WKW v. OS

FCMC 6992/2020

[2021] HKFC 98

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6992 OF 2020

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J U D G M E N T

( Care and control,access arrangement )

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1.  This is the trial for the issue of care and control and access of the Son (now 8 years old) and the Daughter (now 3 years old) (collectively the Children).

2.  The parties have reached agreement that (i) joint custody of the Son and the Daughter be granted to them; and (ii) the petitioner (“Mother”) to have the care and control of the Daughter. Hence, the remaining issues to be determined by this Court are (a) care and control of the Son; (b) access arrangement of the Children for the non-custodial parent.

Background

3.  The Mother and the respondent (“Father”) were married on 10 January 2012 in Hong Kong. The Children were all born in Hong Kong. The Father (now aged 43 years) is a full-time stay-home dad whereas the Mother (now aged 40 years) is a self-employed doctor (specialist in Obstetrics & Gynaecology). After the separation of the parties in about mid-2018, the Son has resided with the Father and the Father’s mother (“Paternal Grandmother”) at the former matrimonial home whereas the Daughter has resided with the Mother at the Mother’s rented place.

4.  The Paternal Grandmother who is now 68 years old and all along assists the Father to look after the Son.

5.  Apart from this application for the Children’s matters, the parties and the Paternal Grandmother are disputing the beneficial ownerships of 3 properties as follows:

 i.  The Mother issued a section 17 application relating to the sale proceeds of a property in Richmake registered in the joint name of the Father and the Paternal Grandmother which was sold in 2018.  Half of its sale proceeds are now kept by a law firm as stakeholder pursuant to the consent order dated 24 August 2018;

 ii.  In March 2019, the Paternal Grandmother commenced an action in the Court of First Instance against the Mother relating to the ownership of another property (i.e. the former matrimonial home together with a car park in Bel-Air) registered in the sole name of the Mother;

 iii.  In October 2020, the Mother issued another section 17 application relating to the sale proceeds of another car park in Bel-Air which the Father claims that the money and the car park belong to the Paternal Grandmother.

6.  All these disputes are still on-going and in view of the complexity, they are unlikely to be resolved within a short period of time.

7.  The present interim access arrangement of the Children is governed by the Order dated 3 July 2019 under FCMC 10271/2018 as follows:

(a)  The Mother to have staying access to the Son on alternate weeks from Friday after school to Monday morning;

(b)  In the week when the Mother is not having staying access to the Son, the Mother is to have access to the Son from Friday after school to 8:30 pm on the same day and from 10:00 am to 2:00 pm on Sunday;

(c)  In the week when the Mother is having staying access to the Son, the Father is to have access to the Daughter from 2:00 pm to 6:00 pm on Saturday at any place other than the former matrimonial home and without presence of the Paternal Grandmother;

(d)  In the week when the Mother is not having staying access to the Son, the Father is to have access to the Daughter during 3:30 pm to 5:30 pm on Sunday at any place other than the former matrimonial home and without presence of the Paternal Grandmother; and

(e)  The Father is to have access to the Daughter from 10:00 am to 12:00 noon every Tuesday and Thursday at any place other than the former matrimonial home and without presence of the Paternal Grandmother.

8.  Pursuant to the Order dated 15 July 2020 under FCMC 10271/2018, leave be granted to the Mother to issue a fresh divorce petition on the ground of one-year separation with the consent of the Father. The Mother issued a fresh petition on 6 August 2020 under the present proceedings.

9.  The following 4 reports (“4 Reports”) are called for by the court:

i.  Clinical Psychologist Report by Dr Poon Wai-ling Maggie (“Dr Poon”) dated 28 June 2019 (“1^st CP Report”);

ii.  Social Investigation Report by Social Work Officer, Miss Lo Ying-gi (“Miss Lo”) dated 28 June 2019 (“1^st SIR”);

iii.  Clinical Psychologist Report by Ms Lam Siu-Ngar (“Ms Lam”) dated 17 December 2020 (“2^nd CP Report”);

iv.  Updated Social Investigation Report by Miss Lo dated 30 December 2020 (“2^nd SIR”).

10.  According to the 1^st CP Report, the brief comments of Dr Poon are set out as follows:

 i.   The Son demonstrates early sign of resistance toward the Mother in front of others, yet he acted very affectionately towards the Mother.

 ii.   If the influence existing in the external living environment subsists, the Son may develop a consolidated negative perception toward the Mother.

 iii.   The Mother was recommended to have equal share of parenting time for the Son.

 iv.   In order to avoid complicating the conflicts between the Mother and the Paternal Grandmother, the Father shall not bring the Daughter to see the Paternal Grandmother.

11.  According to 1^st SIR, the brief observations of Miss Lo are summarised that:

 i.  Both the Father and the Mother were impressed to be responsible and caring parents.

 ii.  The Son has been prone to stress for the conflicts between the Paternal Grandmother and the Mother and the separation of the parents. The Son has been affected by the adults’ conflicts.

 iii.  The Mother enjoys time flexibility in work and is capable of attending the Daughter’s needs. She is supported by assistance in the child care.

 iv.  The parents were caring and capable of taking good care of the Children.

 v.   Split caring arrangement of the Children be implemented gradually with more day and night access for the Son and more day access for the Daughter and be transited to shared care.

 vi.  Father’s staying access to the Daughter was not desirable as the Daughter needs a stable care pattern.

 vii.  The Paternal Grandmother is urged to respect the parents’ boundary.

12.  In the 2^nd CP Report, Ms Lam briefly commented that:

 i.  The Son expressed negative views of the Mother and such views are significantly disproportionate to his actual experience.

 ii.  There is evidence to suggest the Son was exposed to direct influence from the Paternal Grandmother affecting his views on the Mother. It is uncertain if it is stopped.

 iii.  There is evidence to suggest that there the paternal family's attitudes and feelings towards the Mother have an implicit influence on the Son's preferring the Father and rejecting the Mother; the Son is smart enough to feel and sense the underlying messages that his paternal family holds towards the Mother.

 iv.  There is evidence from the present assessment findings that the Son's unrealistic negative views of the Mother are related to the paternal family's implicit influence on the Son.

 v.   Both parents are capable of taking care of the Children and the Son has a close emotional bond with the Father.

13.  In the 2^nd SIR, Miss Lo observed that the Son’s bonding with the Father was undeniable strong and recommended that the Father to have the care and control of the Son.

14.  Dr Poon is no longer available due to her retirement whereas Ms Lam and Miss Lo attended the trial and gave oral evidence.

Applicable Legal Principles

15.  Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap.192 provides :-

“(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 –

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

(b)   ......”

16.  Section 48C of the Matrimonial Causes Ordinance, Cap.179 provides :-

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

17.  The general principles under Section 3 of the Guardianship of Minors Ordinance, Cap. 13 include :-

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

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

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

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

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

(ii) shall not take into account whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father…” (emphasis added)

18.  Besides, the following “welfare checklist” referred to in the English Children Act 1989 and in the recommendations of the Hong Kong Law Reform Commission’s Report on Custody and Access (March 2005) is also relevant:

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

(b)   his physical, emotional and educational needs;

(c)   the nature of his relationship with each parents and other persons;

(d)   the likely effect on him of any change in his circumstances;

(e)   his age, sex, background and any characteristics of his 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 he 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 his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)   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 regular basis;

(k)   the range of powers available to the court in the proceedings in question;

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

The Mother’s case

19.  The Mother contends that she is more suited to have the care and control of the Son:

a.  She enjoys great flexibility in her time schedule as a working woman.  The Son will be properly and adequately cared by the Mother, like the Daughter;

b.  The Son will be able to live with the Daughter;

c.  The Son will not be hindered by the Mother to develop a healthy relationship with the Father;

d.  The Son will be freed from the long exposure of negative influence of the Paternal Grandmother, undermining his relationship with the Mother.

20.  The Mother further says that it is against the Son’s best interest to continue the present arrangement:

a.  The Son will continue to be exposed to the negative influence of the Paternal Grandmother and the Father undermining his relationship with the Mother.

b.  The Father and the Paternal Grandmother are inseparable financially. The presence of the Paternal Grandmother will directly and indirectly influence the Son’s view and relationship with Mother in a negative way.

c.  The financial reality faced by the Father means that he will have to work a full-time job. It means that the Son will not be cared by the Father with the same level of availability.

d.  If the Father is to resume full-time working, he will rely on the Paternal Grandmother even more to take care of the Son, making the Son even more susceptible to the influence of the Paternal Grandmother.

e.  The Father seems to turn a blind eye to the relationship of the Son and Mother. The Father cares only about schoolings and other aspects but ignores this very important part of the Son’s life.

The Father’s case

21.  The Father says that he has been the main carer of the Son up to present and has been actively involved in the Son’s upbringing all along.  He has provided good care and control of the Son.

22.  The Son also shows clear and strong preference to continue to be under the care and control of the Father. The Son is intelligent, smart and mature enough to understand and express his wish on how he would like to live in the future and with whom. 

23.  The Father is of the firm view that preserving the status quo about the care and control of the Son is in the best interest of the Son. Any drastic change at this stage would likely cause negative influence on his development.

24.  The Paternal Grandmother has shown her commitment for refraining from, inter alia, doing anything which may alienate the relationship between the Mother and the Children, by giving the written undertakings to this Court.  The Father also gives similar written undertakings.

Influence of the Paternal Grandmother on the Son

25.  As stated in the 1^st CP Report, the Father regarded the dissolution of his marriage was due to the conflicts between the Paternal Grandmother and the Mother.  Hence, I think that one of the main disputes in this case is the influence of the Paternal Grandmother on the Son. 

26.  Dr Poon stated in the 1^st CP Report:

“7.3 (the Son) demonstrates early signs of resistance toward the Mother. He did not call Ms. Wong as 'mother' in front of others (e.g. the psychologist, the Father and PGM[1]). Only when he is being with the Mother alone that he feels free to address her as mother. His actual behavior toward the Mother in the interaction session belied his negative verbal comments about her in my interview with him. He acted very affectionately toward the Mother in the interaction session. He was responsive to the Mother's suggestions, he complied with her instructions, and he sought physical closeness to her even when the Father was there in the joint parents' interaction session.

7.4 (the Son)'s reasons for his dislike of going to the Mother's home are trivial (e.g. small apartment, no park). He seems to give random answers to my question. It may be that (the Son) learns not to provoke PGM by not mentioning about the Mother He may also learn to say or does things that please PGM (e.g. eat food made by PGM after visitation). Given PGM has difficulty to contain her anger and grievances toward the Mother even in front of me (an evaluator), it is possible that she may display much more intense antagonism toward Ms. Wong at home

…

7.6 As of to date, (the Son) does not show genuine rejection of the Mother. According to literature and my clinical experience, whether a child would become completely rejecting of a parent depends on the child's developmental age. It is not likely to see a child younger than 7- or 8-year-old to hold a consolidated rejecting attitude toward a parent if the child has a positive relationship with that parent before. Because a young child will easily let go of his / her dislike toward the rejected parent if that parent has had a good relationship with him/ her before. This is evidenced in (the Son). (The Son) refrained from talking about the Mother in interview. He could only give vague reasons to support his dislike for the Mother's home, but he failed to provide concrete examples about the Mother's actual bad behavior. When (the Son) sees the Mother and spends time with her, he seeks close to her. This suggests that (the Son) 's resistance toward the Mother is only superficial, which is probably a way to cope with external living environment. In spite of this, we should note that if a child is constantly exposed to depreciation of a parent from his / her significant others, and at the same time the child has limited time to spend with that parent, the child may not be able to correct of his/ her misperception about that parent. As time goes by, the child may develop a consolidated negative perception toward that devalued parent and may become genuinely rejecting of that parent.”

27.  Ms Lam also said in the 2^nd CP Report that:

“In sum, (the Son) expressed negative views of his mother and such views are significantly disproportionate to actual experience.”

28.  Mr Chan for the Mother submitted that the Son is exposed to influence of the Paternal Grandmother which undermines the Son’s view and relationship towards Mother and that it is of grave harm to expose the Son to such toxic environment which may cause the Son to develop a consolidated negative perception towards the Mother.

29.  Mr Chan for the Mother cited C v S [2021] HKCFI 278, a recent judgment by B Chu J dated 3 February 2021. The legal principles are succinctly set out in paras. 61 to 66 of her judgment. In particular,

a.  Her Ladyship quoted the definition of alienation used in Re S (Paternal Alienation: Cult) [2020] EWCA Civ 568 – see para. 61 of C v S:

“8 ..… For working purposes, the CAFCASS definition of alienation is sufficient:

‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’

To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate.  It is the process that matters, not the motive.”

b.  Her Ladyship also relied on paras. 9 to 13 of Re S and summarised in para 64 of C v S:

(1)  Where a child's relationship with one parent is not working for no apparent good reason, signs of alienation may be found on the part of the other parent….(para 9);

(2)  Where a process of alienation is found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child's welfare, and not merely those that concern the relationship that may be under threat….(para 10);

(3)  Whilst a change in the child's main home is a highly significant alteration in that child's circumstances, such a change is not regarded as "a last resort” …..The judge must consider all the circumstances and choose the best welfare solution ( para 10);

(4)  Cases at the upper end of the spectrum of alienation place exceptional demands on the court.  It will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become…. (para 11);

(5)  Unhappily, reported decisions in this area tend to take the form of a post mortem examination of a lost parental relationship…. (para 12);

(6)  In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term….(para 13). (emphasis added)

30.  To start with, the Paternal Grandmother denied that she had exerted any negative influence on the Son so as to undermine his relationship with the Mother.  Besides, the Mother did not adduce any direct evidence as to such negative influence by the Paternal Grandmother but mainly relied on the comments and observations as stated in the 4 Reports.

31.  Mr Chan for the Mother submitted that the Paternal Grandmother plays a substantial role in the Son’s daily life.

32.  The Paternal Grandmother said that her involvements in the Son’s daily living were preparing breakfast and dinner for him (as well as the Father). The three of them would have breakfast and dinner together. She also confirmed that the main responsibility of teaching the Son was taken up by the Father, though she would also tell the Son stories about history and calligraphy.  She also owns an art gallery and has to manage her business of selling painting and calligraphy in most of her time.  I accept her evidence in this regard and find that although she maintains a very close and good relationship with the Son, her involvement in the care arrangement of the Son is rather limited.

33.  Mr Chan for the Mother also submitted thatthe Paternal Grandmother hates the Mother to a great extent.  As stated in the 2^nd CP Report, the Son said to Ms Lam that the Paternal Grandmother only told the Son that the Paternal Grandmother does not like (rather than hates) the Mother.

34.  The Paternal Grandmother frankly admitted under cross-examination that she did not like the Mother and said that the audio recordings produced by the Mother were the secret recording of conversations between her and the Mother.

35.  Solely relying on what was heard from the audio recordings, I accept that the Paternal Grandmother was extremely rude and out of control at that moment.  However, as the conversations in the recording took place on 10 October 2017 before the Mother moved out of the former matrimonial home (more than 3 years ago), I do not consider much weight to be attached on this piece of evidence.

36.  No doubt due to the subsisting disputes relating to the 3 properties between the parties and the Paternal Grandmother, it is unrealistic to expect that the Paternal Grandmother’s dislike towards the Mother would lessen in the near future. Nonetheless, I still do not think that there is sufficient evidence to show that the Paternal Grandmother hates the Mother to a great extent as submitted by Mr Chan.

37.  Turning back to the comments and observations in the 4 Reports concerning the Paternal Grandmother’s influence on the Son, I do not see any reason not to accept them.  For instance, Ms Lam said in the 2^nd CP Report that there is some evidence to suggest that the Son had some direct exposure to the Paternal Grandmother’s negative comments (bad-mouth) on the Mother in the past.  Having carefully considered the 4 Reports and other relevant evidence, including the oral testimonies of the parties and the Paternal Grandmother, I find that the Paternal Grandmother do have negative influence on the Son.

38.  Having said that, I think that the Paternal Grandmother’s negative influence is not strictly equivalent to the parental alienation simply because she is not a parent of the Son although I accept that their relationship is very close.  Ms Lam, in her oral evidence, explicitly refused to use “alienation” to describe the influences by the Father and the Paternal Grandmother as suggested by Mr Chan for the Mother. She repeated her observation in her report that the Son’s preference for Father is partly related to his concerns for the Father and his wishes for him to be happy.  As per Ms Lam’s opinion, in general, a child can focus more on their own development if adults can contain and regulate their emotions better so that the child would not have to worry about the adults.

39.  Mr Chan also submitted that the Father has all along been financial reliance on the Paternal Grandmother, which I agree.  The Father admitted that he would not live apart from the Paternal Grandmother.  Mr Chan therefore said that the Father would not dare to control the Paternal Grandmother when she loses her temper.  That may be the case.  However, in my view, the real question is the extent of the Paternal Grandmother’s negative influence on the Son.

40.  There is not much evidence before me as to this question.  It may somehow depend on the intimacy of the relationship between them.  Certainly, my finding that her involvement in the care arrangement of the Son is rather limited will affect the answer to this question, too.

41.  The characteristic or personality of the Son may have to be considered.  I note from para 6.11 of the 1^st CP Report, which states that:

“… (The Paternal Grandmother) asked (the Son) to tidy up the toys that he had used before settling down to playing chess with her. (The Son) did not listen. …”

42.  It shows that sometimes, the Son may not follow the reasonable request made by the Paternal Grandmother in front of the other people, like the Father and Dr Poon.  The Son may have his own idea or reason for not complying with the Paternal Grandmother’s request, even if such request may be considered as reasonable.  In other words, it is one of the examples that the Son was not always influenced by the Paternal Grandmother.

43.  It is also noteworthy from para 9.1.8.6 of the 2^nd CP Report that “..while there is evidence to suggest that the Son was exposed to direct influence from the Paternal Grandmother affecting his views on the Mother, it is uncertain whether this has stopped or not but it appeared that the situation has improved since the last psychological evaluation.”

44.  Also in para 10.1 of the 2^nd CP Report, it stated “ …There is evidence to suggest that the Paternal Grandmother is now more aware of her own role and her boundary; hence becoming cautious not to speak negatively of the Mother…” and similar comments were made in para 11.4 of the 2^nd CP Report.

45.  I accept the above observations of Ms Lam and consider that the extent of the Paternal Grandmother’s negative influence on the Son may be high in the past, but as she is more aware of her role and boundary, such influence presently becomes insignificant or diminished.

46.  I further accept the written undertakings by the Paternal Grandmother not to alienate the relationship between the Mother and the Son.  I come to the conclusion that the situation has improved and will further improve in the future as observed by Ms Lam in the 2^nd CP Report.

Influence of the Father on the Son

47.  It is the Mother’s case that the Father explicitly and implicitly influences the Son and Father’s influence undermines the Son’s view and relationship with the Mother.

48.  Mr Chan for the Mother relied on the following paras. in the 2^nd CP Report:

“8.4.3.5. There was another incident that occurred during the father-son interaction that raised the questions as to how much of the father is really receptive to (the Son)'s choices. (The Son) was very proud of the paper tower he made with his mother. He was eager to show this to his father and he wanted to take it home to show it to his paternal grandmother (which is usual for children his age to share his delight with his closed ones). I asked if he wanted to take it home, (the Son) did not answer and he was watchful of his father's reaction, observing his facial expressions closely. His father did not give a clear yes or no. (The Son) then told me he will not take it home. In the post father-son observation meeting (the Son) confirmed again that he wanted to take it home to show it to his paternal grandmother yet he said that he decided not to because his father did not make a decision. From this incident, it appeared that when the father does not give a clear yes, (the Son) tended not to take action. Perhaps the father's decision is very important to (the Son); and hence the father is influential in this way.

…

8.4.3.4 During the discussion task, the father asked open-ended questions to elicit the views of (the Son) (e.g. what would you like to do? How many days would you like to be with you mother?) At first, (the Son) answered, half a day at the mother's and 4 days at the father's. Then the father asked, what if your mother wants to see you? Then (the Son) replied how about 4 days at the mother's. The father then replied, 'you need to prepare for exams and complete homework. You need to see your mother and you need to see your father). There was no conclusion. (The Son) reported in the post-observation discussion that he was unsure how many days of school holidays he will be getting and hence he does not know how to arrange his timetable. When I asked why did he say half a day with the mother to his father when he said two days to me before. He said that he suddenly changed his mind because it would be sad for his father if he does not spend Christmas with him. It appeared that although the father has asked some useful open-ended questions to understand what (the Son) wants, it appeared that (the Son) tended to offer answers that would make his father happy. It is also uncertain as to what extent the father was really receptive or accepting (the Son) choices.

…

9.1.8.7 … The following factors in the paternal family could implicitly affect his preference: (1) (the Son) was cognitively mature enough to understand that he is going through court proceedings and so he is required to choose between his paternal versus maternal family, (2) he knows that if he chooses his mother, his father would be unhappy and be worried about him (while his mother is more open about this), (3) he worries about his grandmother's safety if he and his father do not live with her, (4) the paternal grandmother does not explicitly encourage him to visit his mother. Even when the adults do not speak explicitly about what they think, the child can feel and see the adults' true feelings (e.g. the father's unhappiness when he is at his mother's) and adjust his answers to please the adults that he cares about. In sum, these are evidence to suggest that there the paternal family's attitudes and feelings towards the mother have an implicit influence on the child's preferring the father and rejecting the mother; (the Son) is smart enough to feel and sense the underlying messages that his paternal family holds towards the mother.”

49.  It is undisputed that the Son has been under the main care of the Father, who becomes a full-time home stay dad for over 2 years and 7 months since about August 2018.  At that time, the Mother worked as an obstetrician and was just promoted to vice associate consultant in the hospital.  She does not challenge that the Father is the primary carer of the Son.  As said in para. 5.5 of the 1^st CP Report,

“5.5....the Father helped (the Son) with everyday routines (e.g. tucks him to bed, helps him with bath) but as for the Mother, it seems that (the Son) has limited interaction with her on daily basis…

7.1…The Father being the major child caretaker of (the Son) knows well about the boy’s daily routines and habits…” 

50.  Further as observed by Miss Lo in para. 47 of the 2^nd Report that the Son’s bonding with the Father was undeniably strong.   As a result, I would certainly accept that the Father has explicitly and implicitly influenced the Son in many aspects but I disagree that there is sufficient evidence to show that the Father’s influence undermines the Son’s view and relationship with the Mother.

51.  Whether or not, as argued by Mr Chan for the Mother, the Father’s written undertakings are enforceable, I accept his undertaking to promote the relationship of the Mother and the Son, which is a good reminder to him. I also note from para 5 of the 2^nd SIR that the Father completed a basic course of “KID First Co-parenting workshop”. It shows that he should understand the loyalty conflicts now being faced by the Son and should not put the Son into a difficult position.

52.  Mr Chan for the Mother further submitted that the Father is lack of insight and proper judgment as the main carer of the Son.

53.  I do not think that it is necessary to go into details of Mr Chan’s arguments in this regard.  In short, such criticisms against the Father may be correct to some extent but no parent in the world is perfect. In the application for care and control, the court has to take into account all the relevant factors and circumstances so as to reach a conclusion which is in the best interest of the child in question.

Father’s plan for full time employment

54.  The Father has good qualifications in several overseas universities and used to work as Digital Marketing Manager in a famous bank in Hong Kong.  In 2011, he formed a company which eventually did not operate at all.  In 2012, the Father invested in vintage camera. The investment scheme seems not successful.

55.  It is the Father’s own evidence that he plans to get a full-time and gainful job. He also admitted that he has relied on the financial provision of the Paternal Grandmother.  He felt obliged to repay her at some time in the future. In this regard, he already had a forward planning to accommodate the Son’s schedule by choosing a job with working hour ended at around 6 p.m. so that he could return home and take over from the private tutor whom he would engage to teach the Son after school. He would continue to pay full attention and provide good care to meet the Son’s needs.

56.  Mr Chan for the Mother contended that as the Father will be occupied by his work, the duty of taking care of the Son will naturally land on the Paternal Grandmother, which will only intensify the hazard faced by the Son. 

57.  On one hand, the worry of the Mother is fully understandable.  On the other hand, I accept that the Father’s planning is feasible. As I understand from the 2 SIRs, the Father is also assisted by a domestic helper apart from the Paternal Grandmother. I consider that the Son’s care can be well looked after even the Father finds a full-time job in the future.

Importance of taking into account the wish of child

58.  Mr Chan for the Mother submitted that the court does not need to attach much weight to the wish of the Son as he is merely 8 years old.

59.  Ms Soo for the Father relied on the Court of Appeal case in YSYM v LHB [2020] HKCA 586 which has recently emphasized the importance of a court taking into account the wishes of children by citing the following English cases: -

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

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

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

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

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

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

60.  In Y v L [2005] HKFLR 146, the respondent father applied for an order concerning the schooling and education of a 9-year-old girl as the petitioner mother, who was the custodial parent, had a plan to transfer the child to another school. The court accepted that the question to ask at the end of the day was whether it was in the child’s best interest at that stage for the change of the child’s school and the court was guided by the general principles that the court shall regard the welfare of the child as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the child if, having regard to the age and understanding of the child and to the circumstances of the case, it was practical to do so, as well as the wishes of the parents and any report of the Social Welfare Department available to the court at the hearing.

61.  In that case, the Social Welfare Officer gave evidence in court and her report concluded that “[the child] is not psychologically or emotionally prepared for a change of school at the present stages” and did not support the change. She admitted in her evidence given in court that in reaching her decision, she put the child’s view as the most important factor, but she had also considered all the other relevant factors. She confirmed that she had personally discussed the matter with the child and was convinced that the child’s view expressed to her was genuine. Based on the Social Welfare Officer’s evidence, the court found it quite clear that the child was mature enough to express her true feelings but at the same time sensitive and considerate not to say things that may upset either of her parents.  The court also believed that she genuinely preferred to remain at her then school to go to the new one.

62.  The court accepted that that the child’s wish to remain at her then school was that of a 9 years old child, but one who was intelligent and mature enough to have a good understanding of what she wanted, and what had tilted the balance and made it necessary that what he had expressed in a sensible way should, in fact, be the decision of the court, was the court’s belief that it was paramount for the child to feel happy and secured at this stage of her life, and continuing her education at her then school would surely be an important part of that.  The court was just not convinced that would be in the child’s best interest to go to the new school at that stage.

63.  Ms Lam observed in para. 9.1.8.7 of the 2^nd CP Report, the Son was cognitively mature enough to understand that he was going through court proceedings and so he was required to choose between his paternal versus maternal family.  Also in para. 11.5 of the 2^nd CP Report, the Son was said to be smart enough to know that his parents were in conflicts. Ms Lam considered that there is currently no evidence to suggest that the Father gave any explicit message to the Son for him to choose him or reject the Mother.  It is out of the Son’s direct observation of the Father’s responses and his own good intention for the Father.  She considered that it is also natural for the Son to want to take care of his father’s feelings, as he considered the Father as a better match in looking after his needs. Ms Lam also accepted that the Son’s strong preference for the Father is partly valid given that the Father’s parenting style is a better match to his current developmental needs and the high level of mutual affection in the father-son relationship.  In the premises, Ms Lam did not find that the Son was lying when he showed preference to continuing living with the Father.

64.  Miss Lo, who had met the Son privately on two occasions in an interval of about one and a half years, recognized in the 1^st SIR that the Son already had relatively stronger attachment to the Father and hence his expressed wish to be with the Father was understandable. In the 2^nd SIR, she observed that the Son was an emotionally sensitive child and his bonding with the Father was undeniably strong. Hence, based on her observation that what the Son needed most now is sense of security stage and being free from adults’ conflicts, she therefore recommended the Father to have the Son’s care and control.

65.  I accept the observations made by Ms Lam and Miss Lo.  Although the Son is only 8 years old, I consider that he is much more mature than other boys of the same age.  Such maturity can be somehow reflected by his answer to Ms Lam that “life is too unpredictable” as per para. 8.4.6 of the 2^nd CP Report. Having regard to the age, maturity and understanding of the Son, I find that his wish to live with the Father is genuine.  It is very important for me to seriously consider his wish in this applicationas it is the Son, more than anyone else who will have to live with what the court decides.

The Checklist Factors

66.  The Checklist can serve as a useful guide when considering the present issues relating to the arrangements for the Son and his best interests generally.  Nonetheless, it is by no mean to be an exhaustive list.  Not every factors in the Checklist are relevant to the present case and only some of them will be discussed below.  Besides, I consider that it is unnecessary for the court to resolve each and every disputes of the parties, especially some of which are insignificant.

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

67.  Miss Lo noted that the Son sometimes had low mood because of his parents’ court case and tried to ascertain the wishes and feelings of the Son. She accepted that the Son was consistent in expressing his wish to live with the Father in both the 1^st and 2^nd SIR.

68.  As discussed above, I consider that the Son’s wish to live with the Father is genuine and not manipulated.

The child’s physical, emotional and educational needs

69.  Ms Lam in the 2^nd CP Report considered that the Father and the Mother are both capable of taking care of the Son but recognized that the Son has a valid reason to consider the Father as better at teaching him given that the Father may indeed be a better match for his current development needs. His strong preference for the Father is partly valid given that the Father’s parenting style is a better match to his current developmental needs and the high level of mutual affection in the father-son relationship.  Ms Lam praised the Father for his way of dealing with the Son in the context of the Son’s violent play. The Father diverted the Son to attack the air while the Mother would ask the Son to stop attacking her.  Ms Lam was of the view that the Mother might contain her own sensitivity towards rejection, which potentially affect her ability to understand the Son’s play behavior.

70.  On one hand, I accept Mr Chan’s submission that how a parent should educate his or her own child about the violent behaviour or violent play is wholly a matter of parental choice.  On the other hand, the Father having the experience of being a boy may be able to understand the physical and emotional needs of the Son better than the Mother.  

71.  As to the Son’s educational needs, he had above average academic performance and the Son’s school teacher made good appraisal of his being mature for his age, very sensible, having a sense of humor, relating well with his classmates, kind and helpful to others, relating well with adults, showing high regard for authority, outstanding at generating thoughtful and interest discussions in lessons.

72.  In view of the sound backgrounds of both parents, I have confidence that both of them are able to make proper learning and academic arrangement for the Son.

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

73.  I note from the 2^nd SIR that the Son had told Miss Lo that the Mother was not good.  However, I am sure that the Son has in fact good relationship with both the Father and the Mother, though apparently his bondage with the Father is stronger.

74.  The Son also has very close relationship with the Paternal Grandmother and the Daughter who is 3 years old now.

75.  Regarding split care, I accept that it is always in the benefit of the Children especially during their young ages to grow up together.  Miss Lo was full aware of it and said in the 2^nd SIR that split care and control is less preferable. After all, it is only one of the many factors that I have to take into account.

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

76.  Ms Soo for the Father submitted that in the present case, the status quo is particularly important as there is explicit comment from Miss Lo about the importance of maintaining the status quo which has been working well for the Son and warning of likely adverse effect on the Son.  Miss Lo, who highlighted repeatedly that split care and control of siblings would always be less preferable, has nonetheless recommended in both her reports that the Father to have the Son’s care and control whereas the care and control of the Daughter to the Mother, apparently due to her paramount consideration that what the Son needed most now is sense of security stage and being free from adults’ conflicts and any drastic change at this stage would likely cause negative influence on his psychological development.

77.  Although Miss Lo may not have formal qualification on psychology, she has been working in the Social Welfare Department as a social welfare officer for many years and handling this case for over 2 years since 2018.  I still accept her comments that any drastic change at this stage would likely cause negative impact on the Son’s psychological development.

Conclusion

78.  In my view, both parties are no doubt loving and caring parents who have demonstrated their good abilities to look after the Son in many aspects. The Mother’s worry about the negative influence by the Paternal Grandmother on the Son is understandable and justifiable.  The Mother may not be able to believe that the Paternal Grandmother will not continue to “bad mouth” her in front of the Son or even alienate her relationship with the Son despite of the written undertaking given by the Paternal Grandmother.  However, I consider that once the issue for care and control of the Son is finalized and resolved, the situation would be further improved.  I sincerely hope that the parties including the Paternal Grandmother would explain to the Son that no matter the outcome of the financial disputes between the adults is, it has nothing to do with the welfare of the Son. 

79.  As discussed above, I must seriously consider the wishes of the Son to stay with the Father (who is his primary carer) in view of the undeniable strong bondage between themas well as the importance of maintaining the status quo.  Split care and control of the Children is of course one of the many factors which cannot be overlooked.

80.  After having carefully considered all relevant factors and circumstances, I come to the conclusion that in the best interests of the Son, his care and control shall be granted to the Father.

81.  I now order that:

 i.  joint custody of the Children be granted to the parties;

 ii.  care and control of the Son be granted to the Father;

 iii.  care and control of the Daughter be granted to the Mother;

 iv.  the access arrangement of the Son as follows:

a.  The Mother do have staying access to the Son on alternate weekend. The Mother shall pick the Son at 3:15 pm after school on Friday and take the Son to his Primary School before 7:50 am the next Monday. The Mother will also be responsible for taking the Son to the activities, if any, when she has staying access to the Son;

b.  In the week the Mother is not having staying access to the Son, she is to have access to the Son from Friday after school to 8:30 pm on the same day and from 10:00 am to 2:00 pm on Sunday;

c.  For the summer vacation, the Mother and the Father can share the Son’s summer vacation equally subject to the agreement as to the detail arrangements. If no agreement can be reached, the Father will take the first half of summer vacation and the Mother will take the second half of the summer vacation;

d.  The Mother and the Father can freely communicate with the Son through video call or phone call when the Son stays with the other parent.

 v.  the access arrangement of the Daughter as follows:

a.  The Father do have staying access to the Daughter after she turns 6 years old. For the 1^st to 6^th months, the Daughter can stay at the Father’s home for one night once a month. After the 7^th month and onwards, the Daughter can stay at the Father’s home for one night twice a month;

b.  Prior to the commencement of staying access, the Father can have day access to the Daughter once a week, namely, a defined 7 hours on either Saturday or Sunday. This day access shall cease when the Daughter turns 6 years old upon the commencement of staying access;

c.  When the Father is having day or staying access to the Daughter at his home, the Paternal Grandmother must not be present until the Daughter reaches 8 years old.

 vi.  The Paternal Grandmother can have video call to talk to the Daughter for not more than 10 minutes once a month for the 1^st to 6^th months after the Order is made herein. The frequency be increased to twice a month and the length of the video call can be extended up to 15 minutes from the 7^th month onward.

 vii.     The Paternal Grandmother can have dinner or lunch with the Daughter, together with the Father, once each year during Christmas and Chinese New Year school holidays after 12^th month of video call with the Daughter.

82.  Regarding the question of costs, the usual order for this kind of application shall be no order as to costs.  I make an order nisi that no order as to costs including all costs reserved in relation to the children’s matters which be made absolute unless any of the parties apply to vary by way of summons together with a supporting affirmation within 14 days. The Father’s own costs be taxed in accordance with the Legal Aid Regulations.

83.  Last but not least, I take this opportunity to thank Counsel and solicitor for their assistance to me.