TCY v. CNK, also known as CNKK

FCMC 4610/2023

[2026] HKFC 23

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4610 OF 2023

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BETWEEN

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J U D G M E N T

( Care and Control, Access )

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This Application

1.  On the same day the Petitioner father (“F”) filed his petition for divorce on 2 May 2023, he made an application for care and control of the child of the family, with reasonable access to the Respondent mother (“M”).

2.  On 18 July 2023, M made her application for care and control of the child, with reasonable access to F.

3.  This is a trial for these applications; it was heard over 5 days between 6^th to 9^th, and 22^nd May 2025.

Parties background

4.  F was born in October 1973, aged 51 at the time of the trial; M was born in June 1979, aged 45 at the time. Both are highly educated. F’s first degree was in bioengineering, philosophy and chemical engineering, he also has a master’s degree in biomedical engineering and a MBA degree. He runs his own business in a medical equipment company with his partner since 2020. M has a bachelor’s and master’s degree in electrical engineering, a master’s degree in a Business Administrative Program and a diploma in psychology. She is an assistant vice president of an insurance company with regular but flexible work hours.

5.  Parties first met in 2005 when attending the same university, they subsequently reconnected, leading to their marriage in January 2013. Their only child (“S”) was born on XX March 2014.

6.  At the time of the divorce in May 2023, S just turned 9.

7.  The relationship between parties deteriorated over the years.

8.  Due to F’s allegation of S’s emotional issues, S started consultation with AC (“AC”), who carries the title of Child Development Therapy Consultant. F refers to AC as Dr AC, according to M’s counsel, AC is not a doctor. This consultation commenced in March 2022 on a weekly basis.

9.  The parties continued to cohabit at their former matrimonial home, after the proceedings commenced, F eventually moved out in January 2024.

10.  In around October 2024, M also moved out of the former matrimonial home to a new rental flat in Happy Valley.

Relevant Litigation History

11.  H’s Petition was based on unreasonable behaviour, subsequently amended to one year separation by consent, with Order made on 24 August 2023. Decree Nisi was pronounced on 6 December 2023.

12.  On 25 July 2023, S’s consultation with AC was formalised by an Order of Court, a SIR and a SJE Clinical Psychologist Report were also called.

13.  At a hearing on 14 December 2023, F agreed to move out of the FMH within one month of the Order, which he did in January 2024. The Order on the same day set down the following interim care arrangement:

a. S stays with M from Monday to Thursday

b. S is with F on Tuesday and Wednesday from 3:30 to 9pm.

c. S is with F during weekends, and on alternate basis during the following times: from 3:30pm on Friday to 9pm on Saturday; and from 9pm Saturday to 9pm Sunday.

14.  By my Order dated 4 March 2024, as custody is not in dispute, the parties were granted joint custody of S.

15.  An updated SIR was called for on 5 August 2024 ahead of the CDR hearing which was adjourned to December 2024.

16.  CDR was conducted on two occasions on 6 December and 16 December 2024. The CDR did not resolve the main issue, but Orders were made regarding holiday access.

F’s counsel closing submission

17.  Parties were ordered to limit the number of pages of their closing submission to 30 pages at the end of the trial. However, when F’s counsel Mr Leung submits his closing submission, his opening paragraph seeks court’s indulgence to increase page limit to 35 so that “cross examination transcript notes are in the body rather than in annexures for the Court’s ease of reference”.

18.  In M’s reply submission, her counsel took issue with Mr Leung’s additional pages of his submission.

19.  I take the view that Mr Leung’s approach is improper in presenting the court with a fait accompli. This is unfair to M as her counsel has compliantly produced a 30-page submission. If Mr Leung wants / needs extra pages for submission for whatever reason, the proper approach should be to write to M’s counsel to seek agreement and then jointly approach the court for this exception.

20.  Court Orders are made to be complied with, this is a simple Order to follow. Such conduct creates apparent unfairness and should not be condoned.

Legal Principles

21.  There should be no dispute that the leading principle in a case of this nature is “best interest of the child”, this is enshrined in Section 3 of the GMO.

22.  Both parties quoted the Welfare Checklist in their respective opening submission, I have been reminded that there is not to be a mechanical application of these guidelines, and I shall address the relevant elements therein which will be taken into consideration as it is applies to the factual matrix. The factors in the Welfare Checklist are as follows:

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

b. his physical, emotional and education needs;

c. the likely effect on him of any change of circumstances;

d. his age, maturity, sex, social and cultural background and any characteristics of his which the court considers relevant;

e. any harm he has suffered or is at the 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 nature of the child with each of the child’s parents with such other person;

h. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

i. the range of powers available to the court in the proceedings in question.

23.  F makes reference to the case of Naziya Aslam v Rafaqat Ali, unreported (CACV 144 of 2003 (CA) 9 March 2004), with regard to Court’s approach in considering recommendations from the SWO.

24.  M makes reference to PD v KWW [2010]4 HKLRD 191, where the Court of Appeal defined care and control in paragraph 32 therein, in particular, this include the authority to impose appropriate discipline.

Parties Evidence

25.  Parties have filed their consolidated evidence in their Affidavit / Affirmation respectively on 5 March 2025 (for M) and 6 March 2025 (for F).

F’s Case

26.  The bases of F’s complaints lie in his accusations of M’s harsh parenting style and the psychological impact he says it has on S.

27.  It is his case that S has been suffering from “emotional deregulation” resulting in aggressive behaviours, and that M is making light of his issues.

28.  He claims that he is a better father, that he was all along the “primary carer” of S, and he is in the best position to offer a balanced, nurturing and healthy life for S.

29.  In his evidence, he cites incidences of M’s parenting conduct, in particular he relies on the recordings he made of these incidences. He also spoke to an occasion when S told him he “wanted to die”; and F also complained that S has gaming addiction and therefore S should see a psychiatrist to deal with this addiction. For the latter situation, he made an application to this Court on 22 November 2024 but his application was withdrawn on the date of the hearing on 16 December 2024.

F’s recordings

30.  F places a lot of emphasis on the recording he attached to his 4^th affirmation, saying that this was “the main factors leading to the breakdown of the marriage”, which is M’s “lack of insight into her negative parenting”.

31.  There are a total of 16 recordings. 14 of which were between 31 January 2021 to 17 January 2023 (“Batch 1”). These recordings were played in Court, they were recorded when M was supervising S’s homework (except for one in which F was asking their former domestic helper what happened); very often, M had raised her voice and used strong words, and there were incidences in which S had responded. The last 2 were on one particular day on 18 January 2025 (“Batch 2”).

32.  F produced transcripts of these recording, but the transcripts include commentary and interpretation of the incident, this was challenged by M’s counsel at trial and were rightly removed from these transcripts.

33.  F relied on the recording in Batch 1 to show examples of M’s intense scolding of S. Father claims that the recordings were made on the prompting of a social welfare officer for him to make a formal report to the social welfare department and was “incidentally” produced for the purpose of these proceedings. He says that M admitted to shouting at S particularly over 2021-2023, and during the Covid pandemic.

34.  F then says the Batch 2 recording was evidence that M has continued to scold and exert pressure on S after they have moved apart. M’s counsel alleges that this was an engineered conversation (recorded without S’s knowledge), but F says this was his guidance to S to “mend S’s broken moral compass by identifying what is right and wrong and to stand up for himself when need”; F’s counsel calls it an “inevitable and beneficial life lesson for S”. His counsel then proceeds to quote the case of TWC v LKL (12/12/2013 FCMC8460/2012) where DDJ KK Pang cites at §104 that use of covert surveillance in proceedings relating to children is permissible in appropriate cases.

M’s Case

35.  W says that during the marriage, there was a lot of disagreement on parenting issues. She acknowledges that her past authoritative style might not be most suitable for S, and has since participated in co-parenting courses and adopted new parenting philosophy. She says she now promotes a balance between “structure and independence”, in order to allow S to grow within boundaries giving opportunities for him to explore his abilities. She also understands the need to adapt her approach with S’s evolving education needs and growth. She acknowledges there is room for improvement in her approach and is committed to prioritising S’s best interests and wellbeing.

36.  She claims that she is well-suited to obtain sole care and control over S and her ability to do so has been affirmed by S’s school, the social worker, and S himself.

37.  M also says she is a better role model for S as F’s financial issues undermine his ability to provide stability. M says F’s medical supplies company has been unprofitable over many years and yielded no income for him. F is in substantial financial debt, and has been borrowing to make ends meet, and she says that this stems from F’s poor financial decisions and an unwillingness to adapt. The updated SIR confirms that F has no sales record in his business since its establishment in 2020, F told the SWO that he has borrowed $1M from his business parter to cover his monthly expenses. M adds that despite this predicament, F has chosen not to seek employment and spent his time at home lounging on the couch engrossed in his electronic devices, with little contribution to household chores and issues.

38.  M also says that F failed to assist with or supervise S in his homework, often leaving his homework for M to complete on her return home after work. She says that F often causes disruption to S’s learning process and caused him to lose focus. There were constant arguments between F and S, and she was the person who had to resolve them. S had emotional outbursts in the past and F had not been effective in managing or controlling them. On those occasions, F had handed S to his own parents or ended up sending S back to M earlier than planned.

39.  She says that F shirks responsibility, always blaming others for issues with no self-reflection on his own action, and has stubbornly maintained he has no issues and does not require professional intervention for himself. Despite his claim for attending multiple courses, he does not appear to have put them into action but instead, insisting that S go see additional psychiatrist (although S already has access to the school social worker and attending therapy with AC).

40.  To F’s comments about S’s suicidal thoughts (allegedly sometime between April to June 2024), M says that F had never told her about this but chose to only inform AC and subsequently the school; she only found out subsequent via legal correspondences. To F’s comment regarding S’s alleged gaming addiction, M says F has never produced any cogent claims that S has this issue.

41.  M has moved to a new address in Happy Valley, a spacious flat with clubhouse facilities, where S has his own room. This, the M says, allows him to learn to manage his own space and establish routine. M is also conscious that S will be promoted to secondary school in September 2026, and there will be more demanding workloads, projects, and examinations; S needs to be in a protected setting where he can develop self-discipline and initiative. Under M’s guidance and influence, he is attending church and participating in community and volunteer service, including his church’s alter service.

42.  In her opening submission, M asks that the weekday access to F be reduced, this is because S secondary school schedule will be more demanding, and there will be homework which needs to be completed during the weekdays. She says that F’s homework supervision has not been consistent, resulting in M needing to follow up after S returns from access with F home, and staying up late to complete work. If status quo is kept, she says this would be disruptive to S’s routine and impact his rest time.

CP Report and evidence

43.  There is a SJE report from Clinical Psychologist Dr P dated 13 November 2023. I remind myself that this report was prepared when the parties were still living under the same roof.

44.  It is clear that the CP report is quite dated for the purpose of this trial. At the PTR in March 2025, the issue of Dr P’s evidence was brought up. M’s counsel reminded me that I have given direction that Dr P be given the updated SIR for information. Further, on the first day of trial, the issue of the scope of Dr P’s cross examination came up again, it was submitted by M’s counsel that Dr P’s evidence should be limited to the time when she was acting as SJE for the parties, any oral evidence beyond this scope should not be admissible.

45.  Other than interviewing the parties and S, Dr P had contacted other people including AC, school teachers, the domestic helper and members of extended family.

46.  With regard to M, Dr P observed M’s dissatisfaction with the lack of co-operation from F; but M denied to Dr P that she had ever shouted at S, and said that she raised her voice mainly because F triggered her. The following is excerpted from the end of her report:

“104. [M] impressed me as a highly efficient and striving individual who applied herself to the full in everything she did. In face of challenges, she would hold a strong front and keep her emotions in check. During this trying period of going through divorce and fighting for custody, she consistently denied experiencing distress. Wanting the best for her child, she was driven to train S to get the most out of his time and grab opportunities for him, In the process, she adhered to her ideals too rigidly and failed to fully understand and meet the child in his unique and true self. To some extent, she idealized her son and trivialized his behaviorual problems. Though she did not admit or might not be fully aware, [M] was very likely to be under great stress, having to cope with a demanding job and care for the family without support in a discordant marriage. Her diminishing tolerance in teaching the child at home in a way was understandable. Yet, it still does not justify her rage and hurtful remarks when the child was not performing to her standard.”

47.  Although Dr P did make an observation that M had improved towards the end of 2023:

“95. In the 5 audio clips recorded recently from September to October 2023, S's whining voice was in the foreground. He was crying aloud, agitated and kept yelling at his mother saying she was annoying. Apparently, he did not want his mother watching him and demanding him to do his homework properly. [M] tried to explain to him in a calm voice which S did not listen. It was clear that his mother was trying hard to keep her irritation and frustration down when her son was acting out in defiance. Indeed, [M] had managed to contain her emotions in the process and acted differently from the times before 2023 …”

48.  As for F, Dr P says that he had admitted honestly that he was affected by the problems at home; and that he perceived that “S displayed qualities that made it difficult to fulfil his parental role”. F says his main stress was related to the lack of support and co-operation from M in parenting, and according to the test results, he was found to be more permissive than the average parent. Some relevant excerpts from the report are as follows:

“41. In the CPRS, [F] indicated that he experienced more conflicts and struggles with his child than parents in general. In the parent questionnaire of the ASPECT, he admitted that he could not effectively control S's behaviour and could not enforce strict rules due to frequent acting out of S. In the Child Domain of the PSI, scores were elevated in comparison to the Parent Domain scores. It echoed the possibility that [F] was struggling in managing S' s behavioral problems.”

…

“106. [F] read a lot about parenting. He believed in giving the child the space and time to learn, supporting him in what he truly liked and encouraging. Although he was aware of the need of discipline and control, and even set up a parental control account over the use of internet, he seemed ineffective in getting his son to obey him. He tended to just use verbal reprimand without following with actions. [M] had cited many incidents as evidence that [F] was prone to enter into arguments with S. It was likely that [F] was weaker in understanding and handling S's emotions. There was no doubt that [F] was more hands-off and not as mindful about S's school work, since he did not believe in close supervision. Yet, he put his attention in taking care of S in his own ways. …”

49.  With regard to S, the following are her observations when she interviewed S:

46. In the first interview, S appeared tense and uneasy, fidgeting in the seat and fiddling with his water bottle for a long time. He denied having been told the reason for the interview. He did not ask any questions when the goal of the interview was explained to him, Initially, to the enquiry about his emotions, whether positive or negative, and of how he perceived his parents, he kept stone silence, as if he had decided not to disclose anything. He felt slightly more at ease when more factual information was solicited, such as his interest, games he played, you-tubes, the daily life and living environment.

47. Once his homework was mentioned, he put his head down again. He shared that he did not want his mother to supervise him, It was no use telling her and his father would not have influence on his mother. He was visibly agitated when asked whether he was aware of imminent separation of his parents, He expressed feeling both parents were bothersome in their own ways. In the Family Relations Test, he placed all but 6 card-messages out of 97 to the box of 'Nobody', which meant no one in his family was relating to him in various ways, whether positive or negative. It seemed that he was not willing to think or share too much about his family members. In a way, he was protective and defensive at the same time about his relationship with his parents….

…

49. In the second interview, S was more forthcoming and shared his thoughts in a freer manner. He honestly shared his feelings about his parents but still in a very protective way, often adding adjectives like 'a little more', 'a little less'. He was especially careful in describing mother's angry outbursts to him. He claimed that mother improved since maternal grandmother talked to mother.

50. It was his wish that he wanted to do his homework without supervision. But if it was a must, he preferred that mother did it as father was not mindful and could make mistake as he did. The amount of supplementary exercises that his mother gave him was not really a lot but he still did not want to do them. He was aware that his mother cared somewhat about his grades and would get angry over them. His mother had hit him before over his schoolwork a long time ago and she no longer did so. But he was still a bit worried about future whether she would again get upset easily.

51. Both parents would play with him. He tended to lose temper with father as he would be softer and he could have his way but mother would ignore him and he was more afraid of her.”

50.  Dr P analysis of S’s condition at the end of 2023 is excerpted below:

“97. Though he could be happy on the surface, as he engaged in play or activities he enjoyed, it was very likely that a part of him was upset and worried. As mentioned above, he was poor in emotional expression and was reticent to share his inner thoughts, he could only channel his fears and frustration by acting out. In one of the outbursts with his father, he yelled out that 'you don't understand how unhappy I am'. He also shared in his interview that parents did not understand him. As a child, he also felt powerless to see parents getting into arguments and breaking up the family.

98. Parents may attribute part of S's behavioural problems to his addiction to computer games and the aversion to homework. Understandably, these are common problems parents find in children. However, his exacerbating behaviours need to be understood against the backdrop of his current plights. Computer games with its exciting properties serve for many youngsters a convenient escape from the reality they do not like. School work, especially the boring ones, can be more detestable under an intimidating environment. No children could enjoy doing school work when a parent is lashing out threats and angry words at their back.

99. Parents accused one another of having negative influence on S. Both of them however cannot be absolved from their responsibility to S's suffering, The unreasonably harsh supervision of [M], if to continue, could undermine S's interest in study and have long term impact on his development. Without exercising proper discipline, [F] could inadvertently give too much freedom to S. In the long run, S may have problems with authority, submitting superficially but disrespectful and defiant when there is a chance. Most important of all, the tension-filled and disharmonious home environment was actually doing much harm to the S's emotional health.”

(emphasis added)

51.  On the heated topic of attending external tutorial class, F relies on comments from Dr P that S should attend after school tutorial class so as to “alleviate the conflict at home” over supervision of homework.

52.  At the end of the report, Dr P recommends that M should seek professional help in “managing stress, improve emotional regulation and adjust parental expectations and involvement”; and that F needs to take counselling course to “understand child development and acquire effective parenting skills”.

CP’s oral evidence

53.  It is of note that Dr P was brought in to give evidence on F’s request, but F denies Dr P’s finding that he is a permissive father. M says that this contradictory attitude is new and F had never indicated that he disagrees with the contents of Dr P’s report.

54.  Despite a small tussle at the beginning of the trial regarding the scope of Dr P’s evidence, I agree with M’s counsel that Dr P had been helpful in explaining contents of her report, and answering questions from the two counsels.

55.  F’s counsel tried to put forward questions to seek confirmation that F’s relationship with S is close and that he understands him well. Dr P says the test that led to this finding is self-reported, so this was actually F’s own view of the relationship. As to whether F understands S’s need then and years ahead, Dr P says F understands “at that time”, but she cannot predict “years ahead” as this would depend on “how the family develops in the coming years”. When asked if Dr P knows that F is committed to parenting better, Dr P says that that topic was not covered with her.

56.  When F’s counsel asked questions about the M, he sought confirmation whether M’s philosophy of parenting accords with her behavior, Dr P says not at the point of time of the audio recordings, but she also added that when M used “abusive” words, it could be out of frustration. She says that while there were times that M could be very angry over S’s homework, M and S can also have good times together.

57.  F’s counsel also raised the issue of M’s supervision over S as “traumatic” and therefore led to S being “unmotivated to do homework”, Dr P says unmotivated to do homework is normal for a lot of children. F’s counsel continues to pursue the issue of “trauma”, and how the supervision has caused “dysregulation”, Dr P qualifies her answer to it happening only at the point of time of the recording and further said that the “acting out” in school was not serious.

58.  With regard to a comment that S made to Dr P regarding M having improved in the recent months, but he was worried that M would still get upset easily in future. F asked whether M could change from her previous behaviour, Dr P’s observation was that “… M definitely at that time was in high stress, and there could be a … it could be quote a number of factors for mum to be that frustrated”.

59.  There was discussion on M’s understanding of S’s needs, and Dr P retort that there could be times when she could misunderstand S’s needs, and in the context of doing homework that S needs more time to do other things.

At the end of F’s counsel submission, his last question to Dr P was :

F’s counsel: And given how … the way in which the mother has taught S and her parenting style, wouldn’t it be better if the care and control is given to the father who adopts a much more relaxed approach?

A: I don’t agree. It is not as simple as that in terms of parenting.

60.  Under M’s cross examination, two salient issues were explored:

a. That F was seeking support from AC rather than to get advice on parenting. M’s counsel sought to understand the difference between advice and counselling. Dr P explains that counselling involves more “looking into the parent as a person”, and that both parent requires “self-reflection through the assistance someone who is a professional”.

b. M’s counsel also asked the meaning behind Dr P’s recommendation to F that he “should also seek counselling on practical management of his child in conflict situations. Reading books and attending short courses may not be helpful.” To which Dr P explains that she has seen a lot of parents who read books “without digestion”, and added:

“It’s the application that is the problem. I know enough parents who have all the stuff, they can talk about it, but actually putting it in practice is a lot more challenging. And I have gone through a lot of parents who read a lot and they still need specific guidance in terms of parenting.”

Social Investigation Reports

61.  There are two SIRs, both from the SWO Ms Y. The first one was dated 30 November 2023 and the updated one 30 October 2024.

62.  In both reports, the SWO recommends that M is to have care and control of S. The first SIR proposes F’s access to be one weekday after school and staying access from Friday after school to Saturday evening. The updated SIR proposes access for the F which mirrors the interim Orders made in December 2023.

First SIR

63.  I find the observations made by the SWO of S with his respective parent in the first SIR of relevance:

15. After the Investigating Officer entered the unit, S was sitting on the sofa. When the Investigating Officer tried to exchange a few words with him, he did not respond much and would either look at [F] or signal the Investigating Officer to ask [F]. Later, [F] suggested playing toys with S, but he refused. S expressed that he only wanted to watch TV and proceeded to open a YouTube channel to watch the cartoon "Hero Pig". They sat side by side on the sofa and focused on watching the cartoon. [F] would occasionally make a comment about the plot, and S would occasionally respond briefly. Most of the time, they watched the cartoon attentively, with S using the remote control to switch or fast forward the videos: At one point, S expressed a desire to eat cake, and [F] took a piece of cake and put it in a small bowl for him. He also poured a cup of water for S. S ate the cake and continued watching the cartoon while drinking the water. After finishing the first piece of cake, he asked [F] for the remaining piece and also drank the water. They continued to watch the cartoon attentively, with S occasionally responding briefly to [F]. The cartoon lasted for about an hour before it finished playing. [F] then suggested playing something else, but S refused. [F] said to S "Do you still want to watch? You've already watched it all". However, S did not respond and continued using the remote control to search for videos and continued watching. When the Investigating Officer invited S to have a brief conversation, he lay down on the sofa and burying his head in it. When [F] touched him, he pushed his hand away. It was only when S had the iPad in his hands that he immediately perked up. [F] told that S was feeling stomach pain and discomfort that day. From the observation, [F] and S related naturally and peacefully although there was not much interaction and communication. [F] showed considerable patience in accompanying S.

16. To observe the interaction between [M] and S, a home visit was conducted on 4.10.2023. S greeted the Investigating Officer at the door, holding his beloved stuffed dog toy accompanied by [M]. [M] lost her voice due to illness and could only speak in a faint voice. S reminded her not to talk too much. S began by introducing the allocation of rooms and showed where his father slept. Afterward, he returned to the dining area to do his homework, with [M] sitting beside him. [M] checked his handbook and paid attention to his progress. During this time, [M] pointed out mistakes.to S, who promptly corrected them. S focused on his homework while [M] sharpened his pencil and poured him a glass of water, which he drank. Once S finished his homework, he suggested playing Monopoly. [M] agreed but reminded him to do revision in the evening. He acknowledged her reminder. They began playing Monopoly, with S teaching [M] how to play. They laughed and talked throughout the game. [M] occasionally placed her hand on S's shoulder, thigh, or touched his hair. They exchanged glances and shared laugher. At one point, [M] bent down to pick something up from the floor, and S immediately reminded her to be careful not to knock over the nearly glass of water. As the game was nearing its end, the Investigating Officer invited S to have a brief conversation in the bedroom. After the conversation, S walked out of the room and immediately embraced [M] with both arms and rested his head against her. [M]asked if he wanted something to eat, and S nodded in agreement. She gave him a snack, and while he ate, he once again reminded her not to talk too much. Overall, [M] and S interacted naturally and harmoniously. S's care and closeness towards [M] were reflected in his interaction and gestures towards her.

64.  The SWO says that M denied ever criticizing or scolding S but admitted to raising her voice to get S to respond to her, but that she had not done so in the past year. F had criticized M heavily on this comment made by the SWO, as this does not accord with the Batch 1 recordings he made.

65.  The SWO observed that S was passive and reserved during the two interviews when she asked S about his parents:

“… However, when the topics shifted to his relationship with his parents and their care or him, he became silent or responded with brief statements. Sometimes, he even tried to redirect the conversation, and showed reluctance to express some of his feelings and thoughts.”

66.  Further with regard to the conversation with S:

24. S revealed that he learned about his parents' impending divorce from his mother, and he understood that they would live separately. He did not want them to get divorced and wished to continue living with both of them. If they had to live apart, he hoped to alternate between staying at his father's and mother's home on alternate days. S expressed that both parents were equally important to him, and they both cared of him and took him out for fun. S mentioned that his daily activities were arranged by his mother and he enjoyed the current extracurricular activities he participated in. These activities did not significantly affect his homework at all. At most, it might delay his homework until the evening. S stated that it was his mother who helped him review and check his homework and pack his school bag. However, immediately after mentioning his mother, he quickly added that his father also helped him with studying. For leisure, S reported that he enjoyed gathering with classmates, and these activities were usually arranged by his mother because she was more familiar with his classmates and their parents. When asked whom he turned to when facing difficulties or problems, S answered that his mother was the person he went to with his thoughts and problems because he believed that she could help him. He tended to cry more when he was with his father without disclosing the reasons. S stated that he related good with his maternal grandmother and paternal grandparents, and he enjoyed staying overnight at thcir flats.

(emphasis added)

67.  As for the SWO concluding remarks:

a. S was reserved during interviews, fearing that his views and responses towards his parents would disappoint them.

b. S never exhibited emotional outburst when interacting with M.

c. S’s emotional and wellbeing at school was stable, with good grades, and relationship with his classmates and teachers.

d. S has been torn between the marital conflict of his parents and is ambivalent in expressing himself and his feelings

e. M has gained S’s trust who will seek out her assistance in times of difficulties

f. M is familiar with his friends and classmate and their parents.

g. M has persistent involvement in arranging structured daily routine and ECA for S.

h. M has strong commitment in providing schoolwork support to S.

Updated SIR

68.  This report cites the change of residence of both parties; and that F has hired the domestic helper who used to work for his mother, and also adopted a dog as S has a fondness for dogs.

69.  In enquiring after the S’s wishes, the SWO has this to say.

Views of the Child-in-question

20. The Investigating Officer has conducted two individual office interviews with S, one was escorted by [M] and the other one by [F]. On both occasions, S required encouragement from his parents to have an individual interview with the investigating officer. In the first interview, S abruptly left the office midway through the interview, claiming he wanted to go for an activity and leave. Throughout both interview, S was reserved, displayed impatience, frequently looking at the clock and expressing a desire to go home. When the topics touched, on his relationship with his parents, S’s attitude became alerted, often responding with - "I don't know" or staying silent with brief replies. He even hid behind a chair or under the table to avoid the conversation. Only during warm-up games or when sharing about his summer vacation visiting relatives in Canada with the mother and camping with the father in different locations, did S show a slightly more relaxed manner. S mentioned that he has accepted his parents' divorce and has felt “much better” since they started living separately, but he did not elaborate further. Both parents involved in his living and activities, he enjoyed the time spent with them. They both help him with his homework but his mother checks his homework and assists him with packing his school bag. He usually takes an hour to complete his homework, but sometimes he cannot finish it at his father's place. When asked about the details, he avoided answering. For care and control, S reported that he has adjusted to the current care arrangements, and he can clearly describe his days with his parents. He expressed his preference to maintain the current care arrangement, without making any changes to it.

(emphasis added)

70.  The SWO concluding remarks and the basis of her recommendation is captured in the following paragraph:

23. [M] and [F] are keen to have the sole care and control of S, with each believing that they are the most suitable parent to take care of him. By observation, S is close to both parents, and he enjoys the time spent with them. Social investigation indicates that S has been under proper care of [M]. She is proven to be capable in providing him a stable and structural living. She also demonstrates her commitment in engaging herself in different aspects of his life. S is willing to share with her about his friends, school life and activities. For [F], there are indications that the parent-child relationship has been strengthened with his increased involvement in his activities, particularly those having fun. S is emotionally stable under the present caring / living arrangement. It is important to highlight that S requires to prepare for Internal Assessments (IA) for the Secondary School Places Allocation this year, which will inevitably increase his study stress. Additionally, S is about to enter adolescence, he will encounter numerous changes in his psychological, physiological, and peer relationship aspects. Considering that S will face anticipated pressure and changes in the near future, any alternations to his care arrangement will be challenging and add additional stress to him especially that he has explicitly expressed his preference of remaining the current pattern of care and access. In light of advantages of continuity of care and S's clear indication of personal preference, the Investigation Officer considers placing S under the care of [M] with defined access by [F] is to the best interest of S.

SWO’s oral evidence

71.  SWO was substantively challenged by F’s counsel in his cross examination. That said, the SWO has explained her stance and stood by her findings and recommendations. Some of the challenges will be dealt with below.

Discussions

72.  I do not intend to deal with every single incident of mutual accusations of the other’s conduct. F’s evidence in particular, is riddled with such incidences.

73.  To put matters in context, I am also of the view that it is important to draw a line at January 2024. Before this time, the parties were separated and living under the same roof. The FMH, according to the SIR, is around net 500 sq feet. M and S were sharing the larger bedroom, the domestic helper in the second bedroom, and F sleeps on the sofa in the living room. F left the matrimonial home only in January 2024.

Parenting Style

74.  I conducted the CDR for this matter in December 2024. It is very clear that the parties have polar opposite “parenting style”, and different philosophies to which they both strongly hold. During the marriage, M appeared to be very strict and demanding of S’s homework; while F is rather lax, hardly exercised any discipline and preferred to allow S to learn from his mistakes. I did make the observation that they actually complement each other well; and that S could benefit from M’s disciplinary approach, and be more relaxed when he spends time with F.

75.  In the ongoing atmosphere of mutual accusations, distrusts and animosities, parties were unable to work together to advance S’s best interests.

Social Investigation Reports

76.  I accept the two SIRs and the recommendations made by the SWO.

77.  F’s counsel attacked the SWO at cross examination, criticizing the scope of the SWO’s investigation and that it falls short of reasonable requirement. Inter alia, he says there were :

a. Failure to consider F’s request to take into account the CP report in the updated SIR.

b. Failure to consider F’s request to interview two teachers at KY School.

c. Failure to consider S’s “emotional dysregulation” condition in existence before the first SIR.

d. Failure to consider information from F about S’s “unprovoked emotional outbursts”, and his proposal for the SWO to interview AC.

e. Failure to listen to the recordings made by F.

78.  It is not infrequent that often parties (in general) attempt to direct SWOs in what they cover in their reports. In some cases, parties could inundate a SWO with information, sometimes even unilaterally without informing the other side, and some of which can be self-serving. Such practice should be discouraged. In the context of children issues in the family court, SWOs are often tasked with preparing reports to Court to assist Judges in making decisions. These SWO would and should have the necessary experience to complete their required investigations and produce these reports. They should be left with a freehand to consider what materials they think appropriate for the purpose of their reports, this includes what information to read, who to interview, what to include or not include in their reports, and the extent to which any past events require a deep dive investigation. Thereafter, if a trial is inevitable, it is then up to the instances of cross examination to challenge the content of the report or the premises upon which recommendations were based.

79.  With regard to F’s complaint that she did not consider the CP report in the updated SIR, the SWO maintains that she is not aware that there was a CP report. Under cross examination, the SWO has repeatedly said that it was her role to produce a report on S and his relationship with his parents. It is contended by M that the SWO should arrive at her own conclusion with her own insights and opinion, and not to rely on information from the CP report. I agree, even if the SWO is aware of the CP report, for the purpose of her updated SIR, the CP report was dated almost a year ago.

80.  With regard to the SWO listening to F’s recordings, in looking back at the evidence, the first time such recordings appeared in evidence should be in F’s second affirmation on 26 September 2024 in support of his ex-parte application for care and control of S, there was supposed to be a CD Rom and transcript (but the filed affidavit does not have the CD Rom but only a 3-page transcript), but the main body of the affidavit gave zero information as to the background of these various recordings; this application was dismissed on 3 October 2024 for want of urgency. As the updated SIR was filed on 30 October 2024, it is conceivable that the SWO could not have accessed the recording or the transcript, and even if she had seen the transcript, the lack of information could not be of assistance to the SWO. The following time the recording appeared was in F’s 4^th affirmation filed on 6 March 2025, this was 4 months after the updated report.

81.  The SWO says that she has conducted a comprehensive review of S’s current status at the two relevant points of time. She says she refused to listen to the abovementioned recording (Batch 1) because she does not have the context in which those were recorded. I agree with this comment. Listening to these recording not knowing who was present, what happened just before the recording, what was the circumstances that led to S’s behaviour and M’s reaction, could not assist her investigation. F’s counsel played the recording in court; SWO commented that while the way in which M spoke to S could be improved, she is not of the view that her assessment can be based on those instances. I also have to agree with the SWO’s question as to why F chose to be secretly recording these occasions instead of intervening M’s behaviour to relieve his son of the alleged trauma.

82.  F complained that the SWO did not interview previous teachers of S who had seen his emotional outbursts. To this, the SWO says she was focused on S’s current situation and interviewed S’s current teacher. With regard to S’s condition at school, this was the teacher’s observation of S’s condition in the first SIR:

27. [Mr A] was the class teacher of S. He reported that S did not show airy signs of emotional instability at school. He appeared to be calm and jolly most of the time, and loved witty conversations or exchanges with others. Nothing had triggered or caused any emotional outburst so far, although he had occasionally shown normal signs of normal ups and downs, likely to be caused by trivial things. Towards the end of last year, they arranged for S to meet with their social worker primarily because they learned that his parents were going to divorce. The arrangement for him to meet the social worker was a preventive measure, not because he had emotional or behavioural problems. Mr A revealed that S, liked other kids of the same age, loved to seek adults' attention and approval. It would take some rational persuasion to move him into doing things he was reluctant to do. He would be more cooperative if he was provided with sound reasons, recognition and a bit of sense of humor. S was a playful and kind-hearted person to be around. Though he was honest and direct with his thoughts, he knew his boundaries and was liked by his peers. Mr A stated that S's parents were present whatever events they had. They also came to school to pick him up after school, but on different days.

And then in the updated SIR:

21. Mr A, is the class teacher of S this year. He reported that S is emotionally stable at school. He noticed that S's emotional management has improved, and his attitude towards classmates has become friendlier, resulting in fewer conflicts. Mr A has talked with S about the changes in his family, and he was open and calm when sharing. S expressed that he would be happy if he felt understood and acknowledged. He feels free with his father, who lets him do what he enjoys, while his mother set limits to him. Although he does not like being disciplined, he understands her good intentions. S also shared his current care arrangements, noting that there are times when he feels tired and confused, he seems to have adjusted.

83.  I do not take the view that the SWO needs to interview AC, AC is after all, S’s treating therapist; she has not been brought in as a witness to these proceedings. Dr P had contacted AC and recorded her exchange with her, whatever was said between Dr P and AC is clearly hearsay.

84.  I do not accept that the SWO is derelict in her responsibilities, or has taken a “surface approach’ in her investigation as alleged in F’s Reply submission. I do not find F’s multiple complaints about what was not considered by the SWO helpful; nor do I find the cross examination by F’s counsel to have shaken the basis of the SWO’s position.

85.  SWO says that her report is based on her observations and investigation which included the parents, interactions between S and them, interviews with S, and communications with S’s teacher and grandparents, she makes it very clear that she has aimed to deliver comprehensive reports and confirms that her reports achieve that purpose.

86.  I have found the two SIRs to be relevant and comprehensive in providing assistance to the Court with regard to the S’s condition at the relevant times. The reports and their recommendations are but one of the many factors that I will take into consideration in my decision.

CP Report

87.  Dr P was reminded during her oral evidence that the scope of her evidence is limited to the timing of her report, and not beyond. Despite F’s counsel several efforts to go beyond this parameter in his cross examination, it has been interjected by M’s counsel, or Dr P had refrained from answering those questions. Dr P repeatedly said in her oral evidence her observations were limited to the point in time; in particular, with regard to M, that during the time of the recording, there was a lot of stress on the homefront when they lived under the same roof.

88.  I am mindful that the CP report only reflects the situation of parties and S at the end of 2023. However, I have found Dr P’s explanations of her report in court to be helpful, the relevant parts of her report and the cross examination have been quoted above.

About the Child

89.  Looking at the reports, my sense of S is that there was a time when he was very unhappy about his parents’ divorce. His difficulty in engaging with the CP and SWO is telling, and as a young child who may not have the wherewithal to handle the situation, he had chosen to be in an avoidance mode, and refrain from answering questions from the CP ad SWO. Dr P has said that S is not in loyalty conflict as he does not prefer one parent over the other, but I do recall the SWO’s observation of S’s fear of disappointing his parents in the answers he may give to her. This should not be a situation a child should find himself in.

90.  The updated SIR shows there is possibly of a silver lining. With F having left the matrimonial home, and M finding new accommodation where S can have more space and the privacy of his own room, S seems to be more settled, and have accepted the situation of his parents’ divorce. According to the school teacher, he shows readiness to discuss the situation at home. Compared to the first report, S’s interaction with his F has improved with the latter focusing on outdoor activities with S on the weekend. His life seems to have fallen into a good routine with S being observed to be emotionally stable.

Father’s evidence and conduct

91.  F says he has been attending a lot of classes and acquiring various practical parenting skills, and he has read a lot of literature on the subject. However, the tone of F’s case during these proceedings from his written and oral evidence, and reflected in all the submissions, is accusatory as he claims that it is all M’s fault which causes S’s “emotional dysregulation” and “trauma”. The impression I have, is that he does not appear to recognise he possibly has a role to play in S’s earlier acting out and non-compliant behaviours; nor has F displayed any intention to change from this stance.

Batch 1

92.  I will start with F’s 14 covert recordings in Batch 1, F had on multiple occasions recorded M’s interaction with S. While he says that this was meant for the Social Welfare Department (“SWD”), he ends up using this as the bases of his substantive argument in his case, and the Court has not been shown any evidence with regard to whether he did actually send these recording to SWD, as alleged to be his original intention for these recordings.

93.  The UK Family Justice Counsel had recently issued guidelines with regard to covert recording in family proceedings. What can be gleaned from these, is the balance that needs to be struck between a party’s intention to show Court what happens “behind closed doors”, versus relevance to the issue before the court. While I can easily hear F’s argument that these are relevant to his accusation of M’s harsh parenting, what is clearly missing in F’s affirmation when making reference to these recordings, is information as to the background and context of these multiples recordings. All he said in paragraph 26 of his affirmation is that they were “some unpleasant episodes at home when [M] supervised S on his piano or homework in 2021 to 2023”.

94.  The way that these recordings were produced was not challenged, instead when F’s counsel played through these during trial, M has addressed the questions and explained the situation.

95.  I find that these recordings lack context, and while these recordings only captured what had happened on occasions during the relevant time (January 2021 to January 2023), it is not representative of the dynamics now before the court.

96.  I also observed that comparing the Batch 1 recording (14 in total) and those given to Dr P in 2023 (§92 of her report, totalling 23), the ones where Dr P commented on M having improved (see paragraph 47 above with regard to recordings in September to October 2023) are no longer exhibited to F’s updated affirmation.

97.  I repeat here that I echo the SWO’s question as to why F did not intervene during these recordings. It is confounding if F was so upset with the way M was teaching S and says it causes S to be “dysregulated”, why did he not stop M from causing this alleged trauma to S? His counsel attempts to explain in his closing submissions saying that in not intervening, F is “sheltering S from witnessing parental conflict”. I do not agree, there are many ways that intervention can be conducted between two adults, but to opt for non-intervention over stopping M in her “harsh parenting”, is in my view not a judgement call in the best interest of the child.

98.  On a balance of probabilities, it is my finding that these recordings were made by F largely for litigation purposes.

Batch 2

99.  With regard to Batch 2, the following are the excerpts from the transcript provided by the F. Both recording were from the same night.

18 January 2025 22:35 S: 點解眨下眨下 F: 壞壞地 F: 點辛苦呀做功課? S: 唉。 係咁畀我阿媽鬧囉。 F: 係咁畀阿媽鬧? 點解? 你唔係做曬咩? 你唔係做曬咩? S: 我做緊㗎嘛，我做緊嗰陣時畀佢鬧。 F: 你做緊佢點會鬧你? S: 會㗎。 F: 會? 點解? 你做得唔夠快呀? S: 唔知。 F: 唔知? 咁無端端鬧你。 F: 咁琴日呢? 琴日你話咩呀? 佢跟住, 鬧完你之後趕你出去呀? S: 今日嚟。 F: 今日? S: 佢趕，唔係，好無聊呀，佢叫我“躝”吖嘛... F: 叫你“躝”? “躝”咩呀? S: 咁我咪真係出咗去囉。但係之後我出左去之後佢又叫返我返嚟， 跟住我又要返返去囉，佢叫我執嘢走吖嘛，佢叫我要執埋嘢吖嘛，但之後又叫我唔好走吖嘛。 F: 執嘢去邊呀? S: 好無聊，唔係吖，即係，唉吖，唔知吖 F: 叫你“躝”? 唔係吖嘛。 F: 咁但係你最後唔係做曬功課咩? S: 係呀。 F: 咁無理由鬧你吖 S: 最後趕住做返囉。 F: 即係你做得慢鬧你。 S: 唔係做得慢，我唔知搞咩。 F: 即係無端端鬧你? S: 我唔記得左啦。 F: 是旦啦。 (emphasis added)

100.  Then the evidence is that S went to take a bath and returned to the following conversation recorded by the F.

18 January 2025 23:13 S: 我過嚟瞓，我過嚟離你嗰邊，我帶埋張被。 F: 呢張。 S: 點解我用薄個張? F: 呢張厚呀。 S: 呢張厚呀，OK。 F: 我想問呢，你之前話呢，你媽咪係點呀？你做功課嗰陣時跟住睇iPad，跟住佢入嚟就佢就揼咗你嘅iPad呀? S: 冇呀，唔係，即係你當佢掟落地下左右囉。唔係，唔係真係掟落地下，佢會真係收埋佢囉。 F: 你唔係話佢掟落地下咩? S: 冇掟落地下，但係會可能掟落張床度囉。 F: 即係佢睇咗你iPad，跟住就拎個iPad掟落張床。 S: 左右囉，你想做咩呀? F: 冇呀。 S: 你問我做咩呀？ F: 我諗住同你去整個iPad，或者如果唔掂嘅話，買。你個iPad呢... ….. F: 你媽咪掟咗之後，你另外嗰個角都爛咗啦。 S: 唔係，本身兩個角係自己爛嘅。 F: 跟住佢再掉落地，咁樣.... S: 冇掉落地，好少。 F: 但係掉落邊度呀? S: 可能跌落地係我自己跌嘅。唉。你當佢係咁樣囉，即係掟iPad，boom! 你知我張床係軟㗎嘛。咁就彈，彈，跟住咁樣撞’Hi’到少少，跟住再跌返落張床度囉。 F: 即係佢掟部iPad，跟住彈彈下就彈到落地... S: 冇，冇彈... F: 跌返落.... 彈到落床度 S: 床跟住就再撞牆。 F: 彈到落床跟住就再撞牆度。 S: 係。算啦。 F: 喂，唔得㗎嘛，大佬。 S: 得啦，冇所謂，個iPad都係佢嘅，個iPad本身佢嘅。 F: 咁有咩要講㗎嘛，點可以掟iPad? S: 佢掟爛咗，都係佢掟爛自己啲嘢咋嘛。 F: 喂，咁點得呀。 S: 部iPad佢㗎嘛。 F: 喂，我可唔可以係你面前掉你個書包呀，或者係我買個禮物畀你，你可唔可以係你面前亂咁掉嘢呀。 S: 可以呀。 F: 吓 ，唔係呀。 S: 你買㗎嘛。除非你真係送咗畀我，但係媽咪冇講送咗畀我。 F: 咁都唔得㗎，大佬。 ….. F: 我想講畀你知呢，你阿媽冇理由你做功課，跟住佢唔知點解跟住就掉你部iPad囉。 S: 唔係我都有錯嘅，佢叫我做功課。我喺度睇緊iPad，同人Chat緊。 F: 咁但係佢唔可以掉你部iPad。 S: 得啦。 F: 但係問題係你要同佢講囉。 S: 得啦，冇嘢呀，咁我咪同佢拗完囉，拗完咪講完囉。 F: 咁你話佢今日又鬧你㗎嘛。 S: 得啦，冇乜事啦，唉。但係你又唔好同人講呀，大佬。你講，我一定畀佢鬧喎。 F: [S]有啲嘢啱就啱，唔啱就唔啱，你明唔明呀，你唔講嘅時候呢，佢越嚟越咁樣鬧你，或者掟iPad，掉好多其他嘢㗎。 S: 唉。由得佢鬧我囉。 F: 點可以由得佢鬧你呀? 大佬 。 S: 佢掟我iPad，我同你講呀，我都畀佢鬧啦，佢知道咗嘅話。 F: 咁樣成日畀佢鬧，你咪驚囉。 F: 即係佢做得啱就啱，唔啱就唔啱㗎嘛。 F: 咁佢越鬧你，咁你點會鍾意讀書呢？ (emphasis added)

101.  My observations with regard to these two rounds of conversation shows that F kept on circling back more than once (as underlined) to talk about M’s scolding S and throwing the iPad, to the extent that even S felt he had to ask why F was asking him those questions. I also observed that S is defensive of M, and asked F not to raise the subject as he might get into trouble, this is an example of how children can be caught between their parents.

102.  M says this was deliberately recorded for litigation purpose. F says in his Reply submission that it is to “provide the Court with an up to date understanding of the present dynamics between S and M”. I fail to see how a one-off recording is representative of what is going on at the M’s home, nor could this be relied on to say that M’s “harsh parenting” is on-going and she has not improved. The obvious questions are: Why did F suddenly decide to record his conversation when they were heading into bedtime? What was F aiming to show? If F is teaching S a “life lesson” as he claims, why does he have to record it? Under cross examination, F admitted to intentionally recording these conversation. I do not accept that this is life lesson moment. I am inclined to agree with M that this is litigation tactic on F’s part, and it is not accepted by me that this serves the point he was trying to put forward.

103.  With regard to F’s counsel quotation of the above case of TWC v LKL, upon which he relies to justify recording the child and M, M’s counsel says F has failed to quote the full paragraph from that judgment, which he then did in his Reply submission:

“104. Having regard to all the above matters, I accept that the use of covert surveillance evidence in proceedings in relation to children is permissible in appropriate cases. As to whether it is appropriate to use covert surveillance evidence in any case, in my view it depends on a consideration of the special circumstance of individual case with the best interest of the child as the guiding principle. Where there is clear evidence showing that the spouse is a danger to the child in question, presumably the use of covert surveillance can be justified. In other cases, for my part, probably it is wise to exercise caution. It is because to spy on the other party’s private life is intrusive and is often frown upon and taken as prying and underhand by the other party when he or she finally finds out that his or her privacy has been under covert surveillance. It is going to do a lot to undermine trust between the parties. It increases the costs and expenses of the litigation. It curtails the communication between the parties. It harms their continuing relationship as parents. It increases the tension, bitterness and conflict that the parties may encounter in an adversarial litigation system. The parties may be discouraged from co-operatively working together as parents in the long run, and eventually the best interest of the child will be inevitably threatened.”

(emphasis added)

M’s counsel went on to submit that this is not a case where the M’s actions pose “danger” to S in the form of neglect, domestic violence or endangerment.

104.  Covert recording of an adult is controversial, that of a child requires a lot of consideration. I am mindful of the balancing exercise I need to consider in looking at evidence of this nature. There is a serious breach of confidence and invasion of privacy which could be harmful to a child. In the present case, knowing S’s love for both his parents, I aa most concerned as to how S would react if he realised that F had recorded their conversation and used it in these proceedings against M; and how that might affect his trust towards F in the future. Again, there was no challenge to this being placed into evidence, but I am putting on record that such conduct should not be condoned.

Alleged S’s Suicidal thoughts

105.  In between April to June 2024, on one occasion according to the F, S told him he wanted to die.

106.  What is alarming is that F did not inform M immediately or at all, he only chose to tell AC after a few days and then told school after a few months. The reason he gave in court was that he was afraid S would “feel betrayed”, and that he would lose this communication channel with S.

107.  I find this conduct of great concern, if he sensed that S really meant what he said and did not inform M, this is an unacceptable co-parenting approach regardless of his rationale and could not possibly be in S’s best interest. F appears to have let his feelings against M gets in the way of taking immediate action to assist S. Even if he felt that S was not serious, which might be the case here as he waited a while before informing S’s therapist, it must also be something he should have communicated to M.

M’s evidence and conduct

108.  In response to Batch 1 and 2 being played in Court, M explained the incidents and reasons for her behaviour. I notice that she demonstrated contrition and acknowledged that her approach during those times were not in S’s best interests.

109.  I also acknowledge M’s position as represented by her counsel’s submissions. In her counsel words in his closing submission, M has accepted her mistakes, recognizes them, and is committed to make amends.

110.  During her cross examination, she said she did reflect and accept that the outbursts were not her best behaviour is learning to manage her emotions. M says she has been attending counselling, this was after the CP report was released by Dr P; while F argues that this only came to light during trial, I do not see any issue with this.

111.  I accept M’s evidence. In particular, I accept that she has reflected on her behaviour, recognised her short-comings in the previous way she handled S, has sought help, and is on a continuous path to do better. There may be time of relapses, but the path to improvement often starts with self-reflection and acknowledgment that something is amiss.

Care and Control Decision

112.  I have decided that M is to have care and control of S. Several factors were considered; these are set out below.

Best interest of the Child

113.  S has mostly been in the care of M since F moved out in January 2024. It is evident from the updated SIR that S has settled well in his new surroundings at their Happy Valley home.

114.  M has clearly demonstrated that she is able to take care of S daily life and needs with a balance of schoolwork and developmental interests. This is confirmed by the SWO, and in the latter’s investigation with the school.

115.  S is at an important point in his education pathway as he will be moving up to the secondary school in September 2026. In my view, it is critical that S should not be subject to changes when his life is now routine and stable, changes will create a stressor that will no doubt impact his wellbeing. I do not see any reason in this case where a change to his care and control arrangement is justified.

Child’s views

116.  The SWO has reported that that S would choose to turn to M in times of difficulties and problem. This shows that S trusts M and her advice. Repeating here the excerpt from paragraph 24 of the first SIR already quoted above:

“When asked whom he turned to when facing difficulties or problems, S answered that his mother was the person he went to with his thoughts and problems because he believed that she could help him.”

117.  While S has been upset over the breakup of his parents, his preference is clear that he chose to be living with his mother. In the updated SIR, it is recorded that S clearly indicates his preference to maintain the current living arrangement.

118.  It is important to have in mind the importance of giving weight to a child’s view as emphasised by the Court of Appeal in YSYM v LHB [2020] HKCA 586 at §71, citing the following paragraph from Rix LJ in the case of Re R (Residence Order) [2010 1 FLR 509:

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

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

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

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

119.  I am not at all persuaded by the F’s argument that S wishes should not be taken into consideration because he is “young”. In F’s closing submission, he says his son, “just over 10 years old, he clearly had difficulties in expressing himself and lacked understanding as to the consequence of his decision”. On this comment, F relies on S’s behaviour as described by the SWO in her updated SIR, repeating here her paragraph 20:

Views of the Child-in-question

20. The Investigating Officer has conducted two individual office interviews with S, one was escorted by [M] and the other one by [F]. On both occasions, S required encouragement from his parents to have an individual interview with the investigating officer. In the first interview, S abruptly left the office midway through the interview, claiming he wanted to go for an activity and leave. Throughout both interview, S was reserved, displayed impatience, frequently looking at the clock and expressing a desire to go home. When the topics touched, on his relationship with his parents, S’s attitude became alerted, often responding with-"I don't know" or staying silent with brief replies. He even hid behind a chair or under the table to avoid the conversation. Only during warm-up games or when sharing about his summer vacation visiting relatives in Canada with the mother and camping with the father in different locations, did S show a slightly more relaxed manner. S mentioned that he has accepted his parents' divorce and has felt “much better” since they started living separately, but he did not elaborate further. Both parents involved in his living and activities, he enjoyed the time spent with them. They both help him with his homework but his mother checks his homework and assists him with packing his school bag. He usually takes an hour to complete his homework, but sometimes he cannot finish it at his father's place. When asked about the details, he avoided answering. For care and control, S reported that he has adjusted to the current care arrangements, and he can clearly describe his days with his parents. He expressed his preference to maintain the current care arrangement, without making any changes to it.

120.  F says S’s indication of maintaining status quo must be read in the light of S’s “reluctance” to continue with the interview, and then F proceeds to quote what AC has said of S and what she communicated to Dr P. To the extent that F seeks to rely on something AC said, I attach little weight as she has not been a witness in this case, and anything that she allegedly said had not been explained or elaborated or put to test in cross examination.

121.  I have a different interpretation of the above paragraph. I see a child who had been unhappy with the divorce of his parents, and did not wish to talk about it. He was in avoidance and this is not an indication of his maturity level or his inability to express his preference. Paragraph 22 of the updated SIR is also worthy of note here:

Remarks and Recommendation

22. Gathered information indicates that [M] and [F] continued to demonstrate their genuine parental love and care to S. They have made efforts in helping S to have smooth adjustment to their divorce by observing the interim living arrangement and avoiding dragging him into their disputes over holidays arrangement. It is recognized that S has been trying hard to struggle and adapt to the changes arising from family transition. His emotion has not been adversely affected by his parents' separation and has accepted their divorce. It is worth mentioning that S once again showed reluctance to be involved in the investigation process. He was highly cautious about mentioning anything about his relationship / interaction with both parents and tended to hide up his true feelings, so as to avoid disappointing them. S would absolutely benefit more if the parents could set aside their prejudice to communicate with one another and collaborate for the sake of S's best interests that prevents him from having the feeling of being caught in the middle during family transition.

It is unfortunate to see a child trying to accommodate his parents, as it should be the parents who should place their child’s interest above their own feelings towards each other.

122.  It is also clear that by the time of the updated SIR, S has accepted the situation of his parents’ separation, and it is recorded that S was able to discuss about the home situation with his teacher in an “open and calm” way. I disagree with the way that the F has tried to paint a picture of his child being unable to express himself or has a view of his own.

123.  Dr P has described S as a bright child who was good natured, cheerful, playful and enjoyed school a lot. S’s extended family members describe him as smart, intelligent, easy going and kind. His teacher describes him as calm, jolly, and loved witty conversations. In the updated SIR, M says he is intelligent, and F says he is getting more mature, and learning to manage his emotion. While most have commented that S had difficulty expressing himself, he has evidently found his voice in expressing his wishes to the SWO, and this must be given due respect.

124.  S told the SWO that he prefers to maintain the present arrangement. S acknowledges M’s good intention in setting limits for him, his choice demonstrates to me a maturity in that despite he enjoys certain freedom, he appreciates the way in which M arranges and organises his life for him as well as providing daily care and guidance.

125.  I therefore take the view that S’s wishes, as captured by the updated SIR is one of the important factors that I will be taking into consideration.

SIR recommendation

126.  I accept the SWO’s reports and the basis of her recommendation, which has been quoted above.

F’s ability to support schoolwork and manage emotions, and exercise discipline

127.  Based on the evidence before the court, there had been occasions when S was not able to complete homework while with F during the weekdays. Furthermore, based on the M’s affidavit, there was an occasion when F told S not to tell M that the schoolwork was not completed, M found out when S worked late to complete the unfinished homework when he was back at her residence. There had also been an occasion when F did not assist S in finishing his homework because he says S was not feeling well.

128.  It could also be seen in the earlier SIR that F was not well equipped to deal with S’s tantrums. The evidence is that as recent as October / November 2024, F had to bring S back to M’s home for her to manage S. F now says he has improved techniques from the courses he attended or his reading, and will deploy them when dealing with S’s tantrums. He therefore says situation has improved.

Mother’s emotional / behavioural issues

129.  A large part of F’s case is based on his complaints about M’s harsh parenting, as can be seen from the recordings he put into evidence. It is also his contention that this is ongoing.

130.  However, other than Batch 2 recording, F had not adduced any further evidence of M’s current behaviour. Even if one were to accept the way that Batch 2 was recorded by F, the two recordings do not substantiate the on-going negative parenting that the F hopes to prove.

131.  M’s explanation on this was her frustration on the lack of contribution by F to home, and his unco-operative gaslighting of M’s effort in teaching S. This was exacerbated by covid when they lived separately under the same roof at their FMH.

132.  Furthermore, while F accused M’s conduct led to S’s declining grades; under cross examination, F acknowledged that S’s grades had improved since his departure from the FMH. Despite this oral evidence, F’s counsel doubled back again on this point in his reply submission about S’s grades after F has moved out. By merely referring to report cards to make this point is not sufficient as there can be a number of reasons why grades fluctuate over the years, I do not find that F has shown how S’s “low” grades were caused by M.

133.  In hearing M’s oral evidence and observing her in Court, I accept that M’s behaviour has improved from the time the recordings were made. She reveals that she has consulted professional to help her understanding and how to approach S, and that she is on-going reflective on how best to parent S so that his best interest is holistically served.

F’s “permissive” parenting

134.  Having addressed F’s allegation against M behaviour, it is necessary to cover this observation of F.

135.  Based on test results, Dr. P described F’s parenting style as relaxed, noting that he placed less emphasis on S’s academic performance and has not actively helped him regulate his emotions during his outbursts. F denies Dr P’s test results which labelled him as more permissive than average parents.

136.  Under cross examination, F acknowledges that there had been 4 occasions when he failed to manage S’s tantrum and had to return S to M before the end of access. There had been allegation from M that homework was not completed when S was with F, to which the F had given certain explanations (at least on one occasion that S was sick).

137.  M contends that while F can play and grow with S, he lacks the capacity to handle S’s day to day affairs, including academic and emotional support.

138.  I do not intend to make a finding on whether F is “permissive”, this is a comparative term. My focus is on looking at whether F has shown that he has been effective generally in S’s daily care, and what it means for S’s interest if M’s contention is more likely to be correct.

Mother’s care

139.  I take the view that at this point of S’s life, being a transition from primary to secondary school and all-encompassing adjustments and demanding workload that comes with; M is in a better position to offer S a more structured and disciplined school week life than F.

140.  I also accept the SIRs where the SWO made her observation on the way that M is providing different aspects of care to S.

Welfare Checklist

141.  It is of note that a number of factors in the above-mentioned welfare checklist come into play. Some of these have been captured above, this include the ascertainable wishes and feelings of S, S’s relationship with each of his parents, and my decision in part based on the preference of continuity of care.

142.  F’s counsel specifically asked me to address on “harm to child”, I do not see that this has been substantiated.

143.  I will further add that with regard to S’s physical, emotional and education needs, I am of the view that this has been, and hopefully continues to be provided by M’s daily care, F’s engagement with him in play and other relaxing outdoor activities when he has access; and with both parents supporting to him emotionally with their respective approaches.

144.  I have considered and weighed a number of factors in coming to my decision, these factors are listed above; which also includes my observation of the parties throughout the time I am seized of this matter, their conduct at the various hearing including the CDR, and when they gave their oral evidence at the trial.

Concluding comments on care and control

145.  F has focused largely in the past, and looking at all his submissions, have taken on a finger pointing approach against the M. He needs to appreciate that this is not conducive to co-parenting, and has already impacted S negatively.

146.  Parties must understand that this is not a competition as to who is a better parent. In caring for a child, it should be recognized that different parent will have a different roles in relation to their children, which should play to the strength of the respective parent. In this case, it is my observation that M’s strength is her care, providing a structured and routine life, emotional and homework support, and a confidante to S. According to the SIR, S’s relationship with F has improved, and he enjoys time going on hikes and walks with him. It is very easy to discern how the parties here can contribute to S in a holistic way, with M on the structure side requiring discipline and encouraging responsibility and diligence, and a relaxing unwinding time with F, who can teach him things which are his forte. It is also important that both of them acknowledge the role that the other parent plays, instead of fighting over S’s care and placing him in the middle of their acrimony and distrust.

Access

147.  The current Orders for access is mentioned above in paragraph 13.

Father’s proposal

148.  I would like to set down here F’s various proposals on access:

a. In the first SIR. He said if he is to be granted care and control, he would “allow” M a weekday access from after school to 8pm, and weekend from Friday after school until 7pm on Saturday. And “Believing that [M] all along lacked insights into her parenting methods, he hoped to reduce her access during long holidays” from equal sharing to only giving the M 30%.

b. In the updated SIR, he said he would “allow” M to have day access on a weekday, and alternate weekend access (week 1: Friday to Saturday and week 2: Saturday to Sunday); and 50% holiday access.

c. In F’s open proposal, He says M shall have access on Monday and Wednesday from 3:30 to 9pm “on condition that S would enrol into external homework tutorial class”; and staying access on alternate weekends (as b above) or alternatively 3:30 on Friday to 9pm on Sunday on a bi-weekly basis.

149.  I must admit that I am baffled by the F’s approach as recorded in the first SIR, it is as if M is to be deprived of spending holiday time with S because of F’s perceived views of M’s parenting methods; it is good to see that he no longer holds that view. Nor do I understand the rationale as to why in his open proposal he is placing a condition on M’s weekday access should he have care and control of S; this is a condition which has nothing to do S’s access with M, and sound more like a bargaining chip to give her access. As my decision is for M to have care and control, the argument on the necessity of F’s proposed condition is not a matter that needs to be addressed.

Mother’s proposal

150.  As for M:

a. Her proposal in the first SIR: one afterschool access during the week, and weekend staying access from Friday afterschool to Saturday evening. And equal share of holidays.

b. In the updated SIR, her proposal is along the lines of the interim care arrangement above mentioned; and for short holidays to lie where it falls in accordance with the current schedule.

c. As for her open proposals and submission, M is adopting the current arrangement except that she wishes to reduce the weekday access from two times (Tuesday and Wednesday) to once. This is due to the fact that S is moving up to secondary school in the coming year and there will be more homework to do. She also suggests the weekly therapy with AC should be reduced to once a month so as to allow S to focus on his studies.

151.  S now attends his session with AC every Tuesday afterschool, as F has access, he takes him there and then spend some time with him after until such time to return him to M’s residence. It is F’s contention that on these Tuesdays, he would only have around two hours with S.

152.  I do not intend to comment on how often S should be attending the sessions with AC, this is not the issue before me; and should be discussed between the parents and AC, considering S’s views.

153.  I agree with M that moving into secondary school will no doubt bring transition and more academic workload. I am also mindful there had been historical arguments as to S’s ability to finish all his homework when he was with his father, the reasons for which is not a subject matter which requires the court’s finding at this point. What I will say here is that if homework is not finished when S is with F, then this will no doubt causes S stress, delay his sleeping time, and may also lead to arguments between the parties which will no doubt affect S.

154.  I have considered and have decided not to make any changes to F’s access at this point of time. In the event that time spent with F results in further or on-going non-completion of homework, then the Court may be required to look at access arrangement with full evidence when appropriate application is made.

155.  Therefore with regard to access, the current interim Order shall be made into an Order proper.

156.  Furthermore, in referencing F’s open proposals with regard to holidays and special days, I make the following orders.

a. Long holidays (Christmas and New Year, Chinese New Year, Easter and Summer) shall be shared equally.

b. Single day school holiday or public holiday shall be shared on alternate year basis. The access shall be from 9pm the day before until 9pm on the day of the holiday.

c. For Father’s Day and F’s birthday, S shall spend time with F from 9am to 9pm.

d. For Mother’s Day and M’s birthday, S shall spend time with M from 9am to 9pm.

e. S shall be with F and M on his birthday on an alternate year basis with F having the odd years, and M having the even years.

157.  The parties are directed to enlist the assistance of the SWO if a parenting co-ordinator can be engaged to discuss the details with regard to holiday and special day arrangements. If parties decide to engage a private parenting co-ordinator, the costs of such parenting co-ordinator should be shared equally between the parties.

Costs

158.  M has asked for a Costs Order to be made, but this being a child matter, I will make the usual Order that there shall be no Order as to Costs.

Orders

159.  For the reasons aforesaid, I make the following Orders:

a. M shall have care and control of S.

b. Term time access with the F shall be as per the interim Order made on 14 December 2023.

c. Holiday access shall be as per paragraph 156 above.

d. There shall be no Order as to Costs, including all costs reserved, to be taxed if not agreed; with Certificate for Counsels. This to be a Costs Order nisi to be made absolute 21 days hereof.