ZH v. LKM

FCMC 784/2019

[2021] HKFC 104

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 784 OF 2019

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J U D G M E N T

(Custody, care and control)

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1.  The Petitioner Mother (“M”)  and the Respondent Father (“F”)  are both in dispute as to the custody, care and control of the two children of the family.

Brief background

2.  Both parties met each other while on a trip to Hunan, China in 2006.  At the time, M was a resident of Guangzhou, mainland China and she was studying and working there whereas F was a Hong Kong resident. They soon started courtship and were married in Hong Kong in 2008.

3.  M was subsequently granted a one-way permit and she came and settled in Hong Kong in August 2012.  The eldest daughter of the family (“the daughter”)  was born in November 2013 and the youngest son (“the son”)  was born in September 2016.

4.  In the meantime, M’s parents (“the maternal grandparents”)  also came to Hong Kong to reunite with M and initially they lived with the parties and the daughter in Sheung Shui.  Subsequently, when F was allocated a public housing unit in Shatin (“the former matrimonial home”), the maternal grandparents claimed that they also lived with the family so as to look after their grandchildren.

5.  M moved out with the son together with the maternal grandparents when F was on a trip with the daughter to Yunnan in August 2018.  M instituted the divorce proceedings against F on 21 January 2019 on the ground of unreasonable behaviour.

6.  This is a highly conflicted case as several police reports in relation to the children’s matters have been made by the parties.

7.  The son was sent to a foster home on 14 September 2018 and has been staying there ever since because no consensus has been reached on him.  The daughter has been staying with M and by virtue of the Court Order made by Deputy Judge D To dated 9 July 2019, interim custody, care and control of the daughter was granted to M with defined access to F, namely access once every week to be arranged by a social worker, and access be conducted at the Parent-child Contact Centre.

Documents submitted for the purpose of this hearing

1.  Social Investigation Report (“SIR”)  dated 4 October 2019 prepared by Ms Chow;

2.  Updated Social Investigation Report dated 14 July 2020 also prepared by Ms Chow (“Updated SIR);

3.  Six Affirmations of M filed on 21 January 2019 (“M’s 1^st Affirmation”), 21 January 2019 (“M’s 2^nd Affirmation”), 12 March 2020 (“M’s 3^rd Affirmation”), 9 July 2020 (“M’s 4^th Affirmation”), 7 January 2021 (“M’s 5^th Affirmation”)  and 4 February 2021 (“M’s 6^th Affirmation”)  respectively;

4.  Six Affirmations of F filed on 28 June 2019 (“F’s 1^st Affirmation”), 17 October 2019 (“F’s 2^nd Affirmation”), 5 December 2019 (“F’s 3^rd Affirmation”), 11 May 2020 (“F’s 4^th Affirmation”), 7 January 2021 (“F’s 5^th Affirmation”)  and 4 February 2021 (“F’s 6^th Affirmation”)  respectively;

5.  Affirmation of the Maternal Grandmother (“MGM”)  filed on 7 January 2021;

6.  Affirmation of the Maternal Grandfather (“MGF”)  filed on 7 January 2021.

8.  Except M’s 6^th Affirmation, F’s 6^th Affirmation, the SIR and the updated SIR and the two Affirmations by the maternal grandparents, which are in Chinese, the other documents were prepared in English.  Although the proceedings were also conducted in Cantonese, both parties’ legal representatives have no objection that this Judgment be delivered in English.

Recommendations made by Ms Chow in paragraph 36 of the Updated SIR

(1)  Joint custody with care and control of both children to M;

(2)  F do have defined access as follows:

(a)  F will have day access once a week, alternating between the Specialised Co-parenting Support Centre (2-3 hours)  with the assistance of the Parenting Counsellor and outside the Specialised Co-parenting Support Centre (3 hours), and the pick-up and return shall take place at the Specialised Co-parenting Support Centre;

(b)  F do have day access to the son every weekend (Saturday or Sunday);

(c)  F do have access on special occasions such as Easter, Mid-Autumn Festival, Christmas, New Year, Chinese New Year and summer holidays, and extra day access on F’s and children’s birthdays and Father’s Day;

(d)  in the event of any change of access, the parties must notify each other at least 48 hours beforehand by way of instant messaging app such as Whatsapp;

(e)  both parties must (or may when circumstances)  arise make arrangements with the Parenting Counsellor to co-ordinate and implement the above access arrangements;

(3)  M and F have to accept the Co-parenting Education Service of the Specialised Co-parenting Support Centre and learn through the assistance and guidance of the Parenting Counsellor (親職輔導員)  on how to handle conflicts, to jointly discuss the matters in relation to children’s development, care and access and to implement the same.

Children’s wishes

9.  In both the SIR and the Updated SIR, the daughter indicated that she wishes to stay with M and the maternal grandparents as they both love and care for her, and she also wishes the son to return to live with them soon[1].

10.  As to the son, due to the tender age and his limited ability to comprehend and express himself, his wish cannot be ascertained but it is noted that he likes to play with his sister[2].

Opening proposal by M

1.  Sole custody, care and control of the children be granted to M with defined access as proposed by the Social Welfare Officer in paragraph 36 of the Updated SIR be granted to F; alternatively

2.  By the Order of Deputy Judge D To dated 9 July 2019 that interim custody, care and control of the daughter to M with interim defined access to F be made permanent;

3.  Custody, care and control of the son be granted to M for a trial period of 6 months with interim defined access to F and an updated Social Investigation Report be called for and filed in one month before the end of the 6 months to enable the Honourable Judge to make a final decision on custody, care and control of the son by paper disposal.

Opening proposal by F

1.  Joint custody;

2.  Care and control of the daughter to M with reasonable access to F;

3.  Care and control of the son to F with reasonable access to M.

11.  Despite the written proposals mentioned above, Mr Lau representing F said in his Opening Address that his client would like to have care and control of both children and it was nearly at the end of the 2^nd day of the 3-day trial that I was informed that the legal aid certificate granted to F was limited to the claim for custody, care and control of the son only but not the daughter.  F was therefore representing himself in relation to the claim for the daughter.  As the trial was close to the end, I decided to cover both children in this Judgment.

The law in Hong Kong

12.  The main provisions regarding children can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of Cap 192 states that:

(1)  The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18- (Amended 69 of 1997 s. 28)

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

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

GENERAL PRINCIPLES

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

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

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

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

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

14.  In SV v MS [2020] HKFC 197, HH Judge Melloy also set out a list of factors,

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

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

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

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

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

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

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

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

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

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

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

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

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

16.  It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire for the court and that it can assist in the decision-making process. In this instance however, it seemed to me that it may be important to go through this list item by item. Consequently, a more detailed consideration of the checklist will be set out below.” 

Joint Custody: the proper approach

15.  In PD v KWW (Child: Joint Custody)  [2010] HKFLR 184, Hartmann JA said,

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

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

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

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognizing that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

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

F’s grounds of objection to M as the children’s carer and M’s reply

(I)  Corporal punishment

16.  F accuses M and her parents of being abusive to the children and they have all along been using corporal punishment and thereby not suitable to be the children’s carer.  In support of his allegation, he has produced 4 videos taken during the time when the parties had not separated.

17.  In F’s 2^nd Affirmation, he said,

“7. In video (1)  at 2:50, M was seen beating the son with a cane; in video (2)  at 00:50. The daughter said that the son was crying because he had been beaten by M; in video (3), the daughter admitted that M and the grandparents often beat her and the son, in video (4)  at 02:40, the grandparents impliedly admitted that they had abused the son by letting him mess with his own faeces and even smearing some on his mouth (“the faeces incident”)[3].

18.  M in response said in M’s 3^rd Affirmation[4],

“5. Video (1)  was captured on or around 21 June 2018 by F inside his room with door partly opened.  Full scene and duration of the alleged hitting of the son was not clearly captured.  That day was my day-off, but I still needed to get up early to prepare the daughter for school.  This shows nothing but, mundane chores happening regularly in any family with children.  It is fair to say that sometimes, suitable and well-balanced child discipline is understandable and even expected.  Under the accumulated stress of one week’s full-time work and household chores, frankly, I did spank the son for spilling water on the floor; however, the corporal punishment is so trivial and should not be unjustly exaggerated and magnified.  There is clearly no sustainable argument of physical abuse.  In fact, it had always been F’s house rules, his requirement that children should be chastised, spanked for discipline.  He used to say to me that “it may not be your rules in your hometown, but it is my house and you must follow my rules!”

6. Video (2)  was captured on or about the same period of time.  Such only showed the son was crying, but not in an uncontrollable manner.  I only lightly spanked my son twice.  Again this happened on a hectic morning when I needed to prepare the daughter for school and cooked lunch for the whole family before leaving for work myself.  The son playfully messes with his sister’s cup which was filled with water. The daughter (4 years old at the material time)  was too young to be able to articulate what happened and could only respond to father’s question by simply saying that the son was punished without giving the details.  The video did not show exactly how the son was punished.  A short while later, my son was pacified, calmed down and got dressed by his maternal grandfather.  The son appeared in the video to be at ease.

7. Video (3)  was most likely taken during 3^rd to 5^th September 2018.  My daughter, upon repeated prompting by F, was telling him that I and her grandmother had hit her and the son….

8. Video (4)  was taken with the intent on the part of F to support his allegation that the grandmother did allow the son to play with and/or eat his own faeces.  The video was recorded days after the alleged incident.  In the video, F was seen deliberately stirring up an argument by blaming my mother of being too slow to clean up the faeces.  The truth and what had happened was that, days before the recording was made, my son had defecated (when F was there in the flat).  My mother, having just returned home after collecting my daughter from school, realised it and immediately she asked my son not to scratch his bottom as it was dirty, as she went on to change my son’s diaper and clean up……”

19.  In reply to the house rules which M alleged that it was F’s requirement that children should be chastised, spanked for discipline, F said in F’s 4^th Affirmation[5],

“8. M’s claim that I set the house rules to chastise the children for discipline is unsupported by evidence and totally fabricated. This shows that M was unable to defend her abusive acts on unreasonable ground and was desperate to use unfounded claim against me.

9.  In fact, I have always tried to dissuade M from using excessive corporal punishment against the children. At 02:55 of Video (1), I tried to stop M from caning the son by saying ‘forget it’ (算啦)  twice.  However, M refused to stop and replied by saying that ‘I am teaching the son’ (我教緊個仔呀).  This evidence proves that contrary to what M claimed, M was the one to conduct punishment, and I was the one to stop her.”

20.  In reply to M’s defence in the 4 videos, F said in F’s 4^th Affirmation,

“…..Video (1)  shows that M was chastising the son with a cane at 02:50, she did not stop caning even though the son was crying in pain.  As opposed to what M claimed to be “mundane chores” which take place ordinarily in a family with children, the action shown in Video (1)  is severe enough to constitute a serious case of child abuse against the son.

6. M tried to evade the main question, which is her abusive acts towards the son, by claiming that she was under “accumulated stress of one week’s full-time work and household chores”.  This should not be M’s excuse to inflict excessive punishment on the son.  M admitted that she spanked the son for spilling water on the floor, which is an ordinary unintentional mistake for a child of such young age.  M’s reaction of using excessive discipline was unnecessary and harmful to the son’s wellbeing.

7.  In fact, M had always been using excessive discipline against the children, including kicking, caning and beating them with objects.  M disciplined the children for trivial matter such as when the daughter did not finish her homework quick enough.”

21.  F also put forward the accusation that when the son was under M’s care, he had injuries to his head twice; once in April 2019 and once in May 2020 causing blood to spill out.

22.  He denied MGM’s claim that the son’s injury was caused by he himself jumping from the lower bunk bed and thereby hitting the underside of the upper bunk as he drew our attention to the fact that the son has language delay and gross motor delay (大腿肌肉發育比平常人弱), mild receptive and severe expressive language delay with weak play skills.  F therefore concluded that the son could not have jumped.

(II)  M’s incapability to look after the son

23.  F denied that the maternal grandparents helped them to look after the children.  He said that they always went to China and only lived with the children one or two months per year.

24.  F also said that because of the son’s conditions, he was at least for the past 3 months solely responsible for attending the son’s medical treatment sessions.  F said that there were at least 5-6 sessions of physiotherapy treatment for gross motor delay.  After treatment, he also had to train the son at home in physical exercises such as frog jump (青蛙跳), bunny jump (兔仔跳)  and one-legged stand (單腳企), etc.  He said in his oral testimony that there is no way that M and/or the maternal grandparents are physically capable of doing so[6].

25.  F said that he came to know on 17 December 2020 that with the consent of the doctor in-charge of the son’s case at the Prince of Wales Hospital, the son could from then on use the service provided by Child Enlightenment Centre of the Neighbourhood Advice-Action Council (鄰舍輔導會)  instead[7].

26.  F also challenged M’s suitability for taking care of the son because Child Enlightenment Centre of the Neighbourhood Advice-Action Council is in Shatin and he understands that M lives in Lai King.  F said that for the son’s best interests and in order to cure his child’s development delay, it is crucial to do the rehabilitation exercises (康復運動)  before the age of 6.  Since he had already learnt a lot from the son’s therapy sessions at the Prince of Wales Hospital, he would be the better carer.

27.  M on the other hand provided an up-to-date medical assessment of the son from Child Enlightenment Centre of the Neighbourhood Advice-Action Council dated 29 January 2021 (“up-to-date medical assessment”)[8] to show his improvement and current condition:-

(1)  在言語治療及職業治療方面, 幼兒能力與實際年齡能力相約, 所以在此兩項範疇沒有個別治療訓練需要;

(2)  因發音方面間中有輕微遲緩, 會安排參與言語治療師定期舉辦的發音小組;

(3)  在大肌方面仍須持續訓練, 故提供物理治療的個別課程;

(4)  在幼兒認知能力方面仍需作進一步觀察, 例如在辨別前後數及次序概念上的訓練。.

Discussion

Corporal punishment

28.  All 4 videos were played at the hearing.  For video (1), I can see clearly a man’s foot which there should be no dispute that it is F’s, and he is videotaping what is happening outside his room at the time.  There is no door between his room and the sitting room but only a long piece of curtain-like material.  I agree that from the video, the son is crying but I do not see M caning the son. 

29.  Ms Chow when cross-examined by Mr Lau said:

“問：係，咁但係妳聽唔聽到嗰個細路仔係不停喺度抽搐喺度喊咁樣嘅聲音呢？

答：我聽到小朋友嘅喊聲。

問：喊就係抽搐咁樣嘅，係咪呀，同唔同意呀？

答：我唔係醫生，我唔能夠判斷佢係咪有抽搐嘅情況，我凈係聽到佢不停嘅喊聲。

問：係，喀，咁就片段臨尾嗰度就見到就係嗰位女士就一路鬧緊個小朋友喇，就話玩水水咁樣，咁曳曳咁樣，係咪？

答：係，係。

問：咁就跟住就喺背面度見到就應該係有籐條喺度拍打個細路嘅，呢度見唔見到呢？

答：我見到有一支好幼嘅物體，但係我就喺個影像度我未能夠好清晰睇到有一個好--個清晰嘅拍打嘅動作嘅[9]。”

30.  I share her view.  Even if M did cane the son as alleged, it could not have lasted for a long time because the son was only crying but not screaming.  I agree that F did say 算啦quite some time after the video–recording had started but for my part, I believe he said so solely for the purpose of submitting the video as evidence on the criminal side and/or for matrimonial proceedings.  It was F who filmed the video without M’s knowing.  He could control the timing of the recording, when it should stop and what words he would say but not from M’s side.

31.  Ms Chow, when cross-examined by Mr Lau, also said,

“問：喀，咁個--嗰個片段就帶出呢，就係嗰個女士就係體罰緊嗰個小朋友嘅，咁個男士就反而係勸就話唔好再體罰喇，咁樣但係個女士就唔認同，就繼續係體罰緊個小朋友嘅，呢個妳認唔認同呀？

答：律師，我想講番呢，呢個係一個截錄嘅片段，我唔能睇到嗰件事嘅始末，咁我係能夠憑住呢一個嘅片段嘅截錄我睇到嘅，咁我就回答你，但係我唔知道，我唔能夠推測究竟喺當中嗰個前後係點樣。[10]”

32.  I agree in its entirety.

33.  As to the content in video (2), even F admitted in paragraph 10 of F’s 4^th Affirmation that the daughter did not articulate what happened.  Although he also objected that the son was at ease, I could not see that the son was frightened on the video[11] as alleged by F. In any event, is it in the best interests of the children to be asked repeatedly so as to accuse the close relatives who looked after them solely for the purpose of recording?  My answer is definitely no.

34.  As to the content in video (3), I disagree with F when he said that the daughter was speaking the truth about the abusive behaviour of M and the maternal grandparents[12]. I can only see that F has repeatedly prompted the daughter to give him the answer.  I find no substance in the video.

35.  As to the content in video (4), both parties agreed that the video was taken several days after the faeces incident.  It was clearly seen that F was very angry at MGM and he was asking the daughter to agree with his allegation and the daughter did.  For my part, I disagree with what F did in the faeces incident and even if I believe his version, what a responsible father should have done when he found out his son was in such a situation would be to take immediate steps to clean up the son before he did anything else.  Instead, F said in F’s 4^th Affirmation[13],

“12….M’s mother was deliberately slow in cleaning up the son’s own faeces and also smeared his own faeces into his mouth.”

36.  F confirmed in his oral testimony that he scolded MGM for being slow in her action.

37.  MGM on the other hand said that she had to pick up the daughter from school so she told F, who was resting at home, to look after the son.  When she returned home with the daughter, she heard the daughter saying that the son was playing with faeces (細佬你玩屎呀).  She then saw the son, who was alone in the sitting room with faeces in his hand while F was in his room.  As the son suffered from severe eczema and it even manifested on his buttocks, he always scratched his buttocks to ease the itch.  MGM suspected that the son might have had the need to defecate, but did not do so for whatever reasons resulting in having faeces left on his buttocks and when he scratched them to ease his discomfort, he was left with faeces on his hand. MGM said in her oral testimony that despite her feeling so hot after returning from outside at around noon, she immediately put down the daughter’s school-bag and prepared the towel, clean clothes, diapers, eczema cream and cotton buds so as to clean the son[14].

38.  MGM said that F should be the one who looked after the son while she was out picking up the daughter.  She said F deliberately accused her of being slow in her response and falsely accused her of putting faeces in the son’s mouth, instead of admitting his own negligence. She also said nobody would have done so to the children of such tender age and in particular she was the grandmother who had been looking after them since their births.  In Court, MGM said,

“唔覺佢出唔出番嚟，佢就猛喺度鬧我囉，係囉，手腳慢呀，揗來揗去都唔同個孫仔去沖屎呀，妳話作為一個老竇，話嗰個婆婆揗來揗去都唔沖屎，咁個當時係咪婆婆嘅責任？湊仔係咪婆婆湊住？係咪婆婆湊到佢玩屎？係婆婆係唔知情㗎，返嚟一頭--一身汗都要馬上同佢去沖屎呀。

...咁明明我都係揗來揗去都係揗，攞咩嘢呀？攞尿片喇，當時我個孫仔個屁股就痕嘅，又要去攞藥膏喇，又首先我個地下係我個女瞓嘅地板嚟，鋪一條毛巾，攞條毛巾鋪住，攞尿片，執齊佢嗰啲衫褲，咁又去門口嗰度又攞嗰啲藥膏，放埋喺呢度，咁就馬上同佢一齊去沖洗，沖洗完之後就馬上要同佢搽藥膏㗎嘛，就係囉，我去執嘢嗰陣話我揗來揗去囉。[15]”

39.  I believe her evidence.  F never denied that it was MGM who cleaned up the son, both in his affirmation and in his oral testimony.  All he said in his oral testimony was that all the towels and cleaning stuff were already in the sitting room, but it took so long for MGM to do her job so that he was woken up.

“個小朋友返嚟，跟住--我其實係瞓緊覺㗎嘛，啱唔啱？咁我又冇應承佢咁樣幫佢湊嘅，亦都--如果如我18段所講，根本係冇乜可能幫佢湊，佢返到嚟嘅時候，佢哋行--阿婆喺度行前行後，啲嘢已經係擠晒喺度，你哋其實睇番嗰個video入面，啲嘢已經擠定喺度㗎喇，啲衫褲，甚至乎嗰啲嘢，個地下已經係有一塊地氈等等嘅嘢，咁只需要沖完涼，跟住可以慢慢搞，咁呢啲都唔係重點，重點係我瞓緊覺，妳話我詐諦瞓緊覺都得，但係我真係瞓緊覺，咁你哋喺度挹挹抰抰，跟住整到佢搞到咁嘅事幹，我都係冇--唔知，而畀佢哋嘈醒，而最終嚟講，我睇到嘅就係MGM扤啲屎落個仔個嘴嗰度，中間嘅時候，MGM喺個--其他video片段入面，係之後影番出嚟，佢大條道理咁樣講番出嚟，「係呀，你個仔係有食屎。」” (my emphasis in bold).

40.  When cross-examined by Ms Chan as to how F was so sure that MGM gave faeces to the son,

“問： ……我就想問一問你呢，你話你當時瞓緊覺吖嘛，咁你係點睇到MGM帶住細路或者the daughter行前行後呀，行前行後呀，話佢食屎呀，細佬食屎呀咁樣呢？

答：我冇話我睇到，首先嚟講，我係喺矇矓之中你哋嘈醒我，咁阿婆喺度笑，「哈哈哈，細佬食屎呀，細佬食屎呀。」同佢講過唱歌仔，兩樣嘢嚟嘅，呢個第一；第二樣嘢，我亦都希望澄清番，琴日係咪我哋係未討論呢一part㗎，…..喀，咁跟住呢個細路仔竟然係我醒咗之後，MGM喺我門口度咁樣飄咗幾下之後，咁我已經--我當時胃痛㗎喇，又眼瞓，跟住望出去，我就指住阿女就話「妳唔好笑呀，細佬食屎妳仲笑。」跟住我就話MGM，喺度鬧MGM嗰陣時佢就咁樣，跟住就拉咗佢去沖涼，抹啲屎落佢個嘴，[16]” ( my emphasis in bold)

41.  It is my view that F was clearly admitting that he did not know that the son had faeces in his hand whilst the latter was under his care. 

42.  In paragraph 18 of F’s 6^th Affirmation[17], he said that he had to work at Tseung Kwan O for 12 hours, a further 2 hours as a private tutor in the afternoon and commute 4 hours daily, leaving only 5 hours as rest time.  He therefore immediately slept upon returning home and it was also unreasonable to request him to look after the son.  In paragraph 19, F once again accused MGM of her deliberate delay in cleaning up the son.  In Court, F said that he had never promised the MGM to look after the son (冇應承幫佢睇小朋友).

43.  For my part, I hate to say that F, being the natural father, was irresponsible.  No matter how tired he was, the son’s best interest should come first.

44.  Ms Chow also said in her oral testimony when cross-examined by Mr Lau,

“問：係，咁嗰個女士（MGM）亦都話「我有--我有笑佢呀。」咁樣，咁作為一個照顧者，係咪唔應該喺呢一個時候笑個小朋友呢，係咪會對個小朋友有負面嘅影響呢？

答：我諗如果我哋去一般嘅理解，家長或者嗰個照顧者其實都係需要去處理佢嗰個衛生嘅問題嘅。[18]”

45.  As for the allegation that MGM had put faeces into the son’s mouth, I do not believe that.  I find in favour of MGM’s evidence when she said that when situation became tense between F and herself, she would sing a song to ease the atmosphere.  She said in her oral testimony that she did sing “醜醜醜, 醜甩耳仔送燒酒” after F scolded her and the daughter sang with her and they both laughed.  I believe this is a more credible version.

46.  In any event, why did F stir up the matter again in the presence of the children a few days later and secretly videotaped the conversation?  From the video, I can see that the atmosphere is tense.  For the best interests of the children, no matter whether the allegation is true or false, the matter should not have been brought up again in the presence of the children in such an acrimonious manner.

47.  F said in paragraphs 12 and 13 of F’s 5^th Affirmation that MGM had admitted in videos (2)  and (3)  that she did laugh at the son for eating faeces and that she would change her behaviour (我係有少哦我係有佢叫佢食屎呢啲我會改)[19]. 

48.  For my part, I accept MGM’s oral evidence when she said that she always had to agree with F in order to avoid unnecessary arguments.  I find that MGM did not let the son eat faeces. I believe MGM would not have done so and she really loves her grandchildren.  After all, M is her only daughter and thereby the grandchildren are her only grandchildren.

49.  I understand that F had reported the matter to the Police and all the videos were submitted as evidence.

50.  In M’s 3^rd Affirmation, she said,

“24. On 3^rd September 2018, F made the first police report when we had a dispute about access arrangement whilst we were arguing at a place near a shopping arcade in Shatin. F falsely accused my father assaulted him and that I have abused my son. Police arrived at the scene. After physical examination of my son, no injury was found. No follow up action was taken, and the allegation was wholly unfounded.

25.  On 6 September 2018, F again accuse me of child abuse using video (1), among possibly others, as evidence.  I admitted to the police that, in the presence of F, I had used a thin rattan to lightly hit my son’s leg a few times to punish his mischievous act of having wetted all the beddings with water.”

51.  From M’s 3^rd Affirmation, which is an exhibit, the Shatin Police Station wrote to M’s law firm on 29 August 2019 that they would not proceed with the case against M because there was insufficient evidence to substantiate a charge against her.

52.  M said in her 3^rd Affirmation that,

“9. I believe all four videos have already been considered by the police and/or social workers at the Multi-Disciplinary Committee and in the Case Conference on Protection of Child with Suspected Abuse (“MDCC”).  It is a total waste of court’s time and costs to have needed to reopen these groundless complaints…. More ridiculous is that these scenes, and episodes were taken when either F or my parents was/were present….”

53.  I accept her evidence.  I find that M has used a cane for disciplinary purposes but there was no excessive punishment as alleged by F.

54.  In his Closing Submissions Mr Lau submitted that,

“…..Ms Chow….admitted to the Court after viewing the four videos that the videos have not been considered in the preparation of the SIR and the updated SIR. It is the Respondent’s submission that have Ms Chow considered the allegation of child abuse by the Petitioner as put forward by the videos she viewed in Court on 3 March 2021, Ms Chow would have reached entirely different conclusions and suggestions in the reports. Ms Chow also admitted that repeated abusive conduct against children would have long lasting negative impact on the children.”

55.  I disagree.  Mr Lau never put the question as to whether Ms Chow would have come to a different conclusion after viewing the videos in Court.  For my part, Ms Chow did not change her mind when she gave evidence except her recommendation as to joint custody, which I would discuss in paragraph 129 of this judgment.

56.  As for the repeated abusive conduct against the children, what Ms Chow actually said in her oral evidence was,

“問： 我而家唔係講緊特別呢個個案喇，只不過係普遍性嚟講，咁家長如果一而再再而三體罰小朋友嘅，咁係咪會對小朋友會有負面嘅影響呢？

答：  如果個家長或者個照顧者佢用一啲好嚴重嘅一啲體罰以致到傷害到個小朋友，咁其實我同意係會對小朋友嘅成長係會有一個嘅唔理想嘅亦都唔好嘅影響。”

57.  It is my view that it is a comment to cases generally.

58.  Mr Lau also submitted in his Closing Submissions that it was clearly seen in one of the videos that MGF had participated in beating the son with a cane when the son attempted to stand up on the sofa.  He submitted,

“18. When asked about why he did so at the time, MGF explained that he only did so because the Respondent said it was the Respondent’s ‘house rules’ to discipline the children with corporal punishment with an apparent attempt to put all blame to the Respondent.”

59.  With the greatest respect, what MGF said was

“問： 但係我哋見到嗰個視頻嗰度，你都有拍打，雖然唔係話好大力，都有拍打到詠賢㗎喎，係咪？

答： 嗰個外孫如果真係打嘅時候，大大力，會喊㗎嘛，佢有冇喊呢？冇喊嘛。

問： 冇喊到嘅，係，冇喊到嘅。

答： 係吖，冇喊㗎嘛。

答： 我係嚇一嚇佢，係嚇佢嘅，我唔咁樣做，頭先講喇，就係冇辦法，就搞到家嘈屋閉嘅，真係。

問： 所以你就被逼咁樣做喇，係咪？

答：  順從佢喇，反正就，因為佢講嘅係一家之主吖嘛。^[20]”

60.  As for the son’s injuries on his head, MGM said in her oral testimony that despite the son’s motor development being slow he could still jump, though not as hard as other children of his age.  I accept that because after all, the son was only diagnosed as having motor delay but not motor inability.

61.  Mr Lau submitted that,

“10. When asked about the son’s injury in April 2019, when he was under the care of the Petitioner, the Petitioner also did not provide a consistent answer when answering Mr Lau’s questions on the extent of the son’s injury, the Petitioner first answered that the son’s injury was oozing with blood (“滲血”), then later corrected her answer to (“有條紅色嘅痕”). Both instances described in paragraphs 9 and 10 (the sleeping arrangement of the children and M in the former matrimonial home)  are instances of how the Petitioner wilfully lied under oath. The Court should not give weight to the Petitioner’s evidence.”

62.  With the greatest respect, what M said in Court was,

答：  ...係喇，咁跟住之就撞親，啱啱嗰度有條橫樑。

問：  係，咁就佢撞親，跟住個頭頂，係咪？

答：  呢度呢啲位。

問：  呢個係頭頂嘅位喇，喀，咁跟住有冇流血呀？

答：  當時好--唔係流血，即係滲咗少少。

問：  滲咗啲血出嚟。

答：  少少，跟住之後我就即刻帶佢睇急症。

63.  Subsequently, M said,

“問： 係，咁就撞到個木造嘅橫樑，跟住就砍穿咗個頭，就滲咗啲血水出嚟...

答： 砍親個頭，唔係穿，即係少少。

問： Okay，喀，砍親個頭，跟住就滲咗啲血水出嚟，咁跟住就送去急症室喇。

答： 好似冇血水，即係滲咗少少一條紅--紅色嘅痕囉，一條紅色嘅痕喺度。

問： Okay，喀，咁妳而家修正喇，就唔係滲咗血水出嚟，係有條紅色嘅痕，喀，咁...

答： 因為我理解唔到你紅--你血水係--係--係點樣嘅血水吖嘛，我理解唔到。

問： 喀，因為呢個頭先係妳嘅講法嚟個喎，咁就係話妳話滲咗啲血水出嚟個喎，係咪？

答： 我話理解唔到你講滲嘅血水，我冇講血水呀，所以我問，我話佢砍到紅色有一條痕喺度呀。

問： 我哋有紀錄嘅，頭先妳係講咗話滲咗啲血水出嚟嘅，唔緊要嘅，妳而家修正番妳嘅講法，係咪？妳話係有--而家係有條紅色嘅痕喺度，係咪？

答： 反正我--當時我記得係佢砍親個頭，喺呢度睇有一條痕係紅色嘅。

64.  I find no inconsistency here.

65.  With regard to F’s allegation that the grandparents always went to China and did not stay at their home before their separation, I have looked at the grandparents’ movement records produced by Ms Chan representing M and only MGF has a recent longer departure from 10 December 2020 to 15 February 2021, whereas MGM did not go with him.  MGF explained his long absence this time was to deal with some personal matters, and also because of the quarantine requirement.  From the movement records of the grandparents, I believe that they stayed in Hong Kong most of the time to assist in looking after the grandchildren.

66.  In his Closing Submissions, Mr Lau submitted that there was inconsistency in the oral evidence given by the maternal grandparents and M and therefore they are not credible witnesses.

67.  Mr Lau submitted that M changed her evidence when asked why she and the children could not sleep in the only bedroom where F was occupying.  Mr Lau submitted that,

“…the Petitioner first claimed that the Respondent did not allow the children to sleep in the bedroom as he was afraid that the children’s noise would disturb him from resting properly (“會嘈住佢休息”). However, when further prompted by Mr Lau, challenging her by the fact that as the Respondent was working night shift as a security guard and in fact would not be at home during the time when the children had to rest, her explanation changed to that being the Respondent was afraid that the children would excrete on the bed and dirtying the bedsheets (“怕佢哋瀨屎瀨尿”). It is obvious she made up the excuse right away to hide the fact that she lied and that it was never the truth that the Respondent did not allow the children to sleep in the bedroom. Mr Lau put the same question to MGF who later during cross-examination in an attempt to verify the truth of the Petitioner’s answer. MGF plainly admitted that the Petitioner and the children slept with the Respondent in the bedroom at their matrimonial home, in contrary to the Petitioner’s version of the story above. It is clear that the Petitioner’s answer was fabricated on the spot.”

68.  With the greatest respect, I disagree with Mr Lau that M lied. For my part, M was only giving two reasons why F disallowed M and the children to sleep in the only bedroom in the former matrimonial home: (i)  F did not like the children’s noise while he was sleeping and (ii)  M was afraid that the children would make a mess that would annoy F even though he was working night shifts.  I find nothing contradictory.

69.  For MGF, I agree with his evidence that the maternal grandparents slept in the sitting room whereas the rest of the family members slept in the room.  However, Mr Lau never put to MGF that he was lying.  For my part, MGF might have forgotten the situation.  After all, they moved out in August 2018, i.e. more than 2 years ago before MGF gave his oral evidence.  In any event, I do not understand why this issue has anything to do with this trial.

Is M a suitable carer for the son?

70.  M said in paragraph 17 of her 6^th Affirmation that she had brought the son to two sessions of speech therapy, held between 13 June 2019 – 6 September 2019 and 9 October 2019 – 4 December 2019.  M also trained the son in daily life. Since then, the son’s speech development improved drastically. 

71.  I accept her evidence.  The up-to-date medical assessment also confirms that there will be no more follow-up treatment for speech and occupational therapies.

72.  As for the son’s gross motor delay, M said that the doctor at the Prince of Wales Hospital in charge of the son’s case informed M over the phone that the difference between his two legs is only 3mm (兩隻腳相差只有3mm)  and there would be no more physiotherapy to be held at the Hospital, therefore the next follow-up appointment at the Orthopaedics Department would be a year after.  The doctor further informed her that all future trainings would be conducted at the Child Enlightenment Centre of the Neighbourhood Advice-Action Council.

73.  In order to train the son’s muscles, M said she would take him to the playground so that he could practise jumping, running and climbing.  She would also take him to the park for exercises such as climbing, jumping and kicking football, etc., and to attend occupational workshops and use little games to train his muscles as well (會更好地鍛鍊兒子的大小肌肉，疫情前我會帶兒子去兒童室內遊樂場練習跳躍動作或跑步攀爬等，加強兒子的大小腿肌肉發展。有時我會帶兒子去社區公園活動，陪兒子攀爬、踢波、做跳躍運動等。我也積極帶兒子參加社署舉辦的活動，例如︰[大手拉小手] 職業治療親子工作坊，透過遊戲提升小手肌的訓練；觀看《BB大個天之點、線、面》話劇表演，透過話劇學習用小道具遊戲啟發創意無鍛練小手肌。[21])

74.  I accept her evidence.  Although I am not an expert in this field, it is my view that the training to improve the son’s muscles can be done by using different methods.  At least for my part, I find nothing wrong with M’s method of training.

75.  Mr Lau in his Closing Submissions submitted that,

“5….during the Petitioner’s oral evidence before the Court, she remained consistently unable to provide details of the upbringing of the children in the absence of her written evidence. In particular, her knowledge, or the lack, of the son’s physical condition was entirely inapt of a caring mother who claimed to be a major caretaker of the children. When Mr Lau asked the Petitioner for details regarding the son’s developmental delay, the Petitioner was hesitant and could not even tell Mr Lau which of the son’s legs was longer than the other, or any details of his muscle developmental delay, even months after the son was diagnosed. When asked about how high the son could jump and whether he was unable to jump as high as his peers, the Petitioner could not provide an estimate as to the approximate height the son could jump.”

76.  With the greatest respect, M did give her answer in the witness box when she said she was not allowed to participate in the son’s physiotherapy sessions:

“問： 仲有手部。Okay，咁係--嗱，講番大腿小腿先喇，係兩隻腳都有問題定係一隻腳呢，如果一隻腳嘅話係邊隻腳呢？

答：  因為F阻止我去參與阿仔嘅去物理治療嘅任何訓練，完全係唔畀社工--即係佢要書面要求社工唔可以透露畀我知，咁我只能夠係透過律師或者社工同社工之間溝通，盡--同埋兒科醫生入面得到返嚟嘅資訊。[22]”

77.  Mr Lau also submitted that,

“12. Throughout the cross-examination, the Petitioner was constantly questioned by Mr Lau in respect of her knowledge of the son’s developmental delay including language and motor delay which required monitoring by professionals. While the Petitioner had repeatedly claimed to have brought the son to various therapy sessions over the years, she was unable to provide specific details as to the son’s developmental delay without the assistance of her witness affirmations. Indeed when the Petitioner was cross-examined about the son’s disability, she pretended to not understand the questions being asked and needed to be prompted to turn to the relevant pages of her own written affirmation for reference. She then admitted she did not know which leg of her own natural born son is shorter than the other. The level of her knowledge of the son’s physical situation is astonishingly limited that it is questionable whether she cares about the son’s well-being, or the son per se, at all.”

78.  Again, with the greatest respect, whilst Mr Lau was trying to put to M that she did not know the son’s condition, when this Court asked why Mr Lau did not put the case to M to show that she was wrong, Mr Lau was basically saying that F did not know the answer either:

“官： 如果唔係，你點質疑佢呀？你嘅資料又喺邊度嚟㗎，不如咁講喇，你想質疑佢，你一定係有個答案㗎喇，啱唔啱？

MR LAU： 我係質疑佢根本唔知道仔有咩嘢問題。

MR LAU： 我冇put到個case話我個客人係個情--個答辯人係知道或者唔知道，我而家put個case就係呈請人根本都唔知道，呢個就係我哋個case喇。

官： 咁你個當事人係咪知道，你嘅當事人係咪知得好清楚？

MR LAU：  喀，呢個唔係我個case嚟嘅，我冇put到呢個case。”

79.  Mr Lau also submitted in his Closing Submissions that,

“24. Answers given by the Petitioner could not be cross-verified by answers given by maternal grandparents. Each witness provided a different answer to simple questions of mundane household details. The Grandparents even attempted to seek the Petitioner’s solicitor’s assistance when they did not know the answers to some of the questions. It is obvious that their answers were fabricated and planned to portray the Respondent as a despicable villain.”

80.  MGM, when being questioned about the faeces incident, said,

“問： 嗰度冇提過唱歌喇，而係F問the daughter，究竟婆婆有冇份笑細佬玩屎咁樣，詠彤話有喎，咁樣喎，呢度妳有冇咩嘢回應？

答： 我呢度即係話，嗰陣時就係，佢喺嗰度鬧喇，鬧呀、鬧呀、鬧，仲要問嗰個孫女，質疑婆婆係冇同佢--唔係喎，又記到去當時嗰度喇。

問： 係。

答： 我要問我嘅律師，我唔--我而家呢...

問： 妳唔問得妳嘅律師㗎噃。或者...

官： 婆婆，婆婆，妳聽住我講嘢，因為妳畀緊證供，咁就冇辦法有人可以同妳傾偈嘅，妳唔使擔心，妳將妳自己認為係事實嘅講出嚟，信唔信係我決定嘅啫，咁妳唔使擔心，唔需要話「我問過律師先答」嘅，妳唔記得嘅，妳就話「我唔記得」。

答： 即係而家即係有啲就即係話好--有啲都亂喇嘛，就係，我覺得...

官： 唔出奇，咁如果妳唔記得，妳就話「唔記得」，妳記得嘅，妳同意律師講嘅又得，唔同意律師講嘅又得，咁但係用番個心嚟答，明白嘛？

答： 知道，多謝。

官： 信唔信係我決定嘅啫。

答：  多謝，多謝，...”

81.  For my part, I agree that when the maternal grandparents gave evidence, they were nervous and prudent but they did not strike me as dishonest. I can understand why they were nervous. After all, they were elderly people who might not have appeared in court before.  It is also obvious from the above conversation between me and MGM that she carried on with her oral evidence and I found nothing wrong with her answers.

82.  Mr Lau also submitted that,

“During cross-examination, Mr Lau attempted to extract greater details of the MGM’s participation in the children’s daily lives, including the daughter’s school schedule, the son’s therapy schedule and how the therapy was performed, what sort of cartoon show the son watched with MGM, etc. Unfortunately, it became clear to the Court that MGM failed to provide any meaningful answers to Mr Lau’s questions.”

83.  MGM said in Court,

答：  幾耐幾--嗰啲我唔...

問：  幾點至幾點講唔到，日期講唔到，一星期做幾多次講唔到...

答：  係，係呀，你如果唔相信，真正唔相信，你又可以去問社區，婆婆係咪真係每日都喺度坐住，個個姑娘都會同我傾偈，嗰啲人都知嘅。

問：  咁好喇，去到--妳呢度寫住喇，就係話做言語治療課程，咁妳又講唔講到，其實係喺裡面做啲乜嘢嘢嘅呢？

答：  我唔知。

問：  唔知。

答：  唔知，因為佢哋...

官：  佢話佢喺梳化椅等喎。

答：  佢哋三仔乸就喺入面聽課嘅啫，我係喺出面，佢唔會叫我入去嘅，...

84.  As to the cartoon,

答：  卡通片係佢細路仔嗰啲咩嘢叫做--諗下先，即係一下唔記得個卡通片叫咩嘢名，佢玩--卡通片，有--佢聽好似有巴斯光年呀？又咩嘢呀？我唔識講嗰啲呢度佢嗰啲英文嗰啲，我唔識講嗰啲英文，唔記得佢啲英--唔記得佢嗰啲...

問：  大概係幾點至幾點㗎？邊個台？

答：  唔記得嗰啲英文名，因為我唔識英文嘅，佢--我唔講到嗰啲嘢，反正我哋有陪伴佢，做乜嘢都一齊陪伴，玩玩具又好，玩乜嘢都好，玩玩具車呀，變形金剛呀，同埋嗰啲搖控汽車呀嗰啲，乜嘢都有，好多--我哋好多玩具，同埋砌嗰啲積木呀嗰啲，玩嗰啲泥膠呀嗰啲，好多好多嘢玩，我--玩邊一樣，我都會跟喺身邊。好黐我嘅，我個孫，你唔信又可以，即係話--你放低佢喺度，佢就會去黐我嘅。

問：  MGM，我而家向妳指出喇，呢一段都係子虛烏有嘅，妳講唔出咩嘢卡通片、幾點至幾點、邊一個台，呢啲咁樣嘅詳細資料，呢一度亦都係妳...

答：  我做咗就心安理得喇，我陪咗，我...

問：  ...憑空作出嚟嘅，你有咩嘢回應呢？

答：  我做咗，我就心安理得，我陪咗我嘅孫，係咁，我就心安理得，嗰啲你認唔認同，我都冇所謂，反正我就我做咗，我盡咗我嘅責任，係咁嘅事實，係同佢--不過我而家係一時講唔出，唔等於我未做過、冇陪伴我個孫，唔等於咁樣樣，即係我做咗，我就已經心安理得喇，即係話你認唔認同嗰啲，我唔係--唔在乎，...

問：  係，好。

答：  ...反正我做咗就心安理得喇。

85.  For my part, in addition to not being able to recall the name of the cartoon as MGC alleged that it was in English, she also gave an explanation as to why she could not give details on other matters.

86.  As to the time and effort to look after the son, Ms Chan submitted that M is flexible and can quit her job to look after the children as M will put the children’s interests first[23].

87.  From the SIR[24], Ms Chow stated that M has been a full-time housewife since August 2018 and the financial support is mainly from the maternal grandparents.  In the updated SIR, Ms Chow said that M has been working part-time to support herself and the children since December 2019.  The work arrangements are from noon to the afternoon, three days a week earning HK$2,000-3000.  Again, it is stated that she relied on the maternal grandparents financially.  Although Ms Chow also stated that F had been paying M HK$5,000 per month since 15 July 2019, he stopped paying anything from May 2020[25].

88.  F said in his oral testimony that he could not pay as he had to make minimum repayments for his debt and that he was made bankrupt this year[26].

89.  F also said M had been working at Yamazaki under a shift system when the son was half a year old.  He alleged that M failed to mention the employment because she wants to establish that she has been the main carer of the children[27].

90.  For my part, I find no conflict between M’s evidence as the son was born in September 2016 and Ms Chow’s clear statement in the SIR that M resigned in August 2018 and remained full-time housewife.  It therefore meant that M was in some sort of employment before August 2018.  In the updated SIR, Ms Chow said M only earns a meagre income. If that is the case, given that F has not rendered any financial support to M and the children, I believe that it is the maternal grandparents who have rendered M and the children the full financial support.

91.  In Court, MGM said in her oral testimony,

“答：我帶錢到深圳嚟埋呢個家，得到而家對簿公堂，妳話一個女人慘唔慘吖，幾十歲人，仲出盡力呀，出錢又出力，可以--我可以承受到。[28]”

92.  This part of her evidence was not challenged.

93.  As for F’s allegation that M lives in Lai King, which makes it inconvenient for her to attend the Child Enlightenment Centre of the Neighbourhood Advice-Action Council, it is my view that Hong Kong is not a big place and I am sure M and/or the maternal grandparents can find the time and effort to take the son to the necessary treatments.

Grounds on which M opposes F to have care and control of the son, F’s reply and Discussion

(A)  Yunnan trip

94.  There is no dispute that F took only the daughter for a 20-odd days’ vacation in 2018. 

95.  Ms Chan cross-examined F as to why he did not take the son as well.  F replied that the son was very young then and he could not cope with both children at the same time.  In any event, he said that the son was not feeling well as he had a flu at the time.  F admitted in his oral testimony that he had entrusted the care of the son to M and the maternal grandparents while he was at Yunnan.

96.  F said in his oral testimony,

“答： 因為當時出發嘅時候，我已經同社工講咗，阿仔有可能會畀人虐打過，當時係8月吖嘛，咁當其時社工亦都係睇過我哋呢個case，負責嘅社工叫做--即係周文英嗰個團隊嘅，楊谷初（譯音），好喇，亦都係第一個社工報告入面嘅其中一員，咁當其時我同佢反映咗呢件事，跟住我就帶阿仔去--即係帶阿女去旅行，咁當其時就係嗰個月，冇--二十幾日喇，就阿仔嗰陣時係有啲唔舒服嘅，傷風咳咁，我就決定唔帶佢去，係佢哋湊嘅。返到嚟滿腳瘀痕，十幾條，所以有9月3號報警，9月6號入醫院嘅紀錄，當其時M承認有打過佢，兼且之前妳個client話喺屋企，你哋話唔清唔楚嗰條片，佢其實已經攞咗一份資料畀法援署，佢已經係同呢個黎健俊（譯音），一個PC嘅口供入面講清楚，佢係有打過呢個細路仔，我而家係錄緊音，我係畀緊口供，...

問： 但係都係冇落案起訴到女士嘅，呢個，你同唔同意？

答：  係冇落案，但唔等於--佢嗰日話畀你哋知佢拍打個細路仔係叫佢企埋一邊…[29]”

97.  For my part, it seemed that F did not have any worries about leaving the son to the other side’s care regardless of what he alleged.  In any event, why would F leave the son behind and went on to enjoy his vacation when his son was not well?  Again, I do not believe F when he said that the maternal grandparents did not look after the children as they always went back to Mainland China.  I believe that the maternal grandparents had been assisting M in looking after both children since they were born.  Otherwise, F would not have said that冇應承幫佢睇小朋友in the faeces incident.

98.  Furthermore, in F’s 6^th Affirmation, he also said the following when trying to accuse MGM for the delay in cleaning up the son,

“19. 當時是炎熱的夏天, 遇到這樣的情況, 正常且負責人的照顧者應該會立刻幫助兒子清洗, 而婆婆卻故意拖延.[30]”

99.  It is interesting to note that even F said MGM is the carer of the son.

100.  Furthermore, Ms Chow when questioned by Mr Lau also described MGM as carer of the children (see paragraph 44 of my judgement supra).

101.  It is interesting to note in the first SIR, Ms Chow said that F used to work at a night-shift security guard earning a basic income of HK$18,000 with 5 days off per month.  F in his oral testimony also admitted that it was a good job.  The reason why he quitted his job was because he was worried that the income would exceed the income limit allowed by public housing and also he needed to go on a holiday and therefore he quitted his job[31]. 

102.  It is my view that being a father of two very young children, F’s decision is irresponsible.

(B)  F took the son to the street for a sit-in protest

103.  F admitted that he had taken the son to the street for a sit-in protest when he could not see the daughter for some time. From the photos in the daughter’s Facebook account registered under F’s name, I can see that the son is sitting on a bag in the street.  F admitted his wrongdoing and promised that he would not do it again.

Suspected child abuse case still under police investigation

104.  M said in M’s 5^th Affirmation that when she fetched the son at Lai King Station on 26 November 2020 at 9:30 a.m., the foster carer told M that she discovered the son had a swollen injury on his back.  When she returned home, she noticed a wound about the size of a $2-coin. When she took the son to Dr Pang, a private doctor, he asked the son how the injury was caused, and the son told Dr Pang that F shot him with a rubber band (用橡皮筋彈佢).  Dr Pang therefore referred him to the A & E Department of Alice Ho Miu Ling Nethersole Hospital as Dr Pang could not handle suspected child abuse cases.

105.  At the A & E Department of Alice Ho Miu Ling Nethersole Hospital, M said that the son told the doctor once again that F shot him with a rubber band and the son said the same to the Police, who subsequently arrived at the hospital to investigate the matter. 

106.  The following is an extract of the dialogue between the Police Psychologist and the son:

時間	說話者	談話內容
15:50:32	心理學家	你鍾唔鍾意爸爸
15:50:34	兒子	唔鍾意
15:50:39	兒子	唔鍾意爸爸
15:50:47	兒子	唔鍾意爸爸
15:54:43	心理學家	你會見到爸爸，你會見到咩？同佢一齊會講咩架？
15:54:54	兒子	唔想同佢講
15:54:57	兒子	唔鍾意同佢講
15:55:00	兒子	唔鍾意同佢講
15:55:40	心理學家	有無人令你身體受傷？有呀？無呀？定係點？
15:55:48	兒子	有
15:55:50	心理學家	講多啲俾我聽
15:55:51	兒子	有呀
15:55:52	心理學家	發生咩嘢事？
15:55:55	兒子	我撼親個頭，跟住我個背脊痛左，所以爸爸彈我
15:56:10	兒子	好痛，背脊
15:56:19	兒子	我隻腳痛，背脊痛，所以爸就彈我
15:56:34	兒子	跟住彈我個背脊，變咗濕疹
15:56:55	兒子	彈我只背脊痛
15:57:20	心理學家	你話爸爸點樣？咩嘢你？
15:57:23	兒子	彈我
15:57:243	心理學家	你做咩嘢事唔開心？
15:57:47	兒子	我唔想同亞爸爸，我唔開心囉！所以俾啲嘢我食囉！
15:58:00	心理學家	我想知道多啲關於爸爸彈你啊！點樣彈？
15:58:04	心理學家	點樣彈？
15:58:07	兒子	橡筋
15:58:11	心理學家	講多啲俾我聽，橡筋係咩嘢樣？咩嘢顏色？
15:58:16		灰色，灰色
15:59:05		爸爸用橡筋彈你既時候，你睇到咩嘢？果時你哋喺邊度？
15:59:17	兒子	喺25樓果度
15:59:20	心理學家	果度係邊個屋企？
15:59:22	兒子	爸爸既屋企
15:59:57	心理學家	彈咗你幾多吓？
16:00:01	兒子	十吓
16:00:02	心理學家	你可唔可以數俾我聽，你由1至10數俾我聽
16:00:05	兒子	1, 2, 3, 4, 5, 6, 7, 8, 9, 10
16:00:25	心理學家	爸爸用橡筋彈你之前發生咩事？做緊咩？
16:00:28	兒子	喊
16:00:31	兒子	爸爸鬧我
16:00:38	心理學家	佢講啲咩嘢說話？點樣鬧你？定用其他咩方法鬧你？講嘢？定唔講嘢？
16:00:46	兒子	佢講大話！
16:00:49	兒子	佢講大話架！
16:00:51	心理學家	講多啲俾我聽
16:00:53	兒子	爸爸講大話
16:00:55	心理學家	爸爸講咩嘢大話
16:00:57	兒子	講好大話
16:10:41	心理學家	咁我想知道多少少關於爸爸喺邊一個地方用橡筋你背脊喎，果時你哋喺邊度架？
16:10:51	兒子	果個橡根，彈到我個背脊，跌低咗，撼到個頭
16:10:58	心理學家	您撼到個頭呀？
16:10:59	兒子	係呀
16:17:14	心理學家	你想唔想爸用橡筋彈你背脊？
16:17:20	兒子	唔想

107.  As the video has been played in Court, the content is verified.

108.  M said that she was invited to attend a Muti-Disciplinary Committee and Case Conference on 28 December 2020.  Chairwoman Poon told M that they concluded the son was telling the truth although it did not amount to child abuse, and they also held the view that there were problems with F’s disciplinary method towards the son.

109.  At the trial and in F’s 6^th Affirmation, F denied any wrongdoing and said that the wound was caused from bites by ants and insects (蚊蟲).  When cross-examined by Ms Chan, F said that the son was a dunce (佢係傻仔), meaning what he said is not credible.

答：我個仔有認知障礙，你哋知唔知㗎？難聽啲講，我哋好似阿婆話佢咁，傻仔嚟㗎喎[32]。

答：咁其實佢--我哋喺多專業會議嗰度，嗰個EETC，佢而家跟緊，亦都跟緊大半年嘅，咁佢哋已經係指出咗，細路仔喺認知上係有障礙嘅，所以佢會將時、地、人、發生嘅事件，甚至乎人物混亂[33]。

問：咁我哋可能都要需要專家報告喇，因為可能法官大人頭先喺餅帶度都清楚見到，心理學家問，「阿爸彈咗你幾多次？」佢係數咗一、二、三、四、五、六、七、八、九、十，跟住佢好似俏皮咁樣再數多次，一、二、三、四、五、六、七、八、九、十、十一、十二，應該係咁樣嘅，可能即係你頭先都應該會聽到喇，即係我聽唔--我哋就唔係專家喇，但係按剛才嗰個影碟嘅資訊就係，佢喺個次序方面係冇問題嘅。[34]

答：咁講喇，佢喺空間、次序等等，數字，佢會做出一個混亂，所以佢講嘅嘢，妳覺--都覺得好似好多嘢混埋一齊嚟講咁嘅[35]。

答：講咩嘢呀？我屋企住近嗰啲郊區，有啲蜜蜂飛入嚟，咁佢就會話「蜜蜂呀，蜜蜂呀」咁樣，跟住我話「唔驚喇，爸爸彈死佢」，咁咪搵橡筋嚟車嗰隻蜜蜂囉，跟住嗰啲蜜蜂一彈佢，咁佢 “fee”咁樣飛，佢話「快啲走呀」咁，咁囉。[36]

答：佢混亂嘅，會，嗰啲思維同埋事件，人物...[37]

110.  For my part, I have no comment if the criminal investigation has not yet concluded but I definitely do not believe the wound was caused by bites from insects and ants because there has been no medical expert that came to that conclusion.

(C)  F’s lack of family support

111.  M alleged that despite F’s claim that his mother and his sister, who worked part-time and were willing to look after the children from time to time, F was on bad terms with his own family members and they would not render any support to F to look after his children.

112.  When Ms Chow tried to contact F’s mother for the preparation of the Updated SIR, she said in paragraph 30[38] that F told her that his mother needed to attend a medical appointment and was therefore not available and he also declined Ms Chow’s offer to talk to his mother on the phone because he said his mother’s view maintained the same, that she would assist F in looking after the children.

113.  F said in his oral testimony,

“咁我阿媽嗰陣時--我哋幾兄弟姊妹就決定算喇，咁我哋就話畀佢知阿女嚟唔到見佢。好喇，跟住到後期，咁做完個社工報告嗰日，見到阿女之後好開心喇，咁就問我，不停咁問我，阿女幾時又可以見呀，點點點呀，咁我通知呢個家福會嗰邊，希望M通融，真係通融喇，因為佢有個權吖嘛，咁畀我阿媽或者其他家人見下佢喇，唔畀吖嘛。好喇，今次如果見到，佢其實已經傷心咗好耐㗎喇，隔咗成年吖嘛，又見唔到吖嘛，我畀佢見到，跟住後續又點呢？我真係答唔到出嚟，所以我冇嗌佢嚟。

答：唔係因為唔知佢問乜，而係唔想佢成日因為牽掛呢個細路仔嚟勾番起啲嘢，嚟使個情緒波動。

問：好，明白，好。咁我想向你指出，其實你咁多理由喇，都係顯示出你年邁嘅母親呢，其實根本就係要幫你細佬照顧三個細路，同埋睇住成頭家嘅，因為佢哋三個細路嘅父母，即係你細佬兩公婆都要返工嘅，因此，其實你媽咪在冇工人姐姐之下，點可能以七十幾歲高騰出時間同埋精力去幫你照顧兩個細路呢，係咪？咁所以就係佢唔能夠做你嘅證人囉，你同唔同意？

答：梗係唔係喇，我阿媽講到明如果我哋有工人姐姐，或者我有個主力嘅照顧者，咁佢耐不時嚟幫手，三個細路仔已經係講緊返小學，返全日制，佢有大把時間，呢個第一；第二樣嘢，我家姐亦都肯幫手，亦都有做呢個第一份個社工報告嘅，佢係一個專業嘅護理員嚟嘅，佢哋只--講真一樣嘢，大家都明白細路仔個福祉為依歸，我如果係照顧詠賢嘅話，我諗佢哋做一個主力唔--不切實際，因為the son凈係返呢個EETC都十幾日，做個康復訓練夾埋成二十幾日，咁我點樣搞呢？如果我唔自己親身去做，或者有個真正嘅照顧者，係真係二十四小時得嘅，...[39]”

114.  F basically said that he did not want to bother his mother with these proceedings as his mother would be so upset of not seeing his children.

115.  When cross-examined by Ms Chan as to why F’s mother and sister neither gave any written evidence by way of Affirmations nor came to Court to give oral evidence, F simply said that he did not know that he could ask them to.

116.  To this, I find it totally unbelievable for the following reasons:-

(i)  F was legally represented throughout and therefore he should have been properly advised;

(ii)  By virtue of the Order made by me after a failed CDR on 29 October 2020, I did allow parties to file and serve witness affirmations in relation to trial on custody and again by way of a Consent Summons (the relevant Order was made on 4 December 2020), time was again allowed for the parties to file and serve witness affirmations in relation to trial on custody;

(iii)  MGF and MGM filed their Affirmations on 8 December 2020 and 4 January 2021 respectively, and F managed to reply to their allegations in his 6^th Affirmation.

117.  In light of the above, the only proper conclusion to be drawn is that F’s mother and his sister are not prepared to support him.

118.  For the reasons given, I will grant care and control of the son to M.

M’s opposition of F varying care and control of the daughter

119.  M said in M’s 3^rd Affirmation[40],

“16…….the F and the daughter (who was then 4 years old)  went to Yunnan from 4 to 27 August 2018. On 28 August 2018, MGM was helping to clean the daughter’s private parts while bathing her, the daughter complained of pain. On the following day, M found some secretion with bad smell on her underpants. Similar things happened after F took her back to his home 3 – 6 September 2018. Eventually, I took my daughter to Alice Ho Miu Ling Nethersole Hospital on 7 September 2018 for examination. My daughter refused to be examined by a male doctor. Finally, she was medically examined by a female doctor and after examination, on 11 September 2019, the social worker at the hospital and the hospital authority recommended that I should report the matter to police…..My daughter complained of pain and hurt in her private part. She demonstrated, by using her fingers to make a circle and inserting into the same with her other finger of her other hand. Police report was made. The case was then referred to the police for suspected child sexual abuse and the MDCC was called for. On 18 September 2018, the daughter was interviewed by a psychologist through a video recorded interview. My daughter was only 4 years old and she clearly said that she does not like her father bathing her and it was ugly. Eventually, the MDCC concluded that there is insufficient evidence for sexual abuse…

18.  Before this incident, F used to take bath with the daughter together, despite my objection and the daughter had complained of him touching her private part and she did not like it.  F had been to overseas alone with my daughter before for about 3 times, to the exclusion of everyone.  In the past, I have found many of the pornographic DVDs and materials at home and many condoms kept in the wardrobe, even though I did not have any sex with F any more, after the birth of my son.”

120.  M exhibited the extracted conversation between the daughter and the psychologist in the interview held on 18 September 2018:-

時間	社會福利處臨床心理學家（盧楚詠姑娘）	女童
0:10:55	你放暑假做咗啲乜嘢呀？	去旅行囉
	去旅行去左邊呀？	去左日本
	邊個同你去呀？	爸爸，同埋爸爸啲朋友
	爸爸有幾多個朋友一齊去？	唔知
	爸爸你仲有呢？爸爸朋友？	嗯
	咁你夜晚同邊個一齊瞓？	同爸爸。。。然後呢兩個人，我地兩個人瞓呢度，佢地兩個就系呢度，唔同酒店既。佢地酒店系呢度，我地酒店系呢度。
	除左日本仲有無去其他地方呀？	有，大陸
	又系同邊個去架？	爸爸，同爸爸的朋友 我地行下行下就見到3個姐姐，然後就做朋友啦
	我仲想問你屋企有乜嘢人架？	有我同爸爸，我同細佬
	仲有咩人？	唔知
	頭先帶你嚟嗰兩個係邊個？	唔知
	今日同你一起來嗰兩個人係邊個來㗎？	唔知
	咁你同爸爸同細佬好唔好感情㗎？	好
	細佬幾多歲呀？	唔知
	咁你幾多歲呀？	唔知
0:12:55	你除左pat pat仲有無其他唔舒服既？	冇
	咁你pat pat 痛時小便有冇唔同既感覺？	冇
	咁你pat pat 邊度痛呀？	唔知
	Pat pat 邊度痛？	唔知
	小便定大便嗰度痛？	無
	咁有無邊啲人可能令到你覺得唔舒服唔開心㗎？	唔知喎
	近來有無覺得唔開心唔舒服既情況	冇
	你頭先喺邊度嚟？	喺醫院嚟
	乜嘢事住左喺醫院	唔知
	你喺醫院做乜嘢？	玩玩具咯
		幾時先可以出去呢？
	有啲心急下。。傾多陣計先啦	唔好
	。。。	。。。
	咁呢排去旅行，出左日本，大陸仲有邊度？	瀘沽湖
	喺邊架？	唔知
0:14:52	呢個同邊個去㗎？	仲有騎馬
	喺邊度騎呀？	喺雲南
		或者浴缸
	喺浴缸？	唔係，係麗江
	個次又喺邊個同你去架？	爸爸
	咁你仲唔中意個次旅行呀？	鍾意，最唔鍾意慢車
	乜嘢意思呀？	好慢既車咯。
	。。。	。。。
	雲南嗰旅行你開心既？	係呀
	咁有無唔開心既經歷呀？	最開心就係買玩具
	之後呢？仲有咩嘢	仲有。。麥當勞
	仲有無呀？	仲有零食。
	。。。	。。。
0:18:50	你話入醫院之前pat pat 痛？	冇
	無 pat pat 痛啦？	無
	咁依家浸完 pat pat 之後痛唔痛？	（搖頭）
	咁浸之前呢？	浸之前就唔痛
	。。。	。。。
0:22:15	咁你有乜嘢唔中意爸爸架？	沖涼洗頭
	點解唔中意？	因為佢係男仔嚟囉
	咁會點呀？	會摸gap gap 摸奶奶囉
	會摸邊度呀？	摸gap gap 摸奶奶囉
	咁你唔中意既，咁個時係點樣呀？	嗰陣時我都唔知
	摸左你邊度呀？	冇摸嘅，我都唔知嗰陣時
	係摸奶奶係咪呀？	係
	即係摸邊度呀？	會洗頭嗰時呢我要用毛巾嘅唔係會pat 到個頭
	咁仲有呢？	媽媽會幫我沖涼洗頭。
	咁爸爸幫你沖涼洗頭會點呀？	核突囉
	點樣核突呀？	佢摸我個gap
	只係邊度呀？	咁樣洗囉（動作）
	咁呢個地方平時用黎做咩？	煮飯，沖涼，同埋食飯，食零食。
	gap即係邊個位置？	唔知
	嗰個位置平時會用來做咩架？	唔知
	你頭先話唔鍾意係點樣唔中意呀？	唔鍾意，唔知喎
	爸爸幫你沖涼摸你個gap既候你覺得點樣呀？	唔知
		咁幾時先可以出去？
	咁除左摸你個gap你唔鍾意仲有咩嘢唔中意呀？	唔知呀唔知
	你頭先話爸爸摸奶奶即係邊度呀？	呢度（摸心口）
	咁你覺得點樣？	我覺得好核突
	除左核突呢？有無痛呀痕呀？	唔知喎
	摸你個gap個度呢？你覺得點㗎？	唔知喎
	你覺得熱呀凍呀，痕呀痛呀？	唔知喎
	你話吾鍾意係咪呀？	唔
	咁乜嘢原因唔鍾意呀？	唔知
	咁摸完之後你覺得點？	唔知，我覺得凍
	有冇同爸話我唔鍾意呀？	唔知喔
	你話好核突，咁你有無講呀？	冇
	你有無話比爸爸聽好核突？	冇
	你有無話比爸聽你唔鍾意？	冇
	咁旅行既時候邊個同你沖涼架？	爸爸
	有冇其他人同你沖涼呀？	冇
	咁你有無話比爸爸知道你唔鍾意咁樣沖涼？	冇
	好	咁幾時先可以出去呀？
	爸爸沖涼時摸你gap同奶奶有冇做啲乜嘢？	無
	爸爸有無講的乜嘢？	無
	沖涼既時候有無其他人喺度㗎？	有
	邊個？	有時我沖涼“阿婆”都會同我沖涼，媽咪都會同我沖涼，爸爸都會同我沖涼
		細佬就阿公沖，阿公就唔會同我沖。
	咁阿婆同媽媽幫你沖涼既時候會唔會摸你身體既地方㗎？	唔會 媽媽係女仔，我都係女仔 爸爸就唔得因為佢係男仔 阿公同爸爸就唔得，細佬就係爸爸同阿公幫佢沖涼
	。。。	。。。
	咁婆婆同媽媽都會幫你沖涼系嘛？	係
	咁婆婆同媽媽幫你沖涼摸你奶奶同爸爸一唔一樣？	唔一樣
	點唔一樣呀？	唔知喔
	咁佢地摸落去既方法一唔一樣呀？	唔知喎
		幾時先可以出去？
	爸爸同你沖涼同媽媽同你沖涼摸你個gap既情況一唔一樣？	唔一樣，媽媽幫我洗gap爸都係同我洗gap
	咁洗gap既時候有無唔一樣㗎？	冇嘅，我都唔知一唔一樣喔。
	媽媽洗你嗰gap既時候有咩感覺㗎？	唔知
	媽媽洗個gap既時候你覺唔覺得痛㗎？	唔覺得
	爸爸洗你個gap 既時候你覺唔覺得痛㗎？	唔覺得，然後我就唔知道咯。
	有冇其他時候爸爸會摸你個gap或者奶奶？	唔知
	有無沖涼以外既時候摸你奶奶㗎？	唔知
0:30:20	錄影會面完結

121.  As the video has been played in Court, the content is verified.

122.  For my part, because the MDCC concluded that there is insufficient evidence for sexual abuse, I will not take the incident into account.  However, it is the daughter’s wish to be with M and the maternal grandparents; furthermore, it is my finding that they have been the main carers since the daughter’s birth, I will not alter the Order on interim care and control.

Joint or sole custody to M

123.  While orders for joint custody are often preferable, there are certainly cases where it is not the appropriate order and where an order for sole custody should be made in the interests of the children.

124.  In SEB v ZX (Custody) [2007] HKFLR 165, HHJ Melloy stated:

“Joint custody means that the parents should be able to make the major decisions concerning their children’s life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively.”

125.  Joint custody may therefore not be appropriate where the parents are unable to work together effectively for the interests and benefits of the children Y v P [2009] HKFLR 308.

126.  In ML v YJ [2008] HKFLR 88, Recorder Rimsky Yuen SC ordered that a sole custody order was appropriate in a case where the proceedings were stated to be acrimonious and the evidence showed that there was a lack of trust from both sides, with all communication happening between lawyers.  It was stated that,

“22. In considering whether it is appropriate to make an order of joint custody, it is also relevant to consider the effect of such an order. In Dipper v Dipper [1980] 3 WLR 626, the first instance judge granted custody of three children to the father but ordered the care and control of the children be given to the mother for the reason that he did not want the children to be removed from their schools without the father being notified and he would have the say about their future upbringing (p. 630B-D). Ormrod L.J. held that this was an erroneous view and observed as follows (at p.637H-638C):

“It used to be considered that the parent having custody had the right to control the children’s education – and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other major matter in their lives, that disagreement has to be decided by the court. In day-to-day matters the parents with custody is naturally in control. To suggest that a parent with custody dominates the situation so far as education or any other serious matter is concerned is quite wrong. So the basis of the judge’s order giving custody to the husband and care and control to the wife was, in my view, unsound. In any event, these split orders are not really desirable. There are cases where they serve a useful purpose, but care has to be taken not to affront the parent carrying the burden day to day of looking after the child by giving custody to the absent parent. …”

(See also per Cumming-Bruce L.J. at p.640E-F.)

23. Liu J. in Lo Chun Wing Yee Lilian v Lo Pong Hing Daniel (above)  adopted the same approach and explained as follows (at pp. 650H--65IC):

“I cannot accept the submission that making the mother/applicant a sole custodial parent would bring about any severance of link between the father and the child. Undivided legal custody has certain consequences. It will, inter alia, facilitate the management of affairs for the welfare and benefit of the child. It would enable immediate decisions in relation to those matters to be promptly and expeditiously made. But, as it was well said by Cumming Bruce LJ. In Dipper v Dipper [1980] 2 All ER 722 at 733B, the parent without custodial status is entitled ‘to know and be consulted about the future education of the child and any other major matters’. If the father disagreed with the course proposed or decided by the mother as the custodial parent, he would have a right to resort to court for guidance. By vesting sole legal custody in the mother, it would not thus prevent the father from making a real contribution to the upbringing of the child of the family. Naturally, for any challenge sought to be made to decisions made or to be made by the mother, good cause will have to be shown.”

127.  Having considered the authorities, Recorder Yuen gave guidance as to the approach that the Court should take:

In light of these authorities, the position can be stated as follows:

(1)  In considering whether to grant joint custody to both parents or sole custody to one of them, the first and paramount consideration is the welfare of the child.

(2)  Whether or not a joint custody is workable depends very much on whether the parents can co-operate. A court may refuse to grant joint custody if there is no reasonable prospect that the parties will co-operate. Whether or not there is such reasonable prospect is a question of facts. If there is no reasonable prospect of co-operation between the parties, an order of joint custody can be a recipe for disaster and contrary to the best interest of the child.

(3)  A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’s upbringing. However, if it is clear that a joint custody is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties. As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.

(4)  A custody parent does not have the right to make all the decisions about the children in spite of disagreements of the other parent. Should there be any disagreements over major matters affecting the children, the party who does not have custody can bring the matter to the Court for determination.

128.  Having considered this case in its entirety, I will not consider joint custody at this stage.  The parents cannot communicate with each other.  The police report in relation to the son’s injury is still pending.  Furthermore, F also said in his oral testimony,

“問： 我仲想問下你，如果阿仔真係畀女士呢邊嘅照顧同埋管束--管養嘅，sorry，即係care and control嘅，咁請問喺個交接同埋溝通上面，你認唔認為M可以同你溝通到？

答：用嗰個親籽薈...

問：溝唔溝通到先？

答：...嗰啲囉。

問：如果萬一真係唔如你所願喇，...

答：小童群益會...

問：...萬一啫。

答：小童群益會。

問：即係喺個交接？

答：小童群益會個交接會幾好吖，而家我都可以去小童群益會見到阿女，如果妳話帶佢出去食嘢嗰啲，喺小童群益會佢帶咗去，跟住我帶佢去附近食嘢，食完嘢或者玩完，跟住接番佢去小童群益會，我覺得係理想嘅。[41]”

129.  When asked by this Court, Ms Chow also said,

“官： 如果照顧仔女上面都係嘅時候，妳唔覺得愈溝通得多愈--可能愈差咩，對仔女仲冇咁好添？

答：法官閣下，我同意嘅，如果爸爸媽媽真係都喺呢一個咁嘅情況底下唔能夠放低咗佢哋雙方嗰個關係嗰個嘅磨擦，或者原來佢哋一齊更加多嘅合作反而會演變到更加多嘅複--即係更複雜嘅一啲嘅關係，而以致到佢哋會影響到女女同埋仔仔嘅情緒，因為女同埋仔都繼續大喇，我亦都曾經睇番頭先嘅片段裡面，the daughter對於可能爸爸，或者大家問佢一啲嘅問題，媽媽問佢一啲問題，或者可能一啲喺管教上面，佢見到衝突嘅時候會有一啲情緒嘅時候呢，我會覺得從一個兒童福利嘅角度，可能對於小朋友嚟講亦都唔係一件好理想嘅事。咁所以喺呢度我都會即係尊重番法官嗰個最後嗰個決定嘅。”

Conclusion

130.  In light of my findings, save and except the issue of joint custody, I will adopt the recommendations made by Ms Chow in its entirety.

Order

(1)  Sole custody with care and control of both children to M;

(2)  F do have defined access in the following manner:

(a)  F will have day access once a week, alternating between the Specialised Co-parenting Support Centre (2-3 hours)  with the assistance of the Parenting Counsellor and outside the Specialised Co-parenting Support Centre (3 hours), and the pick-up and return shall take place at the Specialised Co-parenting Support Centre;

(b)  F do have day access to the son every weekend (Saturday or Sunday);

(c)  F do have access on special occasions such as Easter, Mid-Autumn Festival, Christmas, New Year, Chinese New Year and summer holidays, and extra day access on F’s and children’s birthdays and Father’s Day;

(d)  in the event of any change of access, the parties must notify each other at least 48 hours beforehand by way of instant messaging app such as Whatsapp;

(e)  both parties must (or may when circumstances)  arise make arrangements with the Parenting Counsellor to co-ordinate and implement the above access arrangements.

(3)  M and F have to accept the Co-parenting Education Service of the Specialised Co-parenting Support Centre and learn through the assistance and guidance of the Parenting Counsellor (親職輔導員)  on how to handle conflicts, to jointly discuss the matters in relation to children’s development, care and access and to implement the same.

Costs

131.  As this is a children-related matter, I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days.  Both parties’ own costs to be taxed in accordance with Legal Aid Regulations.