of upper-respiratory infection without subjecting the child to any further analytical tests or examinations before just ticking the appropriate box in what appears to be a fairly standard form of sick leave certificates.
95. This is of course denied by the Mother who insisted that she could not afford to waste any money to fake her son’s illness just to get those sick leave certificates. At first glance and considered in isolation such proposition indeed sound far-fetch or simplistic, but when considered collectively with all the other evidence before the court, in particularly her bitterness towards the Father and her clear expression not just to the social welfare officer and psychologist but also to all those present in court that she would not allow him any access if she is granted custody, I am unable to totally discount such a possibility.
96. Even if these infections were real, and that the child did get sick on those occasions, there is no medical evidence to suggest that they occurred while he was staying with his father, or that they were caused by insufficient or lack of care by the Father, bearing in mind that some of those access were only for half a day and it is not impossible that he was already infected before the start of those access.
97. However, the point is that small children do get sick from time to time for health or medical reasons instead of necessarily the fault of their carer, and that even if the Mother had genuinely believed that her son got his infections at his father’s place, she should have discussed the matter properly with the Father with a view to resolve the problem, as any sensible and responsible parent would do under similar circumstances, instead of making accusations and stopping access on her own without any regard for her son’s needs, the Father’s right or the orders of the court.
98. Above all, there is no evidence to indicate that the Father is a careless person with the child other than the Mother’s speculations which were not supported by either the social welfare officers or the psychologists, and it would simply be wholly nonsensical and illogical in my mind for this father not to take good care of his son during what was no doubt limited and precious time with him, as clearly demonstrated by the happy and sickness-free summer that the child had enjoyed with him in 2010.
99. In the premises I reject the Mother’s reasons for her failure to allow the Father access to the child on those occasions referred to above, and instead I believe that she had intentionally denied him access because she blames him for the breakdown of their marriage and his subsequent failure to properly maintain her and their son, and when he refused to reconcile with him, she continued to pursue her own vendetta against him, and in the course she had victimized her son, whose plights and sufferings have been well reported and warned against by the social welfare officers and psychologists, of which she cannot hide behind the excuse that she was not aware or did not appreciate its gravity.
100. Which brings me back to that earlier argument that such behaviour may not be a trait of her general characters but rather the unfortunate consequence of her inability to cope with the stress and pressure brought about by the failure of her marriage and her resentments for her former husband as evidenced by the various reports, and that such behaviour is only temporary or transitory and will return to normal once the litigation is over.
101. However much I was prepared to give her the benefit of that possibility, the evidence before the court indicate that it may well be the case that inherently there are flaws in the Mother’s characters which will go to impact on her parental capacity. Mr Leung for the Father submits that it has in fact already been affecting the child, as evidenced by her persistent lateness in bringing him to school or at all.
Son’s Lateness for School
102. As noted above K began his primary schooling in September 2009 at Meng Tak Catholic School in Chaiwan, and will be starting his new school term in Primary 3 comes September 2011. According to his school student handbooks, and which is not disputed, class starts at 8:30 am everyday and hence students are expected to at school not later than 8:30 am, preferably earlier for obvious reason. Unfortunately for K this had not been the case during most of his past two school years despite repeated reminders and warnings from his school teachers.
103. According to Exhibit “R-2”, a schedule prepared by Mr. Leung for the Father of K’s arrival time to school for his first 3 school terms from September 2009 to January 2011 based on the records in his student handbooks (PB : 677 – 811), K had been late for school on 36 occasions in the 1st term and 30 occasions in the 2nd term of Primary 1, and 23 occasions in the 1st term of Primary 2. Considering the fact that each term lasts for about 4 - 5 months, which is about 80 - 100 school days after discounting weekends and public holidays, and granted that some of the lateness were only for several minutes, the frequency of him being late for school is indeed quite alarming, in particularly for the month of December 2010 when he had been late for 10 days out of 15 days of school before Christmas.
104. The Mother did not dispute these figures at the trial, but instead put the blame on the child waking up late or on the public transport, and failed to see why the fuss about being late for just a few minutes on some of these occasions. In any event she claimed that the situation has already improved in the 2nd term of Primary 2 according to Exhibit “P-5” which shows 14 occasions of being late between end of January and mid-April 2011, but which according to the Father is still far from satisfactory given the fact that there was a long Chinese New Year break in between. I agree.
105. As pointed out by Mr Leung for the Father, it should not be so difficult for a responsible parent, in fact for any parent in my view, to get up early everyday to prepare his or her child for school properly and punctually, let alone having to be warned by the school on so many occasions and over such a long period when the problem has still not been properly addressed or resolved. Her explanation that the son stayed up late at night playing video games, a habit which she said he had picked up while staying with his father during his summer access in 2010 is to me a lame and opportunistic excuse as the problem arose a year before, and even if it were true, it just goes to show her inability to teach and discipline her son properly despite the span of time, or otherwise demonstrates her total disregard for rules and regulations, be that of her son’s school or the access order of the court, or even her own medical appointments which according to the various reports she would be late or miss altogether at will, of which I am unable to find any conclusion other than that it was a serious flaw in her character that will no doubt impact on her parental ability when it comes to providing a role model for her son and to give him proper guidance and discipline.
The Mother’s Characters
106. The Mother’s behaviour in court is another indication of possible character flaw during which she would appear aggressive, argumentative and combative, very often giving her answers to cross-examination in some of the most appalling, sarcastic, and rude manners that this court has ever witnessed, and would even at times launch personal attacks on the Father’s lawyer Mr. Leung with such humiliating remarks of “What sort of stupid question is that”, “You are really one dumb lawyer” or “Are you sure you are qualified as a lawyer” with absolutely no provocation or justification whatsoever.
107. While it is not uncommon for parties in particularly in this jurisdiction to become emotionally overwhelmed in court with open displays of hostility and bitterness towards each other and sometimes even their lawyers, but there is simply no justification in my view for the Mother’s said behaviour which were amply evidenced throughout the entire proceedings rather than on isolated instances, which makes one wonder whether it can still be argued on her behalf that they were due to stress induced by litigation which would only be temporary as referred to above, or that they were rather more to do with her characters, which seems to be the case when one takes into account of the other evidence before the court.
108. It will be recalled from one of Mr. Hui’s social investigation reports that there were conflicts between the Mother and her co-tenants, of which she did not in the main dispute at the trial, and I would not be surprised that her aggressive and confrontational personality may have contributed to those conflicts.
109. Mr. Wong has submitted on her behalf that the Mother has been attending courses to improve her skills on communicating and cooperating with the Father, and that at the trial she appeared to have relented to consider allowing the Father some access in future on certain conditions. However, judging from her behaviour typified by the latest episode on 1st August 2011, these words surely sound hollow to me, as all along been suspected by Mr. Hui and Ms Chan in their reports.
The Father’s Characters
110. The Father’s behaviour in court appeared almost the antithesis of his former wife’s when he would give his answers in a calm, patient and rationale manner, and while he was clearly frustrated by the access problems, and notwithstanding his conviction that the Mother was to blame, he never took the initiative to criticise her in his evidence. In fact quite to the contrary, he appeared to take great pain trying to avoid discussing his former wife’s behaviour in court at all, preferring to rather focus on how he would take proper care of his son.
111. The same observation of the Father can also be found in the various reports before the court in particularly those of clinical psychologist Ms Chan whose clinical assessments of him are as follows (PB : 114) :
“14. … He presented as polite, cooperative, and rational. His speech was articulate and detailed. He became slightly tearful on some occasions, for example when talking about the past access difficulties. But he managed to regain his composure fairly quickly, and his mood appeared calm and stable most of the time. He completed all the given psychological inventories with effort. He was also observed to be on harmonious terms with the paternal aunt and grandfather.”
112. It would be relevant to note that despite the Mother’s persistent failure to bring the child to Mr. Hui’s office for his access sometimes for as long as 6 months, the Father never once missed attending at the office at the scheduled date and time to wait for his son for up to an hour before leaving empty-handed and disappointed. Some may see such behaviour as naïve, foolish or stubborn. I am inclined to consider it as fine examples of his unquestioned determination to see his son.
Conclusion
113. At the beginning of this judgment I pointed out that with a small child like K it would seem normal and appropriate for him to remain in the care of his mother who has been his primary carer with flexible working hours. I said that not just from the point of view of common sense but also because judicial statements can be found, going back in years, to that effect, as in the English case of H v H [1969] 1 All ER 262 when it was said :
“On the whole the best place for a boy of 3 ¾ is with his mother; is there anything to displace that human view? I entirely agree with that approach. I think there is no doubt – and this is not a proposition of law – that from the point of view of common sense and ordinary humanity, all things being equal, the best place for any small child is with its mother.”
114. The same judicial statement was considered and applied to 2 children of 7 and 9 years respectively by our Court of Appeal in the case of Wong Yip Yuk Ping v Wong Sze Sang Michael (CACV no. 116 of 1985) when Cons JA said :
“(counsel) suggests that it applies only to children considerably younger than the ones we are concerned with. With respect, I do not think that is so, although naturally the age of children is relevant. It is a factor that becomes less important as the children grow older, with a caveat perhaps, in the case of young girls approaching puberty. Its importance may perhaps also be less where the circumstances are such that the mother … has not established such a close bond with the children in infancy as she might have done. Of course it is not a rule of law. It is not even indeed a presumption. But is has become so well established that I would expect any judge, when considering custody, to take that as his starting point before turning to consider whether in the particular circumstances he should go to further.”
115. The correct approach to deal with this particular aspect of the child has since been summarised by the English House of Lords, as it was then called, in Brixey v Lynas [1996] 2 FLR 499, HL, and which has subsequently been recognised and acknowledged by our Court of Appeal in R v Y (CACV No. 193 of 2010), when Lord Jauncey of Tullichettle said at p.504 :
“ …to summarise, the advantage to a very small child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to the competing advantages which more effectively promote the welfare of the child. However, where a very young child has been with its mother since birth and there is no criticism of her ability are likely to prevail…”
116. There is no question in this case that K at the age of 8 is a small child who needs constant parental care and special attention, and that he has undoubtedly a close and intimate relationship with his mother who has all along been his primary carer since birth, but this is in my judgement where the Mother’s advantages end, as all other evidence have demonstrated that not only is her present care and guidance for K in particularly as to his emotional needs and discipline woefully inadequate, but her persistent refusal or failure to recognise his needs for his father and by exposing him to their continued disputes on access will no doubt put him at risk of living under constant stress and pressure of loyalty conflicts, which clearly cannot said to be in his best interests, as correctly pointed out by the various reports before the court.
117. On the other hand, not only am I convinced that the Father is equally capable of meeting his son’s physical needs with similar family support as the Mother, but that he is much more capable of meeting his emotional needs and development by providing him with a structured, disciplined and stable life free of stress and adult conflicts, necessary for the healthy growth of all children but particularly important for K in view of his special needs, as emphasized by both social welfare officer and psychologist involved, while his educational needs will also be better met by the Father, of which even the Mother has conceded.
118. I am also convinced that, unlike the Mother, the Father will not only facilitate access but will actually encourage it if K is to go stay with him in future, and will do his best to protect his son from any adult conflicts, as amply demonstrated by the many reports before the court. While this will mean a change to the child’s status quo, evidence of his happy stay with his father during the summer of 2010 indicates that any concern of possible adverse impact arising therefrom will be unfounded.
119. In conclusion, and for all the reasons discussed above, I am satisfied that it would be in the best interests of the child that his custody care and control be granted to the Father, and I so order. The Mother should of course be given access, but given her recent behaviour and in particularly of any possible impact of this decision on her, it will be appropriate that the matter be properly addressed by the parties before me as to its terms and arrangements at the earliest opportunity with 30 minutes to be reserved for that hearing.
120. On the question of costs, as both parties are legally aided, I propose not to make any order save that the parties’ own costs to be taxed on Legal Aid Regulations. Lastly, I wish to express my gratitude to both Mr. Wong and Mr. Leung, as well as the social welfare officers and psychologists involved for their most valuable assistance to what has indeed been a most difficult case.
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(Bruno Chan )
District Judge |
Mr. Wong of M/S Simon Wong & Co for the Petitioner.
Mr. Leung of M/S Cheng, Yeung & Co for the Respondent.
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