DX v. LN

FCMC No.7870 of 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSE NO. 7870 OF 2014

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Judgment
(Care and Control of Children)

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1.   This is a dispute between the parties over the question of care and control of their 2 children, both sons now aged 2 and 4 years, upon the dissolution of their 6 years marriage. The elder son WL has since early 2014 been residing with the Petitioner Mother when she moved out of the former matrimonial home, while the younger son SF has remained in the former matrimonial home with the Respondent Father and assisted by the paternal grandmother and 3 domestic helpers. 

2.   The parties are agreed on joint custody of the children, and are also on common ground that the 2 brothers should grow up together and hence no split order for their care and control should be made, as each seeks the care and control of both children.

Background

3.  The Mother is aged 30 and a full-time housewife, while the Father aged 37 is a businessman working in his father’s business in Wuhan, China. Both were born and raised in Wuhan, with the Mother being the only child of her divorced parents, while the Father is the only son with a younger sister from a well-off family with substantial business interests in Wuhan. 

4.  In 1995 the Father and his family came to settle in Hong Kong, from where he then went to Australia for further studies before returning in 2003 to starting working in his father’s business in Wuhan. It was there when he met the Mother who was just fresh out of university in Wuhan, and they subsequently registered their marriage on 27^th November 2006 in Hong Kong.

5.  After the marriage the parties made their home initially in Wuhan until about 2010 when the Mother became pregnant with the elder child and moved to Hong Kong where she subsequently gave birth to WL on 16^th August 2010 and became a full-time housewife in a property at Harbourfront, Hung Hum purchased in the Father’s name, while the Father would shuttle between Hong Kong and Wuhan to deal with his father’s business.     

6.  On 22^nd July 2012 the Mother gave birth to the younger child SF. By then the parties had hired 3 domestic helpers for their household with 2 of them to assist in the care of the 2 children while the 3^rd helper was mainly responsible for the household chores.

7.  One day during Christmas of 2012 while the Father was in Hong Kong, the Mother discovered certain text messages in his mobile phone that led her to suspect that he was having an extra-marital affair with the woman mentioned in those messages. After a confrontation with the Father the Mother left Hong Kong by herself on 3^rd January 2013 for Wuhan and told her in-laws about the Father’s affair. She returned to the matrimonial home in Hong Kong on 10^th January 2013 and the parties appeared to have reconciled.

8.  In February 2013 the parties with their children went to Wuhan for Chinese New Year during which the Mother however again became suspicious that the Father was still carrying on his extra-marital affair. As a result she left Wuhan by herself on 13^th February 2013 to return to Hong Kong. After a few days she decided to separate from the Father, and therefore packed some of her belongings including some jewelleries from their safe deposit box and withdrew HK$590,000 from the bank account before returning to her own home in Wuhan.

9.  In late February 2013 the Father brought the elder boy WL back to Hong Kong for school, while the younger boy SF stayed with the Mother in Wuhan, In about April 2013 through the intervention of the paternal grandfather the Mother agreed to return with SF to the matrimonial home in Hong Kong.

10.  Sadly the parties’ relationship did not improve as the Mother suspected that the Father was still seeing his girlfriend in Wuhan, and as her emotional and physical conditions deteriorated, she left Hong Kong by herself in about June 2013 for Wuhan where she stayed for treatments and recuperation, returning to Hong Kong on occasions for short stay only to see the children who were then being looked after by the domestic helpers and the paternal grandmother who had come to assist and stayed in the parties’ matrimonial home in Hong Kong.

11.  In about mid-January 2014 the Mother returned to the matrimonial home in Hong Kong and stayed with the elder boy WL while the younger boy SF had been taken by the paternal grandmother to Wuhan for holiday. About a week later the Mother brought WL to Wuhan to join the Father and SF for the Chinese New Year, during which the parties had another fall out and the Father later left with SF to return to the matrimonial home in Hong Kong where SF resumed his pre-nursery class at York International Kindergarten at Kowloon Tong.

12.  On 15^th February 2014 the Mother also brought WL back to Hong Kong but only to stay in a service apartment in the same vicinity of the matrimonial home and returned WL to his kindergarten class at the same York International. One week later on 21^st February 2014 the Mother filed for divorce in these proceedings based on the Father’s unreasonable behaviour and also sought custody care and control of both children as well as general ancillary relief.

13.  On 26^th February 2014 the Mother issued a summons for interim custody care and control of the children and also for an order that they be prohibited from being removed from this jurisdiction unless with leave of the court.

14.  That summons was opposed by the Father who also sought custody care and control of both children, hence it was adjourned at the hearing on 25^th March 2014 for a social investigation report, but the parties were able to agree on interim access for the Mother to have SF on every Saturday from 10 am to 7 pm while the Father was to have WL on every Sunday for the same hours.

15.  The report which was submitted on 3^rd June 2014 recommended the parties to be given joint custody of both children, with care and control of WL to the Mother while the Father was to have care and control of SF, with weekly access including staying access to the other parent, essentially preserving the status quo of the children.

16.  As noted above this proposal of split care and control of the children was not agreeable to either party, who then attended a CDR hearing on 8^th September 2014 but when that issue still remained unresolved, directions were given for the matter to proceed to trial and that an updated social investigation report be submitted.

17.  That report dated 15^th December 2014 and prepared by a different officer as the first one had since been posted elsewhere however arrived at a different conclusion recommending care and control of both children be to the Mother. As this was obviously not agreeable to the Father, the trial therefore proceeded to its full course during which the Mother was represented by Ms Anita Yip SC and the Father by Mr Paul Shieh SC with Ms Rachael Siu, and in addition to the parties both the maternal and paternal grandmother and the paternal aunt as well as the two Social Work Officers who prepared the reports also attended court to give evidence. Before proceeding to consider them in detail, I should first set out the applicable legal principles, of which in the main there seems to be little controversy.

Legal Principles

18.  The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child of the family are set out in s 3(1)(a) of Guardianship of Minors Ordinance, Cap. 13 (“GMO”) in that the court:

(i) shall regard the 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 practical to do so; and

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

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

19.  The words “best interests”, which have only since 2012 replaced the word “welfare” in that Ordinance, are in fact synonymous with each other, as explained in Rayden and Jackson on Divorce and Family Matters, 18^th edition, Chap 36.14:

“The word ‘welfare’ must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only; the moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded. ‘Welfare’ and ‘best interests’ are synonymous.”

20.  In UK where the same welfare and now best interests principles apply to children matters and from which our s 3(1)(a) were derived, their courts are required to have regard to the matters specified in their Children Act 1989 which have come to be known as ‘the welfare checklist’, which consists of the following:

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

(b) his physical, emotional and educational needs;

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

(d) his age, sex, background and any characteristic of his which the court considers relevant;

(e) any harm he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under the 1989 Act in the proceedings in question.

21.  While we do not have either Children Act or similar welfare checklist, both our courts and practitioners in this field have found many of the matters mentioned in the UK checklist relevant and helpful in arriving at what are the best interests of the child concerned, which have in fact been recommended by the Law Reform Commission for our legislation, although I should also note from Rayden supra (Chap 36.17) that while there is a duty in UK to have regard to the checklist, judges are entitled to have it assumed in their favour that they will do so without subjecting them to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one, and that the items mentioned in the checklist are not exhaustive of the matters to which the court may have regard.

22.  It is therefore with these principles in mind that I shall now proceed to consider the relevant matters referred to above and their evidence in my determination of what would be the best interests of these 2 very young boys regarding their care and control arrangement in the event of their parents’ divorce, starting with the 2 social investigation reports.

Social Investigation Reports

23.  As noted above the 1^st report by Social Work Officer Mr Wan [B1/142 – 151] recommended joint custody to the parties but with split care and control of the 2 children, essentially for the current care arrangement to continue which is not agreeable to both parents, whereas the 2^nd report by Social Work Officer Mr Kwok made some 6 months later [B1/412 – 420] came down in favour of the Mother in respect of care and control of both children.

24.  It seems to me that Officer Wan arrived at his said recommendation in the 1^st report primarily on the basis that as both children had been under proper care under their current arrangement, he believed that it would be in their best interests that their status quo be preserved, as he explained at the conclusion of his report [B1/150]:

“38. Both the parents request to claim the custody of the children. On one hand, the petitioner claims that she is all along the main carer of two sons and she can be full-time to continue her care for them. She also enlists the assistance from her mother to support her. On the other hand, the respondent living with his parents is confident to take well care of WL and SF with the assistance of his mother and three domestic helpers. Both parents recognize the importance of co-parenting to the development of two sons. They hope the sons to be loved by both parents even though they are divorced.

…

     40. From the perspective of the development of a young child, the attachment to parent is one of crucial factors requires to address. WL has stronger attachment to the Petitioner but he is more relaxed in front of the respondent. SF is closely attached to both parents and can become cheerful when he is relaxed. The Respondent seems to have more support in child care while the petitioner as a full-time housewife is more available to take care of the sons. Both parents can address to the emotional needs of children and can handle when they appear moody. Though the siblings live apart, they are still under normal development without significant influence for the time being. Taking the benefit of stability of caring environment into consideration, the disturbance to the routine development of WL and SF will be less if they remain in status quo...”

25.  It is however also plain from the report that as the children were found to have maintained close attachment to both of their parents, neither parties were agreeable to the siblings being split up in their future care arrangement, yet Officer Wan appeared to me to have ignored the benefit of the siblings growing up together or at least failed to place sufficient weight of that benefit in arriving at his recommendation.    

26.  In the 2^nd report the balance was tilted in favour of the Mother for care and control of both children as Officer Kwok agreed that the siblings should not be separated and provided the following reasons at the conclusion of his report [B1/419]:

“30. Both the Petitioner and the Respondent were loving and caring parents. They were ready to shoulder up the child care responsibility to provide good nurture to the children. Demonstrating their readiness, capability and availability in child care, they each considered themselves as the more suitable main care giver to them and would like the care and control of both children be granted to them. On one hand, the Petitioner was a full time housewife. She had shown her commitment and efforts in taking care of the children’s growth and development. On the other hand, the Respondent also showed commitment to have active involvement in child care. His resourceful background made him available to become care giver of the children. Nevertheless, as a non-working full time mother, the balance was titled in her favour in looking after their physical and emotional needs, especially at the tender age of the children-in-question.

31. While considering the care and control to the petitioner, the access arrangement was viewed equally important. To maintain the father-sons relationship, access arrangement, including staying access, was supported to facilitate the bonding between the father and the sons which was beneficial to the sons’ development. Besides, the respondent should have chance in taking part in their school and social life …”      

27.  As noted these recommendations are not acceptable to the Father as he does not believe that it would be in the best interests of the children for the Mother to be given their care and control for various reasons detailed in his 2^nd Affirmation of 7^th August 2014 [B1/176 – 195], which can be summarised as follows:

(a) that the children have not been well looked after by the Mother who was not even their primary carer during the marriage;

(b) that the Mother is jealous, suspicious, impatient, materialistic, and emotionally unstable, and has abandoned the children in the past, hence she cannot be trusted to be given their care and control;

(c) that the Mother has been alienating the children from their father and/or his family;

(d) that by comparison the Father would be able to provide better care for the children and with better support network.

28.  In support of his case the Father seems to have relied on evidence of events allegedly occurred during various stages or periods, namely during the marriage (item (a)), arising from the breakdown of relationship (item (b)), and since the parties’ separation (items (c) & (d)), of which I shall now consider starting with the item (a).

Was Mother the Primary Carer?

29.  This issue of the Mother not being the primary carer was in fact first raised in the Father’s 1^st Affirmation when he stated in §33 that “it is not true that the petitioner is the primary carer for the children. She entrusted the children with the maids … my mother and my younger sister. My younger sister has been arranging the school and daily activities for WL and SF” [B1/64].

30.  In addition there is the evidence from the paternal grandmother on how she and the domestic helpers were involved in the care of the children when the Mother would sleep until very late around noon, leaving the children to their care in particularly the feeding and dressing of the elder boy WL every morning as well as taking him to school [B1/277 – 282].

31.  There is also the affirmation of the Father’s younger sister (paternal aunt) citing in particularly the incident when the younger boy SF was hospitalised in July 2013 for allergy problem and that it was the helper who stayed with him while the Mother did not spend much time in the hospital {B1/284, 289}.  

32.  However, in his 2^nd and main affirmation in support of his application for care and control of the children, this appeared no longer to be the issue as the Father did not raise it again, at least not so specifically. At any rate as pointed out by Ms Yip in her closing submission, that statement that the Mother was not the primary carer was at the trial retracted by the Father on cross-examination, while the paternal aunt also conceded that she did later learn that the Mother had in fact stayed over with SF in the hospital every night during his stay for his allergy problem.

33.  Given the wealth involved in this marriage and the fact that the paternal grandmother did stay with the parties in their matrimonial home in Hong Kong and at some stage the paternal aunt as well, and had had the service of several domestic helpers, it is hardly surprising or unusual that some of these 3^rd parties may have assisted in the care of the children, as submitted by Ms Yip for the Mother, that it is in fact both necessary and practical for her to delegate some of the work to others, but as a full-time housewife and mother she has always looked after all aspects of the children as their primary carer, as she detailed in her 5^th Affirmation [B1/162, 163 – 166].

34.  If indeed that was the case, I agree that the fact that she may have delegated part of her work to others cannot be the reason or basis for claiming that the Mother was not the primary carer, in particularly when the Father during cross-examination did not dispute that she did do the following for the children during the marriage as evidenced, for example, by their text messages and photographs exhibited to the Mother’s 6^th Affirmation [B1/318, 365 – 393]:

(a) cooked for them;

(b) arranged their activities;

(c) bathed them;

(d) cared for them when they were sick;

(e) cut their hair;

(f) arranged and prepared the elder son for school interview;

35.  In the premises I am satisfied that the Mother was indeed the primary carer of both children during the marriage. By not pursuing that issue does not of course necessarily follow that the Father would accept that the Mother has been a good carer or is fit to have the care and control of the children upon their divorce, as it is his case that she is not, which is the next issue.            

Was Mother A Good Carer?

36.  I should first point out that both social investigation reports have found the Mother, and for that the Father as well, to be a good parent to the children and is able to meet both their physical and emotional needs, as reflected in the reported observations of their satisfactory development both at home and at school, in particularly WL who has been under the Mother’s sole care since early 2014.

37.  In his 2^nd affirmation the Father’s criticisms of the Mother’s care of the children appeared to be confined mainly to his observation of unexplained scars and wounds as well as legs full of bugs and mosquitoes bites on WL during access [B1/180 – 181] which caused him to question the Mother’s ability to provide adequate care for the children.

38.  Other than a few snapshots of some mosquitoes bites there is however no evidence of any serious wounds on WL that should cause any real concern in my view. The reality is that children do bump their head or fall while running and hurt themselves in accidents while growing up, in particularly with active boys during plays at school, and there is simply no evidence before the court to justify the Father’s concern over the Mother’s parental ability because of a few mosquito bites or bruises on these two children.

39.  In fact, the evidence appears to show the contrary when the Father’s many text messages exchanged with the Mother during the marriage and exhibited to their various affirmations actually show his appreciation and confidence on the Mother’s care for their 2 children, such as those referred to on page 5 of Ms Yip’s closing submission and in the trial bundles [B1/376, C1/199].

40.  While that may be his view of the Mother at that time, the Father now claims that he has reasons to be concerned about the Mother’s ability or dedication to care for the children, some of which as noted above allegedly arose from the time of the breakdown of their relationship in late 2012 and early 2013 namely the Mother’s focus on materialistic matters, her history of leaving the children and her mental breakdown.

Mother’s Focus on Materialistic Matters

41.   This alleged behaviour of the Mother actually arose first from her own affirmation, her 1^st one filed on 25^th February 2014 when she admitted that upon discovering the Father’s alleged affair with another woman, she decided to separate from him and therefore removed her belongings including some jewelleries and withdrew HK$590,000 from the bank account for her future living expenses [B1/10, 13 §15 – 17].

42.   While the Father did in his affirmation in reply point out that in addition the Mother also removed some of his “luxurious watches” which she had later returned, and some gold bars B1/56, 60], it was clearly an one-off situation and for financial necessity which was in my view quite understandable under the circumstances, yet this is what Mr Shieh has submitted for the Father in his closing submission:

“26. In January 2013 the Petitioner left the two children in the hands of the Respondent, his mother, his sister and the three maids in Hong Kong while she went back to Wuhan on her own to complain to the Respondent’s father that she suspected he was having an affair. She left the sons for one week in this incident … The Petitioner asked the Respondent’s parents to cut his source of finance in order to keep him home. The Respondent’s parents did so and so the Respondent had no money to pay the Petitioner as he did previously …

27. Shortly thereafter, the Petitioner came back to Hong Kong while the family was in Wuhan to take the valuables from the safe in Harbourfront property and emptied the bank account (HK$590,000).

28. In April 2013, the petitioner came back to Hong Kong with the Respondent’s father and stated that the paternal grandfather “would pay her [me] back for what she has [I have spent] in that period”.

29. These episodes showed that the Petitioner was materialistic minded. At most critical junctures, she focused on money or materialistic assets – cutting off the Respondent’s source of funds to keep him home and grabbing assets for herself irrespective of ownership or entitlement. Such acts cannot be explained or justified by reference to a “spur of the moment” impulse. When she described returning to Hong Kong with the Respondent ‘s father the one thing she chose to highlight in her affirmation was his promise to pay her back. The above show that her values and priorities were all wrong.”

43.   That was however not even the Father’s complaint in either his 1^st or 2^nd Affirmation, as there was never any evidence to suggest that the Mother had indulged in extravagant spending or materialistic needs during the marriage, and by seizing upon that occasion to make that submission seems to me stretching it too far and is evidentially unsustainable. In fact the same can also be said about next 2 complaints about the Mother’s behaviour arisen from the same occasion.

Mother’s Leaving the Children and Mental Breakdown

44.   It is Mr Shieh’s submission that during the year of 2013, as admitted by the Mother, her physical and mental conditions were unstable and that she was too depressed, and that apart from this history of her mental breakdown, her poor relationship with the paternal family members as revealed in some of her text messages which show that she has been verging on being paranoid even before December 2012, and given the history of her mental breakdown and leaving the family, her paranoid tendency and her focus on materialistic matters, there is a real likelihood that if she encounters some other downturns in life, she would have another breakdown and leave the sons again, or put her own financial and/ or interest ahead of the children. 

45.   In her 1^st Affirmation of 25^th February 2014 [B1/10 – 24] the Mother sought to explain what happened to her upon discovering the Father’s alleged affair:

“12. I was devastated over the Respondent’s infidelity and I was very lost after discovering the matter, especially the attitude the Respondent handled it.

13. I went back to Wuhan on or about 3rd January 2013. I told the Respondent’s parents about the respondent’s girlfriend.

…

22. Since the end of December 2012 after I discovered the Respondent’s extra marital affairs, I have lost about 30 lbs in less than 3 months. I was too depressed that I suffered from hair loss, I could not sleep at night and I cried from time to time. My emotion was very unstable that I sometimes could not control myself but even cried when WL was present.

…

25. I was in a very bad condition both physically and mentally. Frankly, I could not even look after myself properly and I knew that I was not in a good condition to take care of my children. I have therefore decided to go back to Wuhan, where I could take a good rest and my mother could also look after me as a desperately needed the support of my family in Wuhan. I am determined to treat my health and my lower back pain properly otherwise I would not be able to take care of my children. I did not want to scare WL as I could not carry him and I did not want to let him see me cry.

26. I went back to Wuhan in about mid June 2013 to treat my health problems, including seeing Chinese doctors and to have acupuncture treatments. I intended that to be a short term stay in Wuhan and I would definitely return to Hong Kong when I recovered. The children were taken care of by the 3 domestic helpers at home; the Respondent’s mother would also go to Hong Kong sometimes to look after them. I have also maintained contact with the domestic maids by messaging them (whatsapp) during the time I was in Wuhan to make sure that the children are alright and are well taken care of.”

46.  It is hence not disputed that in addition to what Ms Yip claims to be the Mother’s short sojourn away from home for Wuhan in early 2013 shortly after discovering the Father’s alleged affair, the Mother did leave home again in June of the same year to stay with her family in Wuhan for some 6 months until January 2014 for the reasons referred to above, and it is against this background, Ms Yip submits, that it is not difficult to envision a wife and mother who was worn and torn both physically and emotionally without any family support in Hong Kong, but it was never her intention to just walk out and never to return to the children, as she did subsequently return upon having recovered from the ordeal, so much so that as the case developed during oral evidence, Ms Yip submits, that the Father had by and large abandoned his case that the Mother had deserted the children. 

47.  As submitted by Ms Yip, the Father had never attempted to even deny his extra-marital affair in any of his affirmations or his on-going relationship with the same girlfriend, and I agree that that his attempt at the trial to suggest that he was yet involved in this relationship when confronted by the Mother in the Christmas of 2012 sounds not just feeble and hollow but also shows his stubborn refusal to accept responsibility or his inability to engage upon self-reflection on what had been done to his wife’s emotion and their marriage as a result, and worse still for him now to use her emotion breakdown to criticise and question her parental ability which is in my view not only wholly unacceptable but also reflects poorly on his personality as well as his sense of fairness or responsibility.

48.  I have the same problem with Mr Shieh’s submission that the Mother has been verging on being paranoid even before Christmas 2012 relying mainly on certain text messages sent by her to the Father during the marriage as detailed in paragraph 10 of his closing submission of what appear to be various negative comments of some of his family members. However, what were never referred to are the Father’s responses to those messages which appear to me invariably his unquestioned support and encouragement to the Mother [B1/367, 376], and while the evidence of both the paternal grandmother and aunt did paint a less than harmonious relationship with the Mother, there is simply no evidence, medical or otherwise to suggest that she has been suffering from such a mental health condition of paranoia.

49.  Similarly, in the absence of any evidence that the Mother had suffered emotional breakdown on other occasions during the marriage or that such breakdown had been chronic or regular, it is in my judgment again stretching it too far for such submission to be made that there has been a ‘history of mental breakdown’ of the Mother which is clearly unsustainable.

50.  While I agree that the Mother’s departure in June 2013 may appear excessive as far as the children were concerned even for good or valid reasons given her circumstances, one cannot help but ask this: Would it have been more appropriate for her to take the children out of their school with her to Wuhan instead of leaving them in the care of their father and paternal grandmother and went off by herself while she tried to heal herself? In my experience in this court many mothers in such situation would have taken the children with them, no doubt with their own good reasons, but this mother did not do so and as a result the children’s daily life and education had not been disrupted. In my view her decision to go off by herself under the circumstances of her difficult situation does not deserve any criticism, and certainly not from the Father of all people whose extra-marital affair was clearly the cause for such decision.

51.  In the premises and for the reasons aforesaid, and having heard the Social Work Officers both of whom having found no concern at all of the Mother’s mental state, and having seen and heard the Mother whose devotion to her children I have no reason to doubt, and who impressed to be calm, balanced and composed throughout the trial, I believe that she has now got over whatever emotional problems that she had in the past, and I agree with Ms Yip that her run-away was one-off, temporary and historical, and that the Father’s suggestion of a repeat is fanciful and wholly unrealistic.

Parental Alienation

52.  It is the Father’s case that both he and his family members including the paternal grandmother have since the parties’ separation heard from the children in particularly the elder child WL about the Mother badmouthing their father as a bad person in front of them [B1/179 - 180, B2/453 – 455], and of a song sung by WL with lyrics of “hating father” which he believes to have been taught by the Mother as evidence of the Mother alienating the children from him given her blaming him for the failure of their marriage and her poor relationship with his family.

53.  This is of course denied by the Mother and with just the words of the Father and his family members against hers, it essentially boils down to whether all the other evidence is consistent with the Mother engaging upon such alienation, of which Ms Yip submits on the basis of the following that they are not:      

(a) that the Mother never raised a hue when the Father was late after access;

(b) that the Mother would always agree to the Father’s request for extra accesses such as to take WL for ice-skating lesions or to stay overnight at the Father’s place when the paternal grandfather was visiting;

(c) that the Mother did not blame the paternal grandmother when WL was injured whilst under her care;

(d) that the Mother did express her gratitude to the paternal grandmother for looking after the children during her absence;

(e) that the Mother was grateful to the paternal aunt for assisting in taking care of WL when she went out with the Father;

(f) that the Mother even agreed that in the event of care and control of the children being granted to her, that staying access of the children can take place with the Father’s close family members such as the paternal grandmother even though the Father may not be in Hong Kong.       

54.  Ms Yip therefore submits that one cannot see how these acts are consistent with a mother who is alienating her children from their father and his family, and that more tellingly there is no record at all of alienation in either Social Investigation Reports, of which the Father agreed that he would not have missed it, hence its absence in either reports glaringly suggests that alienation never existed, and his such complaint is just completely baseless.  

55.  Even if what the Father has said about WL are true and accurate, it seems to me that his case of the Mother’s parental alienation rested essentially on the implication of the boy living with her and on her alleged poor relationship with the paternal family, but the former has ignored the possibility of the boy just picking up such phrases or song elsewhere such as at his school, while the latter appears more one-sided from the paternal family rather than from the Mother, as reflected by the many criticisms levelled against her in the affirmations and evidence of the paternal grandmother and aunt, such as the aunt’s allegation of her spending little time with the younger boy SF in the hospital in July 2013 for allergy which was clearly not true and ill-founded.         

56.  Above all, this reliance by the Father of the Mother’s alleged poor relationship with his family to support of his case again seems to me contradictory or at least inconsistent with some of his text messages to her in which he appeared to be on her side and was supportive of her such as those referred to above. Ultimately the facts and evidence before me are simply not consistent with a case of parental alienation, nor is it supported by the observed close relationship of WL with his father, and I am not convinced at all that this mother would do something like that. In the premises I find this allegation of the Father unsubstantiated or unjustified.

Mother’s Lack of Support Network

57.  It is submitted on behalf of the Father that it would not be an easy task for the Mother to take care of the 2 children by herself in Hong Kong without family support except perhaps her mother who is however a heavy smoker and drinker, and had told him that she used to hit her former husband causing injuries, that she hates children because they are noisy and troublesome, and that she still goes out with different men from time to time, hence with such lifestyle and values she could hardly be trusted with the care of the children.

58.  The maternal grandmother in her evidence denied ever telling the Father that she hates children or is prone to using violence or that she is a drinker, although she did admit to being a smoker in the past but has already quit that habit. It is of course not easy to revolve who was telling the truth as it was again just a case of his words against hers, but as pointed out by Ms Yip, if indeed the Father had such serious concerns over the maternal grandmother’s lifestyle and values which may impact on his children, why did he not raise them with either Social Work Officers save for his concern expressed in the 1^st report that the grandmother would be intrusive in the care of the children [B1/146 §22]?

59.  While her role in the past may obviously have been quite limited, but having seen and heard the maternal grandmother in evidence, I have no doubt that she is genuinely ready and willing to support the Mother in her care of the children.          

60.  I shall next consider the Father’s own case for care and control of the children, starting with the most controversial one about his availability to be their primary carer.      

Father’s Availability to the Children

61.    In his said 2^nd Affirmation filed in support of his application for care and control of the children, the Father proposed to stay fulltime in Hong Kong as their primary carer, and that from February 2014 he had started to hand over his work to other staff of his father’s company in Wuhan so as to gradually increase the time that he could stay in Hong Kong with the children, and where he will work instead of in Wuhan for his father’s company [B1/192].  

62.  It is also the Father’s proposal that the paternal grandmother will continue to assist him in his care of the children, as she had done since their birth and to whom they are very attached. This he claims will also enable them to see and play with their cousins, i.e. the 2 children of his sister on daily basis as they live in the same neighbourhood and that one of them attends the same school of the 2 boys.

63.  The Mother however seriously doubts that the Father will indeed make himself available to care for the children, as his travel records show that he simply cannot afford to do so, or at least to provide the children the quality and quantity of time which she is able to do, notwithstanding that even after knowing that she had taken issue with his availability for the children, the fact is that he still spent only half of his time away from Hong Kong in most of 2014.

64.  According to the monthly charts prepared by the Mother of his days in Hong Kong from January 2012 to November 2014 [C1/204 – 238] based on the statements of his travel records [C1/133 – 134], the Father only spent a total of 45 days in Hong Kong in 2013, and while that figure did improve substantially to 165 days in 2014, as noted by the Mother it still represented no more than half of that year.

65.  Furthermore, Ms Yip submits, that during those days when he was not in Hong Kong the Father had missed most of his access time to the elder boy WL on Sundays in 2014 as tabulated in §130 of her closing submission, of which the Mother argues as inexcusable given the fact that flights between Wuhan and Hong Kong are frequent and only takes less than 2 hours.

66.  For the same reason, Ms Yip submits, the Father also failed to spend much time with the younger boy SF in 2014 either as he was not in Hong Kong half of the time, and that what he had told Officer Wan in §15 of the 1^st Social Investigation Report that he had since February 2014 stayed in Hong Kong without travel to Wuhan in order to look after SF turns out to be untrue, as the tabulation in §132 of Ms Yip’s closing submission shows that the Father was in fact in Hong Kong for only 8 days in February, 14 days in March, 15 days in April, and 12 days in May up to the time when the report was submitted, meaning that either his work still required him to spend much time away from Hong Kong, or that he has other reasons to be away.

67.  Ms Yip also points out that as late as December 2014 the Father’s avowed position to the 2^nd Social Work Officer remained that he was just a consultant of his father’s business and hence he would station and work from home in Hong Kong through telephone and internet, and that he would only need to travel to Wuhan 2 or 3 days each month at most according to §4 of the 2^nd report [B1/413], which she submits is totally inconsistent with his evidence in court when he admitted that he had also travelled to Shenzhen and Macau on various occasions allegedly not only to seek new business opportunities but also to attend weddings of friends and other social occasions.

68.  All these travelling of the Father just show, Ms Yip submits, that he did not think it through carefully about his plan to become a full-time carer of his children, that it is fickle, jury-rigged and inadequate, and that there is no reason why the court should just accept his words and entrust the children in his care when there was no history at all of him practising this role, when the evidence abundantly suggests that he was and will have to be away from his children for various reasons such as working, entertaining, socializing and dating.

69.  In fact, Ms Yip submits, the Father’s plan to become a fulltime carer was litigation-driven tactic crafted in the middle of cross-examination to boost his own case, as the Mother believes that it is impossible for him to work from home in Hong Kong, as the evidence of his involvement in his father’s company in Wuhan in the past clearly suggests he has been groomed to take over the business being the only son and adult male descendant of his family, and that on his own admission he is still in the learning process of doing business for the purpose of succeeding his father’s business.

70.  I agree with these submissions. While it is not entirely clear about the nature of the business that the Father has been involved in Wuhan other than it is quite wide ranging and substantial, the very fact that he had spent so much time away from Hong Kong in the past on business just show that what he is now proposing to do the same but instead only through telephone and internet at home and without travelling out of Hong Kong is to me wholly unrealistic and highly unlikely if not downright impossible.    

71.  In the premises the most reasonable inference to be drawn from the evidence is, as submitted by Ms Yip, that the Father will have to continue to work in Wuhan with a view to eventually succeeding his father’s business, that he could not even trim his travelling which has been extensive geographically and time-wise, and that they are not just work-related, as he has admitted to have entertained friends from time to time in Shenzhen and Macau, as well as spending time with his girlfriend in Wuhan. Of the latter the Mother believes there are other implications which may reflect on the Father’s parental fitness.

Father’s Extra-Marital Affair

72.  Ms Yip has described the Father’s evidence about his extra-marital affair as deliberate untruth and shows a flaw in his character that may have implication on his parental ability, which was first raised in the Mother’s said 1^st Affirmation when she described the events which eventually led to the breakdown of the marriage, but to which the Father never made any reply in any affirmation and even denied it in the 1^st Social Investigation Report, and only at the trial when he tried to explain away the various evidence of such affair with audacious lies or excuses which Ms Yip submits just go to show that he is immature and with inclination to engage in a process of denial and prone to avoid responsibility, and has been increasingly overcome by his prejudice against the Mother.

73.  In stark contrast, Ms Yip submits and I agree, the Mother presents as open-minded, gentle, and balanced, and has shown to be able to get over the failure of her marriage, whereas the Father has been unable to do so and instead seeks comfort in finding faults on the Mother by picking on minor and ambiguous incidents to convince himself that she was not a good mother and to justify his extra-marital affair. All these show that, Ms Yip validly argues, the Father is emotionally weak and unable to handle stress, and will inevitably rely on others such as his mother and helpers to take care of the children especially when things get tough or difficult, which is the next issue.

Father’s Support Nertwork & Reliance of Others

74.  There is no question about the Father’s obvious stronger support network with 3 domestic helpers and the paternal grandmother who had resided with the parties during their marriage and participated in the daily care of the children, as well as the paternal aunt who has her own family living in the same neighbourhood with 2 children of similar age as cousins to the 2 boys to play with and to go to the same school.

75.  Ms Yip however argues that it is for this reason and from the evidence before the court that the children will be looked after by the Mother herself if she has their care and control, and that there is no question that they will still be able to enjoy the companionship of the paternal family on weekends including their cousins whom they see everyday at school, whereas if care and control goes to the Father, they will no doubt be left in the hands of the paternal grandmother and the helpers, as even the Father himself has admitted in the 1^st Social Investigation Report that childcare duty mainly depended on the domestic helpers and that he and the Mother only sometimes assisted [B1/143 §7], and that in his own testimony he thinks it is the duty and responsibility of his mother and sister to take care of his children after the divorce.

76.  From the details given by the paternal grandmother in her affirmation [B1/277 – 282] of how she had assisted in the care of the children since their birth and that she would continue to do so for the Father should he be granted their care and control, one can see why there is concern on the part of the Mother that the Father would indeed leave the children in the care of his mother and the helpers, and hence of the doubts over his proclaimed desire to become a full-time parent and the feasibility for him to just work at home on his father’s business without travelling out of Hong Kong in future, I agree that such concern of the Mother is both real and justified.

Preference for Mother

77.  Even assuming that the Father would indeed quit working in his family business to stay full-time in Hong Kong to be a fulltime parent to the children, Ms Yip submits that at their very age it would still be in their best interests to be taken care of by their mother unless this is unsuitable for some compelling reasons, as Roger VP put it the Court of Appeal decision of R v Y CACV 193 of 2010:

“10. This court was reminded of a large number of decisions which have stressed the importance of the mother in the life of a young child. In this respect I would simply refer to the case of Brixey v Lynas [1996] 2 FLR 499. It is unnecessary to cite from the speech of Lord Jauncey; it is sufficient to say that what he said there was clearly based on practical experience and the realities of life and is not a matter of prejudice or discrimination.”

78.  That case of Brixey v Lynas concerned a 4-year-old girl whose custody was first granted to the father notwithstanding that she was found to be happy and well looked after by the mother, as it was concluded that the child’s best interest to become part of the father’s family with all the advantages of comfort, education and a strong and stable moral framework. On appeal by the mother it was held that the lower court erred in failing to take into account the advantages of maternal care for a very young child and of maintaining the status quo which had successfully existed since the child’s birth. The father’s appeal to the House of Lords was dismissed and at p504B of the judgment Lord Jauncey said:

“ … Butler-Sloss LJ with her great experience of family cases accepts that it is natural for young children to be with their mothers and in the above message in Re A which is particularly relevant to this case she points to the difficulty of displacing an unbroken relationship between a mother and a very young child unless the mother is unsuitable to have care.

The paramount consideration in any dispute as to custody is the welfare of the child … To determine what is in the best interests of a very young child regard must necessarily be had to its relationship with the mother with whom it is living. To suggest that any recognition of the natural mother’s natural ability to look after a very young child amounts to sexual discrimination is absurd. Nature has endowed men and women with very different attributes and it so happens that mothers are generally better fitted than fathers to provide for the needs of very young children. This is no more discriminatory than the fact that only women can give birth. Every case must be considered on its own facts. There will be other cases where the child is older and the matter is finely balanced. However, here the child is very young, has never been separated from its mother or half-sister for any significant length of time and it is not suggested that the mother is unsuitable to care for her. In that situation the advantage of continued care with the mother without disturbance of the status quo must be an important factor to be taken into account.”   

79.  In the case of Aslam v Ali CACV 144 of 2003 where the Court of Appeal overturned the first instance decision which awarded the custody care and control of three children aged 8, 5 and 4 respectively to the father which was the status quo, Roger VP again emphasized the important role of a mother in looking after young children at §36 of his judgment:

 “ … There can be no doubt that the role of a mother in looking after young children is particularly important. The 2 boys are, in my view, still very young. Sumayyah is only a little older, but being a girl, also needs a mother’s attention …”

80.  Mr Shieh submits that there is no immutable or rigid rule that this must be the case, that time spent with the child prior to the proceedings and the degree of attachment are important matters that must be considered, and that the Father in this case is not the normal type of working father but rather working in his own family’s business with great flexibility in terms of time and delegation to others that he can become be a fulltime father to his children, and hence he submits that there should be no preference of the mother over the father in this case.

81.  With respect I find this submission missing the points about the particular advantage of a suitable mother to care for her very young children so articulated in those cases cited above, that even if the Father is indeed able to be a full-time parent as he so proclaimed, of which I have already expressed my grave reservations, that it would still not be good enough reason to displace the Mother as the primary carer of the children in the circumstances of this case.

Status Quo

82.  This one last point raised by the Father essentially concerns the younger child SF who has not lived with the Mother since early 2014, and hence Mr Shieh submits that it would be undesirable to uproot him from his father and his familiar home, whereas if WL is to live with the Father, he will merely be returning to the same familiar home.

83.  There is no question of the importance of status quo as a relevant factor to be taken into account by the court, and it can be safely be assumed that when the 2^nd Social Work Officer recommended care and control of SF be given to the Mother, he must have taken into consideration that factor and any possible impact it may have on SF. Given the undisputed close relationship he has with his mother despite having lived apart from her most of the time since 2014, I believe that whatever possible adjustment problem that he may have should be easily overcome and readily displaced by being returned to the primary care of his own mother and the companionship of his elder brother, which was after all, as I have found, the status quo of the children’s care before the breakdown of their parents’ marriage..

Conclusion

84.  As pointed out by Ms Yip, there are no perfect parents, as the parents in this case are plainly not, but having been satisfied as above that the Mother has been the primary carer of both children since their birth and that as a full-time housewife she will be ready and able to devote her time and attention to care for them after the divorce, and who has the unchallenged support of at least the 2^nd Social Work Officer, the ultimate question for me must be whether it would be in their best interests for these two very small children to be placed in the care of the Father who had had little participation in their daily care in the past due to his heavy business involvement in Wuhan that had kept him away from Hong Kong most of the time, essentially just on his assurance that he can and will become their full-time carer in Hong Kong by working only at home through telephone and computer without having to travel to Wuhan to tend to his father’s business or to see his girlfriend or entertaining his friends.

85.  This is of course not to suggest that any parent must forgo or give up all his or her own personal obligations or activities in order to do a good job as primary carer of his or her children, and I have no doubt in this case of the Father’s love or concern for his 2 children, or of his abundant support network in assistance from his mother, sister and domestic helpers or his financial means to make any necessary financial provisions for his children, but I am simply not convinced at all that he would indeed do as he claims, or able to adhere to his proclaimed commitments to be a full-time parent in Hong Kong in the circumstances of his case as the only son of his family groomed to take over his father’s businesses in China and with a girlfriend residing in Wuhan. It would indeed be naïve to believe that he would not end up delegating the primary care of his children to the paternal grandmother or his helpers, as he had to the Mother in the past.

86.  Henceforth the answer to that question posted above must in the premises and for all the reasons aforesaid be a resounding ‘no’, as it is clearly in my judgment that it would be in their best interests for the care and control of both children to be vested with the Mother, and I so order accordingly, and subject to any agreement which the parties may have regarding the Father’s access over the forthcoming summer holiday of the children, that the younger child SF shall be handed over to the Mother’s care upon the completion of his current school term, whereupon I agree that the Father should have the kind of access to both children along the line of the current arrangement between the parties. I would also expect him to hold proper discussion with the Mother as to his financial provision for her and the children consequential to the orders that I have now made, albeit on interim basis and of that I mean including the use of domestic helper for her household given the kind of lifestyle she and the children used to enjoy during the marriage.

87.  Lastly, as to the question of costs, I shall wait to hear from the parties as to whether it be dealt with on paper by written submission or that a hearing be fixed to hear argument. It remains of course my gratitude to counsels for both sides for their valuable assistance rendered to this court throughout the trial.