GKLJ v. WE also known as WFYE

FCMC 16521 / 2015

[2022] HKFC 21

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 16521 OF 2015

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J U D G M E N T
(Variation of Care and control)

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Introduction

1.  I will refer to the Petitioner and the Respondent as the Father and Mother respectively.

2.  This is the trial of the Mother’s application for variation of care and control of her son (hereinafter called “J”), a child of the family, who is now 11.

Background

3.  The Father is now 55 and worked as a department head of a Bank. He was recently made redundant by the Bank. The Mother is now 46 and is a fulltime mother. She used to work in the financial industry. The Father filed the petition for divorce on 29 December 2015.

4.  On 14 March 2016, the Father and the Mother agreed joint custody of J be granted to the parties, and sole care and control to the Mother.

5.  In October 2017, there was a suspected child abuse by the Mother, as a public informant had informed J’s school that J had been crying frequently in the evenings after 6 pm (“2017 Incident”).  The Father on 24 October 2017 obtained an ex parte order restrained the Mother from assaulting, molesting, harassing, threatening, disturbing, approaching or contacting J. Temporary care and control of J was given to the Father with supervised access to the Mother.

6.  On 26 October 2017, Deputy District Judge David Cheung granted temporary defined access to the Mother.

7.  On 8 December 2017, the Social Welfare Department issued a letter stating that following the Multi-Disciplinary Case Conference on Protection of Child with Suspected Abuse held on 5 December 2017, it was found that there was no child abuse.

The current arrangements

8.  On 11 April 2018, by consent the Father and the Mother agreed to have shared care and control of J, in the following terms (“2018 Order”):

(a)  Spending Wednesday afternoon (or 5 pm if not a school day) until 9 am Sunday with the Father; and

(b)Spending Sunday 9 am to Wednesday morning (5 pm if not a school day) with the Mother.

The Mother’s open proposal

9.  The Mother’ stance changed after the filing of her Summons in March 2020 as follows:

	Mother’s Summons	Mother’s proposal at the PTR
During Term Time	Week 1 (paragraph 1(a) of the Mother’s Summons) One overnight stay with the Father on Thursday from 7:30pm to Friday morning, allowing the Father to take him to school on Friday.	J with the Father every Friday 6:30pm to Saturday 6:30pm.
	Week 2 (paragraph 1(b) of the Mother’s Summons) J will stay with the Father from Friday 7:30 to Monday morning, and allowing the Father to take him to school on Monday.
	The Mother also specified that for the periods: a. Beginning of November to the last school day of December b. Beginning of May to the last school day of June
	That the above Week 1 and Week 2 arrangements “ shall be dispensed with” and the Mother will “ compensate” the Father with the arrangement that he could spend time with J from Friday 7:30pm to Sunday 9am every week (paragraph 1(c) of the Mother’s Summons).
Term Breaks (October break, Christmas, CNY, Easter and Summer)	As above	Week 1 With the Father from Friday 6:30 pm – Saturday 6:30 pm Week 2 With the Father from Friday 6:30 pm – Sunday 6:30 pm

10.  It is apparent that the Mother’s proposal at the PTR further reduced the access time of the Father. In short, the Mother’s proposal would only allow the Father to have 24 hours’ access per week during term time, and only 3 nights over 2 weeks during J’s long holidays.

The Father’s open proposal

11.  The Father proposes the Mother to have care of J from afterschool to 6 pm on Wednesday, Thursday and Friday, when the Mother could supervise and do school work with J. The Mother is being asked to bring J to the Father at 6 pm, so the Father could continue to see J at dinner, follow up with his school work in the evening, and take him to the school bus on Thursdays and Fridays.

12.  The Father says the above open proposal was made after taking into consideration of the single joint expert (“SJE”)’s report and the Mother concerns over the Father’s way in supervising J’s homework.

The Mother’s Case

13.  The Father’s parental failings are the main ground for the Mother’s application to vary J’s present status quo.

14.  In the Mother’s 5^th affirmation filed on 13 March 2020, the Mother stated that J’s best interests were not being served at all by the current access arrangements and J continued to suffer the ill-effects.

15.  J’s school raised concern with J’s academic performance. In December 2020, J’s school notified the parents that although J was attending Primary 5, he was performing at Primary 3 level only.

16.  Upon the advice of J’s school, J had attended a psycho-educational assessment with Dr V on 5 March 2021. A report was issued on 2 April 2021 (“Dr V Report”).

17.  According to the Mother’s 8^th affirmation filed on 2 November 2021, J failed 3 out of 4 of his core subjects in Primary 5. J was given a “probational promotion” and had been requested to resit his Mathematics exam in August 2021. J managed to push his Mathematics grade up at the resit and J’s school agreed to promote him to Primary 6.

18.  On 24 November 2021, J’s school arranged a teacher-parent meeting. At the meeting, the school raised the issue that J may not be able to promote to Secondary School, and it is suggested that J is required to work on his mindset about study and improve his learning attitude.

19.  The Mother is concerned with J’s underperformance at school and his emotional needs. The Mother considers that the “root-problem” is the current access arrangement is not working for J. The Mother says as a full-time mother, she is fully available for J and is able to give consistent care and targeted support to J, while the Father’s time is then sold to his employer.

The Father’s Case

20.  The Father says the Mother has not collaborated positively for J’s best interest, and blames him for everything that is not going well with J.

21.  As seen from the 5^th Social Investigation Report dated 9 November 2020, J did not respond to the investigation officer over his divergent views on his care arrangement on 19 October 2020 and 30 October 2020.

22.  According to the 6^th Social Investigation Report dated 7 April 2021, the investigation officer recommended that the present shared care arrangement be maintained.

23.  The Father says J’s behaviour issues actually started as early as September 2015 including his regressive behaviour and raising his hand at schoolmates, this was even before the petition for divorce. Around the time, the parties were in constant arguments and the Mother took J away from home for a week in July 2015, it then happened even more in late November 2016, when J was in the Mother’s care, and the Father approached the school counsellor for help.

24.  The Father understands that the different approach to teaching J stems from the different parenting style.  But the Father maintains that J needs both parents in his life.

The Reports

25.  In total 5 reports have been filed in relation to this matter – three reports from the Social Welfare Officer, Ms T, dated 9 November 2020, 4 July 2021 and an updated report dated 15 October 2021(collectively the “SIRs”), Dr V’s report dated 2 April 2021 together with the single joint expert report from Dr C and her team dated 5 November 2021 (“SJE Report”).

26.  In this instance, I was greatly assisted by the reports and the oral evidence of Ms T and Dr C.  

27.  The SIRs largely support the Father to maintain the status quo of the present arrangements. Dr C recommended a slight adjustment to the current access arrangement. She suggested J to have an additional night of overnight access at the Mother’s place on Wednesday evening.

28.  The Father asks this court to adopt his proposal to have J to return to his place after 6 pm on Wednesday, so that the Mother could supervise J to do school work, while he could spend dinner time with J. The Mother on the other hand insists that the Father’s proposal is not working for J, and J should spend most of his time with her. By doing so, J could enjoy the consistent care and targeted support provided by her.

The law

29.  The general principles governing the custody or upbringing of a child have been set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says 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 views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

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

30.  In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. The checklist states that the following matters should 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 is relevant.”

31.  Although the above checklist has not yet been introduced in our legislation, the courts have found it helpful in considering the best interests of a child.

32.  I will also refer to the High Court decision in H v N (Children: Variation of Interim Order) [2012] 5 HKLRD 498. In that judgment Poon J (as he then was) held inter alia that:

(6) Access to a parent was a child’s basic right. Here, F would be granted weekend staying access. M’s objection was not objectively substantiated on the evidence. Further, Cs should not be deprived of the opportunity to live and share their time with F over weekends at this formative stage of their lives. (See paras.43-44.)

The issues

33.  The following issues now need to be determined:

(a)     What are the triggering events leading to this application?

(b)     Whether J’s academic underperformance and behavioural problems were caused by the current shared care arrangement?

(c)     Whether it is against J’s wishes to have overnight stay with the Father?

(d)     If not, what does the court consider to be in the best interests J?  

What are the triggering events leading to this application?

34.  It is a fact that J is not performing well at school and that J’s school raised their concern about J’s academic underperformance over the last few years. It however turns out to be the Mother’s case that J’s academic underperformance is as a result of the 2017 Incident, in which the Mother said she had no alternative but to reach an agreement with the Father on J’s shared-care arrangement in 2018.

35.  During examinations of the parties, it is the Mother’s case that the 2017 Incident was orchestrated by the Father to separate J from her. I find the Mother’s allegation is devoid of merit.

36.  The 2017 Incident arose as a result of the Father was being notified by a neighbour about J’s screaming and crying hysterically at the Mother’s place. Eventually, J’s school was also being notified of this matter. Save and except the Mother’s bare allegation that the Father planned the 2017 Incident, the Mother is unable to adduce any evidence to support her beliefs.

37.  As a result of this 2017 Incident, the parties reached the 2018 Order by Consent. The parties are all along legally represented. When the 2018 Order was made, the Mother was represented by an experienced senior counsel. It is hard to understand why she now complains the 2018 Consent Order was the Father’s strong-armed “offer” and she gave her consent with a heavy heart and against her better instinct. It seems that the Mother is still aggrieved about the 2017 Incident.

38.  While I accept that the 2017 Incident may have caused J to have emotional and stress issues, but I tend to think that the Mother has over-magnified the 2017 Incident which affected the well-being of J, which I do not agree.

39.  From the evidence before me, I am not satisfied that J’s academic underperformance is solely or mainly caused by the 2017 Incident and/or the 2018 Order.

Whether J’s academic underperformance and behavioural problems were caused by the current shared care arrangement?

The reasons for academic underperformance

40.  The Psycho Educational Report was called for on the suggestion of J’s school. In the report, Dr V made the following observations:

Diagnosis: (page 1)

… J’s key cognitive challenge is with visual-spatial processing, impacting his organisation, capacity to focus and executive functioning. J is also experiencing ongoing elevated anxiety and lowered self-concept after significant changes in his family situation. Both factors contribute to a lack of attention and focus. J’s symptoms are consistent with a twin diagnosis of Non-Verbal Learning Disorder (NVLD) and Adjustment Disorder with Mixed Disturbance of Emotions and Conduct….

Clinical Psychology: (page 30)

J’s intelligence is higher than his academic abilities. Given his cognitive skills, it appears that J will be able to meet expectations academically given the introduction or continuation of support per the Recommendations for Treatment/Intervention above.

41.  Further, on page 18 of Dr V’s report, it states:

J presents with moderately elevated levels of Anxiety on the BYI-2.  His self-report results in the Depression and Anger domains are also mildly elevated and his scores in the Self- Concept domain are lower than average.  J responded “sometimes” to the phrase “I wish I was dead”.

42.  I also find the following paragraphs from the SJE’s report provides a concise summary of the challenges faced by J over the years since his parents’ separation:

29. Review of J’s school reports since 2015 identifies that he has consistently exhibited some difficulties with attention and concentration since that time. Some early difficulties in Mathematics were first highlighted in the teacher narratives of Primary 1.

39. In April 2017 J underwent first psychological assessment, called for by the Court and conducted by Ms. C of the Social Welfare Department. The assessment comprised interviews with J, the Mother and the Father. Ms. C stated that both parents reported past emotional or behavioral concerns with J, yet not at that time. Both parents regarded the school counselor’s interventions effective in helping J. However, Ms. C noted that each parent’s understanding of J’s issues was very different and there was a strong sense of mistrust between the parents. Ms. C deemed that J did not exhibit any emotional or behavioral problems that warranted clinical attention at that time. She recommended that he continue to have regular twice-weekly counseling sessions.

40 In March 2018 J underwent second psychological assessment, by clinical psychologist Ms W of Social Welfare Department. Interviews were conducted and questionnaires administered, including to teachers. Ms. W deemed that there was no evidence of emotional disorder and that J’s self-esteem was at a high level. Nonetheless, she commented that he continued to struggle with the parental separation and wished the family could be reunited. She further noted that he continued to have clear loyalty conflicts resulting in fear and insecurity. Her recommendation was for parallel parenting with J to spend equal time at each parental home. Recommendations also included the appointment of a parenting mediator/coordinator.

85 Parenting coordinator Ms. Q is employed by the parents and both the Father and the Mother are agreeable for this to continue. The Father says that he is willing to compromise on the current access arrangements by extending J’s Wednesday access to include dinner with his mother. The Mother believes that she should have sole care and control with significantly less access to the Father than currently to allow her time to address J’s marked decline in academic performance.

165 J himself believes he has difficulties monitoring and inhibiting his own behaviors and impulses. At the time of test, he did not report any concerns with anxiety and/or low mood yet he perceives himself as exhibiting inadequate problem-solving strategies, lacking persistence and perseverance, and struggling to learn from his mistakes.

166 Furthermore, J feels he does not have adequate access to support and he does not appear to believe that there is someone (parent, friends, etc.) for him to turn to in the face adversity. He perceives himself to be more sensitive to emotional triggers than most other boys his age and he reports that it takes him more time to recover from negative events than his peers.

173 It could be argued that Home Based Learning (HBL) during the pandemic was a challenge that derailed the academic progress of many students, however J’s academic performance shows a clear pattern of consistent decline between 2017 and 2021.

174 The results of his previous cognitive testing indicate that he should have no difficulties accessing the curriculum. J is an intelligent and academically capable boy yet a lack of consistent and targeted parental support and emotional ill-health, possibly as a result of the breakdown of his family system, are likely to be the main barriers to his academic success.

43.  Both Dr V and Dr C said J is an intelligent boy and the domestic situation has an impact on J’s emotional behaviour.

44.  When giving evidence at trial, Dr C said J is academic capable and he is doing fine when compared to kids who attended public school in the US. J, however is attending an academically demanding and high achieving school; the same thing goes for J’s conduct as well. Dr C said J would be “probably an angel” if in a public school in the UK.

45.  Further, Dr C said there were many domains and functions which led to J’s academic failure, for example, attention control, family dynamics, emotional profile and brain maturation. In Dr C’s view, the shared-care arrangement is working well, one of the downside is just academically not working so well.

46.  In particular, the SIR dated 15 October 2021 states:

13. J was fully aware of the parental conflict in his care and control for the past years. He understood that his parents loved him very much while he also enjoyed staying with them. He missed them equally when they were absent. J considered that his mother was more thoughtful and creative when supervising him to do homework and arranging various activities for him. His father though a bit boring and reasoning in character, focused on his Mathematics revision eagerly in order to help him catch up and pass the make-up test. J revealed that he was very happy to overcome the test and to be promoted to Primary 6 with the efforts made by all of them. Despite that, J abruptly claimed that he preferred living with the mother and only having day access with the father every Saturday from 8 am to 3 pm without apparent reasons. With vague tone, he alleged that he seemed to have already informed the father of his change of view towards his care by the father to be replaced by day access but forgot about response of his father and when their dialogue took place. He then immediately jumped to another topic, asking for the undersigned’s permission to explore the toys at the interview room.

47.  In short, I do not accept the Mother’s case that J’s academic underperformance was caused by the Father’s inability to give him consistent care and targeted support. It is not objectively substantiated by any of the reports. As one can see from the observations of the reports, the family situation no doubt has significant impact on J, but J also faces challenges with his visual-spatial processing and/or other executive functions.

48.  I do not find that it is fair to suggest that J’s academic underperformance is caused by the current access arrangement. In fact, neither Dr C nor Ms T ever suggested that the current care and control arrangement is the cause or the root-cause of J’s academic underperformance.

J’s behavioural problems

49.  According to Dr V’s report, the school found that J did not seem to be bothered by instructions by teachers or friends, but he liked to get attention from peers during classwork. When J was anxious, he would put things in his mouth to bite. Further, when J was not given what he wanted, he would argue well to get his way.

50.  In Dr C’s views, J’s behavioural problems arise as a result of his academic underperformance. As mentioned above, there could be a number of reasons which caused J’s academic underperformance.

51.  Ms T said J is being placed into a loyalty conflict situation, which the Mother denies. Ms T said it would be helpful if the parents could set aside all the grudges in their marriage and engage in a partnership to look after J.

52.  It is apparent that Ms T, Dr V and Dr C observed that J is caught in the domestic situation and J is well aware of this too.

53.  The Mother heavily relied on the following paragraphs from the SJE’s report which states:

171 The Father’s data contain elevations across multiple response distortion indicies therefore, it is difficult to get a clear picture of his actual daily involvement with J. Multiple sources throughout the evaluation process suggested that J is regularly left in the care of the Father’s domestic helper while he stays late at work. Although literally thousands of working parents across Hong Kong are reliant on domestic helpers for childcare, in light of his emotional and academic concerns, J is likely to benefit from increasing the consistency and academic support he receives while in his mother’s care.

172 Another point of concern is the Father’s unwillingness to acknowledge the rather serious academic and behavioral issues clearly reflected in J’s mother’s, teachers and self-report data. J’s school is an academically rigorous institution and academic failure is a major cause of low self-concept in students. In turn, having a low self-concept and a negative perception of one’s abilities often fuels the development of a variety of emotional and behavioral issues similar to those J is now manifesting.

54.  The Mother complains that the Father is not sensitive to J’s needs and he does not recognize the seriousness of J’s behavioural issues. Further, the Father was not available to J.

55.  The Motheralso relies on Dr V’s report to support her complains against the Father. The Mother says she has followed most of Dr V’s recommendations to assist J, but she does not see the reason for J to receive psychotherapy sessions.

56.  The Father recognizes J has behavioural issues, yet from his point of view he does not agree that J’s problem is that serious. Dr C is of the view that the Father tends to minimize difficulties, and there could be a number of reasons, which include:

(1) the Father may be a super tough person; or

(2) he was in corporate setting for a long time, hence he   could well adjusted to situations; or

(3) lack of insights.

57.  In my view, it is merely an example of different personality and parenting skills.  None of the reports suggested that J’s behavioral problems are caused by the Father nor the current care and control arrangement.

58.  It is pertinent for me to point out that according to the SIR dated April 2021, Ms. T had the following observations:

14. It is important to note that academic pursuit is not the only indicator to reflect the care quality of parents.  Instead, the parent-child relationship and commitment of parents in discharging the care responsibility are of paramount importance to nurture J and to foster his healthy development for achievement of his development tasks. Both the Father and the Mother are dedicated to attend to J’s needs and have discharged their parental roles properly. J has been nurtured to be a pleasant, positive, friendly, healthy and creative young boy while parent-child relationship is intimate.

15. The stability and continuity of the present care arrangement in two homes has been carried out smoothly for three years. Upsetting this equilibrium will bring distress to J which may affect his overall development. Entering to early adolescence, J is going to strive for independence, autonomy and self-identification. Both parents play a very significant role in the child’s development. The existing supplementary parenting style and regular intimate parent-child interaction with role-modelling effect are advantageous for J to go through this developmental stage and become a promising youngster in the time to come.  Having regard to the present satisfactory care arrangement and crucial developmental stage of the child entering to puberty, maintaining the status quo can apparently safeguard the best interest of the child.  

59.  In the SIR dated 15 October 2021, Ms T said inter alia as follows:

14. During the present adjournment, J maintains residing with his parents at two homes with equal parental care and time on him. He is healthy, pleasant, creative and friendly, attending school regularly and having intimate parent-child relationship. The assessment conducted by the Educational Psychologist has indicated that J is a gifted adolescent exhibiting emotional problem and learning difficulties with recommendations given to the parents who have to take extra time, patience and their joint efforts in helping J. Apparently, prolonged family distress and parental conflict are contributory to the emotional unrest of J who has all along been torn between the parents. With their love, commitment, educational background and abundant resources, the parents, definitely are capable of tackling the distress/anxiety of J encountered given that they can be a halt to their unresolved conflict. The present shared care and control arrangement of J has proven to be feasible and effective to allow him to maintain good attachment with the parents which is prerequisite for his accomplishment of the upcoming development tasks of adolescence, i.e. striving for autonomy & emotional independence from parents; having identification with their peers; and achieving masculine social role. With absence of sufficient justifications warranting alteration of the present care arrangement, upsetting the equilibrium of care will inevitably intensify the stress/tension encountered by the child and jeopardize his well-being. Hence, the mother’s request for the variation of care and control of J will pose risk to the overall development of the child and is not of his benefit in long run. Concerted efforts in co-parenting is definitely crucial for the parents to bring up J who will accomplish his developmental tasks to become a socially responsible person to face the life challenge in future.

60.  The effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. I agree with both Ms T and Dr C observations that there are a number of factors which caused J’s academic underperformance. J’s academic underperformance becomes one of the factors which affected J’s behavior. The other factor is the parents’ on-going conflict which caused J to have loyalty conflict and anxiety.

Caring ability/time of the Father

61.  It is the Mother’s case that the Father is busy at work and is constantly returned home lately due to his job commitment, so that J does not get consistent care and targeted support from him.

62.  In response to the Mother’s allegation, the Father denies that he is always late to return home. The Father admits that he would have conference calls when J stayed with him, but he did supervise J to do his school works. The Father also refers to the emails which he sent to the Mother to report on the progress of J’s school work.

63.  There is no need for me to go through each and every allegation of the Mother and the reply of the Father in this judgment. Suffice it to say that I have considered all evidence and observe the demeanour of the witnesses while in the witness box, I am of the view that the Father is a caring and loving parent who has taken care of J appropriately and sufficiently.  The Father has demonstrated that he is aware of the strengths and weakness of J’s cognitive skills. He has worked hard to assist J to pass the mathematics re-sit exam and his Chinese test in December 2021.

64.  It is further my view that had the Father really paid such little time and care to J, the father-child relationship would not have been, per observed and described by Ms T, as happy, intimate and spontaneous.

Communication between the parties

65.  In this trial, there is an extensive cross examination of both parties on various emails covering a number of topics concerning J. The Mother uses these emails to show that there is a lack of communication and trust on the part of the Father. On the other hand, the Father uses the emails as proof that the Mother lacks of response to J’s school work and made unnecessary allegations through her solicitors.

66.  For the purpose of this judgment, I do not propose to repeat verbatim each and every email written between them or each and every incident that was mentioned in the trial. Suffice it to say that I have considered all of them. I will simply set out a few examples as follows:

(1) Obstruct J to call the Mother

The Mother complains that the Father has locked up the telephone when J stayed with him. The Father, on other hand, explains that he does not know how to lock up the land line and he denies he ever obstruct J from calling the Mother.

(2) Refuse to attempt mediation

The Mother wanted to attempt mediation to resolve the variation of care and control of J. The Father said the Mother could have written emails to him to voice her concerns, however the Mother chose to instruct her lawyers to issue legal correspondences to set out each and every of her allegations.

(3) Arrange psychotherapy sessions to help J to adjust to the domestic situation as per Dr V’s recommendation

The Mother’s finds it unnecessary for J to attend psychotherapy sessions, while the Father would like to engage a psychotherapist to help J.

(4) Grazes on J’s arm and leg on 1 May 2020

The Mother through her solicitors alleged that the Father caused a graze on J’s arm by pulling J when he was on the phone with the Mother. The Father explained that he and J went to Sai Kung for hiking on 1 May 2020. Both he and J felt off and got grazes to their skin. The Father referred to an email from the Mother to show that she was fully aware of the hiking accident but nonetheless instructed her lawyers to issue a letter dated 6 May 2020 to make false allegations against him.

67.  It is a usual phenomenon that separated parents, distressed by the breakdown of their relationship, will face some kind of communication and/or trust problems of varying degrees and the parents of this case are of no exception. 

68.  As such, the mere allegation of difficulty in communication and/or trust is not by itself sufficient to persuade the court in not continuing a shared care arrangement if it is in the best interest of the child. This is in particularly so when the shared care order has already been put in place by consent pursuant to the 2018 Order. 

69.  The Mother is concerned about the Father’s ability to provide targeted support to J.  As Dr C explained, it is a learning process for parents to develop parenting skills. While Dr C acknowledged that the Mother’s approach is exactly what J needs now, and the Father’s approach will be what J need in the future, she holds that the view it is quite complimentary.

70.  From Dr C’s perspective, the Father is trying his best to understand the strengths and weakness of J, but J possibly needs what is more than giving right now.  She further said the Father is a bright man, if he is given a chance to learn, he would be capable to attune to the needs of J.

71.  I accept that the Father did make adjustment to his parenting style after Dr V and Dr C’s reports. At the trial, the Father was able to give detailed particulars on how he assisted J to get through the mathematics re-sit and he had identified J’s strengths and weakness in approaching questions.

72.  I am not convinced that the Father and J should only have 24 hours or 1 day access each week during term time, as this would deprive the opportunity of the Father and J to learn and grow together. If the court adopted the Mother’s proposal, the court is not only in effect undermining the Father’s effort in becoming a better-father but also take away a father figure to support him in his upcoming puberty years. 

The character of the parents

73.  When considering matters of this nature the court is charged with considering the character of both parties in the witness box.

The Mother

74.  From my perspective the Mother came across as being a bright and capable woman. I have no doubt that she is a very good mother and that she loves J dearly.  She hopes that J could see his Father as a role model. But the Mother was evasive when she was cross examined on the 2017 Incident, the need for J to attend weekly psychotherapy sessions and the alleged problems with the current shared care arrangements.

The Father

75.  The Father appeared to be a bright and articulate person. I accept that he is also a very good father to J and that he has a close and loving relationship with him which must be fully maintained. Generally, I found the Father to be a straightforward, honest and credible witness.

The ascertainable wishes and feelings of the child concerned considered in the light of her age and understanding

76.  As said, J is now 11 years old.  J told Ms T that he loved both his parents and could feel their love and concern. From all SIRs, SJE Report, Dr V report and from all accounts, J is capable of understanding that there are disputes and conflict between his parents. Both Ms T and Dr C confirmed that J was very reluctant to express a preference.

77.  Dr C and her team reported as follows:

Views of the Child

19. J informed the examiner that both his mother and father are good parents. He was clearly very reluctant to express a preference and he often made references to living “off in space” when projective tests were used to assess any possible unconscious preference. He offered answers freely when questioned about the time he spends at his mother’s home yet was very circumspect regarding his access time at the paternal home. Once he had been reassured that his comments would not appear in the written report J was a little more forthcoming during his clinical interview.

78.  According to the Perception-of-Relationships-Test (PORT) done by Dr C and her team, J’s responses indicated that he unconsciously prefers his mother over his father, but he indicated similar preference for both parents in two situations. A point to note is that Dr C said J was alert to the purpose of PORT test is to find out his preference.

79.  At the trial, the Mother’s counsel referred to the emails sent by J to his teachers saying that he felt bored at the Father’s home and he missed the Mother very much.

80.  Ms T said J did mention to her that when he stayed at the Father’s place he missed the Mother, and when he stayed at the Mother’s place, he missed the Father.

81.  Ms T further explained that while it is true that J did express that he felt bored when he staying at the Father’s place, but he did not say that he dislikes the Father. J enjoyed his time with both parents and felt happy to be with them.

82.  The Mother also refers to the fact that J did mention to Ms T on 19 October 2020 and in April 2021 that he would only like to have access with the Father on every Saturday from 8 am to 3 pm.

83.  Ms T said when she met J for an individual interview on 30 October 2020, J told Ms T that he hoped to maintain living at two homes equally and did not want to have any change on the present care arrangement.

84.  Later, when Ms T prepared for 7 April 2021 SIR report, J told Ms T that he hoped to live with the Mother and to have day access with the Father every Saturday from 8 am to 3 pm only without giving any apparent reason. J said he would inform the Father about his view, but up till the submission of the SIR report, J had not told the Father about this view over the change of care arrangement.

85.  Although J has made his view to have day access with the Father only on Saturday known to Ms T, J however was not able to elaborate the reasoning behind his view. J is an intelligent child, it is certainly not difficult for him to elaborate a bit more of his view.

86.  I have no difficulty in finding that J has been caught in loyalty conflict. It is a child’s right to see and have a relationship with both of his parents. This case should not be the exception to the rule.

The child’s physical, emotional and educational needs

87.  I accept that J’s physical, emotional and educational needs can be met by both parents. However, in order for this to be optimal both parties should follow and adopt the recommendations made in Dr C’s report.

The nature of the relationship of the child with each of the child’s parents and with other persons

88.  I accept that J has a good relationship with both of his parents, but that he may have more of a natural affinity with the Mother at this stage of his development.

The likely effect on the child of any change in the child’s circumstances

89.  I find paragraphs 13 (vii) and (viii) of the Father’s counsel closing submissions provide a more accurate summary of Dr C’s response to the parties’ open proposal:

vii.  Mother has suggested to Dr C her open proposal, while Dr C said this could be “workable”, she elaborated to say that she has thought about this carefully, and weighted this before making her proposal … “and on one hand, there is a need for consistency in the light of the difficulties, but also need time for Father to learn parenting skills, so when J needs Father, he is not flaring in the wind”, and added “We need to give both parents opportunities”.  She further explained (at Father’s cross) that J will in 2-3 years require a different level of care, and there is a “need to promote relationship and bond with the father” so Js’ both short term and long-term care is lined up.  She also commented that the parenting styles are different, and that they are complementary, Father’s style would be perfect as J move into his teens.   The Court would remember Dr C using the analogy of putting up scaffolding to support J, and Father has a big part in this.   Dr C appeared confident that Father could pick up the required skills competently;

viii. When putting the Father’s latest proposal to her, she said it is an ideal and fair arrangement;

90.  I agree that J has consistency care now and in the past 3 years, there is a regular pattern in J’s life to see both of his parents on a regular basis. The Father must continue to be in J’s life substantially and consistently so that he can assist him in his puberty.

91.  The order that I intend to make should have very little impact on J, given that it is only an extension of the time he is already having with the Mother.

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

92.  I accept that notwithstanding the relationship between the parents themselves, that each are good and loving parents who ultimately only want what is best for their children. 

Any harm which the child has suffered or is at risk of suffering

93.  It is clear that J is suffering as a result of the present situation. Again I refer the parents to Dr C’s recommendations in that respect.

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

94.  I accept that both parents are capable of meeting J’s needs. I also accept that they each have their own strengths and weaknesses.

What should be the practical arrangements for J’s care going forward?

95.  Having given careful consideration to all of the above, I accept the Father’s proposal that the same shared care and control arrangement under the 2018 Order should in general remain unchanged, save and except that the Mother is to have care of J from afterschool to 6pm on Wednesday, Thursday and Friday.

96.  Since March 2016 J has undergone 11 investigations, this should be stopped.

97.  I very much hope that the parties will now be able to put some of the more negative aspects of this case behind them and move forward in a more positive and constructive way that can only be of benefit to J.

98.  It is clear that neither parties appears to have any form of functioning co-parenting relationship and that they have not developed the necessary strategies in order to be able to deal with each other on a day to day basis.

99.  There also seems to be some underlying emotional baggage that affects their ability to interact with each other. Thus, I agree with Dr C that they will need assistance going forward in obtaining appropriate family therapeutic support for themselves.

Other orders/directions

100.  It is further directed and/or ordered that the parties shall continue to appoint a Parenting Coordinator to assist them with carrying out of the terms of this judgment/order;

Costs

101.  Given that this is a child matter, I shall make the usual order that there will be no order as to costs of the Mother’s application, including all costs reserved. This is an order nisi to be made absolute in 14 days’ time. I thank both counsel for their assistance in this matter.