LPYY v. FWHF

FCMP 89/2016

[2022] HKFC 271

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 89 OF 2016

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JUDGMENT

(Variation of Access)

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Introduction

1.  This is an application by the Respondent father (“Father”) for a variation of access to the parties’ child (“E”) who was born out of wedlock.  He seeks increase time with E while the Applicant mother (“Mother”) opposes the application.  E is now 9 years of age.

Procedural background

2.  The more detailed background of this case can be found in a previous judgment handed down by Deputy District Judge Rita So on 8 May 2020, in relation to the Father’s application for variation of child maintenance.  However, I will repeat some of the background and supplement with more relevant and up-to-date information.

3.  On 27 April 2016, the Mother commenced an action for custody, care and control of E and child maintenance against the Father.  

4.  On 17 October 2016, a Consent Order was made by HH Judge C K Chan granting joint custody to the parties, care and control to the Mother and defined access to the Father, including day access and staying access.  There was also an order for daily telephone calls and skype calls, and holidays to be shared equally in principle.  The defined access arrangements are detailed as follows:

Weekday access
(a)	(i)	from 6:30 pm to 8:00 pm every Tuesday...
	(ii)	electronic access to E including but not limited to telephone calls and skype between 8:00 pm to 11:00 pm every evening not more than twice …

Weekend staying access
(b)	In addition to paragraph (a) above, the Respondent do have staying access to the E …

5.  Unfortunately, there were difficulties with the access to E in around late 2017.  She demonstrated resistance towards meeting with Father.  In response to the deteriorating quality of access, the parties sought help from the Parent-Child Contact Centre (“PCC”).

6.  On 20 November 2017, the Father filed applications for variation of care and control and access, alongside a variation of maintenance.

7.  Pending further court order, overnight staying access stopped after December 2017 due to E’s resistance towards Father.  Since February 2018, the Father only had weekend day access at the PCC.

8.  On 12 September 2018, Deputy District Judge Rita So, inter alia, made a consent order at the close of a CDR, for a downward variation of the access arrangement (“2018 Variation Order”).  This 2018 Variation Order removed overnight stay access, limited physical access to dinner access during weekdays and Saturday access at the Parent-child Contact Centre.  It is also made in conjunction with certain undertakings by the Mother.  Excerpt of the 2018 Variation Order is as follows:

(1)	Video call or telephone call access to the Child between 9 pm to 10:30 pm every night;
(2)	Dinner access to the Child between 7 pm to 8:30 pm on every Tuesday and Thursday;
(3)	Access to the Child at the Parent-child Contact Centre (親籽薈) at 1:30 pm to 3:30 pm on every Saturday …

9.  Since the 2018 Variation Order, spanning the covid pandemic, and through intervention of social welfare officers, the access arrangement just prior to this current hearing evolves to Friday evening access at a venue close to the Mother’s residence, and alternate Saturday access at the PCC.

10.  Father took out the present summons on 14 January 2021, seeking a variation of access to E to, inter alia, increase his access from Thursday after school until noon on Sunday for school days and from 1:30pm on Thursday to noon on Sunday for a non-school day; and daily remote access between 8-11 pm.  Parties failed to reach a settlement after two CDRs before Deputy District Judge Raymond Chow (as he then was) which took place on 25 October 2021 and 31 December 2021.  The Father’s application was then adjourned to the present trial before me.

11.  Over the course of this 3 days’ trial, both parties gave evidence, as did the social welfare officer and the clinical psychologist. 

Brief background of the family

12.  The Father, born in 1975, is now 46 years old and the Mother, born in 1978, is now 44 years old.

13.  Both parties had former spouses whom they both had divorced in or around 2012.  Father has in his former marriage a daughter who now resides in Australia with his ex-wife and to whom he pays periodical maintenance.  While Mother has no child from her former marriage, she gave birth to a son before her former marriage, but she had not asked for custody, care and control, nor has any duty to pay maintenance.

14.  The Father was employed at a local bank but was terminated in around September 2017.  His unemployment lasted for a brief period of time before he was then engaged with an immigration consultancy company as a director or partner.  The Father now works at a bank on a contract basis; and is paying HK$29,500 per month of maintenance to the Child.

15.  The Mother worked as an accounting clerk but terminated her employment in around mid-2011.  This was shortly after the parties began dating in April 2011.  The Mother remains unemployed.

16.  E was born on XX August 2013.  She just turned 9 and is studying Primary 3 in a local government-aided school.

17.  The parties’ relationship had turned sour since a few months before E’s birth, they appeared to have an on and off relationship until the Mother filed her application for custody care and control in April 2016.  The parties strained relationship does not appear to have improved.

The Father’s case and open proposals

18.  It is the Father’s case that Mother disregarded the Consent Order made by HH Judge C K Chan on 22 September 2016 and behaved in a way that severely obstructed his access with E.

19.  Father complains about Mother’s uncontrolled behaviour that is abusive and intrusive towards him, which has obstructed and interrupted his access time with E.  He drew attention to the fact that such abusive behaviour started around May or June 2017 when he was enjoying weekly staying access.  Such behaviour increased during video call access as a result of which he had to suspend video call access arrangements by April 2018. 

20.  Since then, Father says that E developed a progressively deteriorating trend of behaviour towards him and perceives him as a “common enemy” with the Mother.  Father also says that the quality of access, being mostly at the PCC, progressively deteriorated over the last 4 years to a point of failure.  This is despite his best efforts to rectify E’s belief that he is dangerous and monstrous.  

21.  It was the Father’s case that he had been willing to compromise by consenting to the reduction of access time voluntarily as well as with the 2018 Variation Order.  He says he painfully endured these compromises “for the proper mental development of E”.

22.  The Father has sought to argue the relevance of parental alienation in this case and brought this up at the PTR, but I directed that as there is no independent expert evidence on this topic, I would be unable to rule on the issue of parental alienation.

23.  Over a number of social investigation reports and clinical psychologist reports prepared over the last 7 years, the social welfare officers and the clinical psychologists could not determine the real cause of the E’s near complete rejection towards the Father.  Thus, besides the issue of variation of access, the Father also sought for the following ancillary issues to be considered:

a.   Whether the Mother had exerted abusive and intrusive behaviour towards the Father and in front of the Child which had severely obstructed his access with the Child?

b.   Whether the Mother ought to make certain undertakings to prevent this type of abusive behaviour from repeating during and outside access time?

c.   Whether the Child should attend psychological therapy and counselling with a view to reduce and manage rejection and attitude towards the Father?

d.   Whether the Mother should attend psychological therapy and counselling with a view to (i) reduce and manage the level of abusive attitude and behaviour towards the Father, especially in front of the Child; (ii) display a genuine level of support on the Child having access with the Father; and (iii) genuinely foster a strong and healthy relationship between the Child and the Father?

24.  Although Father recognises that a dramatic change in access times with E is “currently very difficult”, he believes that without an order for a “more longer-term access goal”, the Mother will continue to disregard her responsibility to assist and to foster a good relationship between E and himself.

25.  The Father’s open proposals are thus as follows: -

(1)   For a “longer term goal” for defined access, he proposes weekend staying access, weekday dinner access, daily electronic access, liberty to take E to overseas trips etc. This is in an effort to help restore the necessary bond between himself and E;

(2)   To appoint a Parental Coordinator to facilitate quick resolution of the parties’ disputes and misunderstandings, so that restoration of quality and meaningful access can be achieved sooner;

(3)   He offers to bear the cost of any psychological therapy and counselling session that E and / or the Mother participate in, as recommended by any clinical psychologist of the Social Welfare Department or PCC, as they consider suitable, appropriate or necessary;

(4)   …., and

(5)  He also seeks a number of undertakings from the Mother, mostly focusing on her facilitating access, promoting relationship between E and him, and refrain from speaking ill of the Father.

26.  Father in his oral opening says adamantly that access should be unobstructed and uninterrupted, and that all he wants for E is to experience and receive love and to learn from her “capable and well educated father”.  He asks for the opportunity to participate in her life and to act as a responsible father in her upbringing. 

27.  At the end of the trial, parties were given 28 days to file closing submission, Father has not done so.

The Mother’s case and open proposals

28.  Mother relies on professional views of the social welfare officer and clinical psychologist to support her position that she has not exerted any abusive behaviour towards the Father.  She points out that the three Social Investigation Reports (“SIR”) describe her as having been facilitating access and cooperating with the PCC and the social welfare officer to explore possible alternative for access.

29.  Mother also says that, in any case, it is not necessary to make a factual finding of whether or not she acted abusively towards the Father, because all reports prepared by the social welfare officer and the clinical psychologist is against increasing access time in favour of the Father.  Her counsel submits the following as reasons:-

(1)   E is persistently and intensely resistant towards the Father;

(2)   E’s resistance includes refusal to leave home for access; repeated and vigorous yelling, screaming, crying and trembling; and/or hiding from, ignoring, or assaulting the Father;

(3)   E’s heavy attachment to the Mother and regression behaviour;

(4)   While the reports could not provide a definitive answer to the cause of the E’s serious negative impression towards the Father, it can be observed that the Father has been unable to meet the E’s psychological needs; he exerted a tough attitude when the E was emotional during access.  The dispute between the parties might have also fuelled the E’s impression of the Father;

(5)   The Father rejects professional opinions from the clinical psychologist and does what he considers as beneficial to himself;

(6)   To allow the Father’s access to E or to take E away from the Mother will only worsen the negative impact on E’s impression of the Father, mental health and mental development.

30.  The Mother also criticises that Father requested the 4^th and 5^th SIRs in the hope of persuading them to change their views.  However, the reports continued to and even more strongly recommend against increasing access.

31.  The Mother’s open proposals are as follows:-

(1)   To vary down access times;

(2)   To revise undertakings for the purpose of facilitating interaction and bonding between the Father and the Child;

(3)   Parties and the Child to explore the possibility of undertaking “Reunification Therapy”.

32.  Her counsel in his oral opening proposes to adopt the SWO Mr Lee’s recommendation of biweekly access at the PCC and in the alternative, put forward the suggestion of suspension of access.

The issue

33.  Ultimately, the issue before me is whether it is in E’s best interest for the access order to be varied to give increase time to Father.

34.  For the record, I do not consider the issues raised by the Father set out in paragraph 22 herein to be relevant for the determination of the Father’s application before me.   

35.  However, I will also consider what other measures best serve the E’s interest in the near future.

The law in Hong Kong

36.  As a starting point, the guiding principles governing an application concerning a child are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which says that:

“GENERAL PRINCIPLES

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

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

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

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

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

For the avoidance of doubt s 48 C Matrimonial Causes Ordinance, Cap 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the best interests 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).

37.  In looking at the meaning of “first and paramount consideration”, the explanation by Lord Mac Dermott from the case of J v C [1970] AC 668 at 710 cited by DDJ A Tse (as she then was) in the case of E v F [2018] HKFC 130 at §50 is most helpful:

“it seems to be that they must mean more than the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby; when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare …”

38.  The “Welfare Checklist”, i.e. a list of factors under the English Children Act 1989 in the UK, has been a useful guide for our Courts when considering what is in the best interest of children.  These factors are not to be utilised mechanically and judges may cherry pick those that are most relevant. (H v N (children: variation of interim order) [2012] 5 HKLRD 498) The list of factors are:-

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

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

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

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

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

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

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

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

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

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

(k)  the range of powers available to the court under the 1989 Act in the proceedings in question;

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

39.  As for the right of access, the Court regards it as the right of the child, not a right of the non-custodial parent.  Hence, considering the child’s best interest, it may be appropriate to refuse access from the non-custodial parent if the child will be adversely affected by it (per Hon Godfrey VP in W v I [2000] HKCA 374).

The Reports

40.  As mentioned above, there have been a number of reports prepared over the course of these proceedings.  There are 5 SIRs since August 2016 (respectively 27 August 2016, 4 July 2018, 6 July 2021, 11 October 2021, and 13 June 2022), of which the latter three were prepared by Mr. Lee who gave evidence in Court.  There are also psychologist report prepared by Ms Wu dated 29 June 2018, and a clinical psychologist report prepared by Ms Chu dated 13 June 2022 (collectively the “Reports”); Ms Chu also gave evidence in Court.

41.  Excerpts of the Reports appear below.  Generally, I find both Mr Lee and Ms Chu to be credible witnesses.  I am particularly impressed with Mr Lee’s engagement with and insight of the family dynamics and situation through his oral evidence. 

42.  I also find Ms Chu’s evidence to be helpful but my disappointment lies in the fact that she said she has tried every method she knew how to help E and do not know what to do with her next.

What has been happening at Access

43.  The most succinct and visual description comes from the latest SIR dated 13 June 2022 (“June 2022 Report”) at §18:

… 從社會工作主任的觀察，E經常聲嘶力竭地面對F先生，反映她並不樂於進行探視。E在探視其間的情緒表現極度反覆，尤其在疫情後恢復的探視，可就是已到達歇斯底里的程度、情緒失控至聲淚俱下和全身發抖的狀況在探視過程中多次出現。若這種情緒狀態一再持續，恐怕對E的心理發展和精神健康帶來巨大的負面影響。(my emphasis)

Phone contact

44.  E has refused to respond to Father’s attempt at audio and video contact.  Father had resorted to sending recorded messages to her through Mother, according to Mother and reported in the SIR dated 6 July 2021 (“July 2021 Report”), the following is the E’s reaction at §8:

…. F先生幾乎每天也有多個語音信息通過她的電話傳送給E，每當收到他的訊息時，她便會讓E聽取及鼓勵她回覆，但E每次也表現抗拒，不停尖叫及嚷著「唔想聽」、「唔想講」等，有時甚至大哭起來。

Day Access at PCC

45.  Access has been taking place on alternate Saturdays afternoon at PCC, every time E goes there, she would demonstrate a lot of unwillingness to go into the room to meet with Father; and even when she finally did, there was either serious tension or limited interaction between the two:

… 當到達親籽薈時，E往往不願與L女士分離，並嚷著要離開或要求L女士陪伴她進入親子房間。即使L女士不斷鼓勵E合作或嘗試帶她進入房間交給社工及F先生，她也毫不理會，甚至大喊大叫及大發脾氣。(July 2021 Report at §10)

46.  Mr Lee reports at §10 of the June 2022 Report:

… 在L女士的陪同下，E能在親子房間與F先生進行活動，但她的情緒依然反覆，對F先生表現抗拒，拒絕與他接觸或獨處。...

47.  At an observation of access at PCC on 14 May 2022, Mr Lee reports as follows:

10. … 佐姑娘和F先生一起在等候區迎接她們，E一直坐在椅子上尖叫，並拉着L女士，表示不想進入親子房間。…

11. … 當F先生接獨遊戲道具時，E不斷尖叫，直至F先生放下道具，她才安頓下來。儘管佐姑娘和L女士不斷引導和鼓勵，E仍堅拒讓F先生參與遊戲，甚至大哭起來，… (§10-11 of June 2022 Report)

Evening Access

48.  E currently sees Father every Friday, this started with a dinner access and has over the years evolved to take place on the podium near the Mother’s residence.

49.  In the July 2021 report, this was what happened in May 2021:

16.  社會工作主任於2021年5月4日在晚餐探視前到L女士家中觀察E出門前的情況。L女士預早提醒E晚餐探視的時間，E多次表示「唔想去」。當L女士協助E換衣服預備出門時，她躲在飯桌下，又睡在沙發上，與L女士爭持，並重覆嚷著「唔想去」。經過L女士的一番努力，以不同方式引導E，花了大約二十分鐘，她才願意出門。… (§16 of the July 2021 Report)

50.  At an observation of evening access on 22 April 2022, Mr Lee went to the Mother’s residence and reported this event:

6.  社會工作主任於2022年4月22日在晚間探視前到L女士家中觀察E出門前的情況。E一直依附著林女士，未有與社會工作主任直接交流。L女士預早提醒E晚間探視的時間，E多次表示「唔想去」。當L女士預備出門時，E躺在沙發，又跪在地上，大哭大叫，與L女士爭持。經過L女士不斷地鼓勵 和引導，E 才不情願地出門，隨 L 女士一 起到平台公園。當F先生到達時 ，E立刻 躲於 L 女士背後，掩着眼睛和耳朵 ... E一 直依附着L女士 ，拒絕 與F先生對話或 接觸。儘管L女士不斷鼓勵E與F先生對 話和玩耍，E 不停叫喊和嚷着要回家。F 先生耐心逗 E 說話，強調自己不會傷害她，但E沒有理會，甚至情緒激動，多次用腳踢F先生的小腿，叫他離開。(§6 of June 2022 Report)

Discussion

51.  I have no difficulty in coming to the decision that the Father’s application must be refused.  

52.  In consideration of the E’s best interest, I believe more measures are required to alleviate the trauma she now experiences going into access with Father.

The View of the SWO Mr Lee

53.  In his first Report in July 2021, Mr Lee says that the Father does have certain realizations. However, I am not of the view that the Father has sustained this understanding.

32. ... F先生亦明白，他必須繼續保持耐心和正面的態度，學習處理E的反覆情緒和行為，細心了解E的情感和發展需要，逐步與E重建安穩的依附關係和情感聯繫，探視的模式才可望有進一步的進展，以達致他期望的獨立探視或留宿探視。(July 2021 Report at §32)

54.  In his second report in October 2021 (“Oct 2021 Report”), Mr Lee has this to say at §8:

8. … 社會工作主任及臨床心理學家則認為，F先生、L女士和E這個家庭系統是由三個關係組成，包括L女士與E、F先生與E和F先生與L女士。要平衡這個系統，不單只是L女士的責任，F先生也扮演著重要的角色，需要學習與E和L女士共建和諧信任的關係。... 可是從親籽薈社工於探視期間的觀察，以至在電話聯繫的過程中，F先生仍未能有效掌握和回應E的情感需要。當E出現反覆情緒時，F先生有時會擺出強硬的態度，令父女關係變得更對立，亦為E帶來負面的探視經驗。... F先生與L女士持續爭執，父母長期的緊張局面亦會令E對F先生產生負面觀感，甚至認為與F先生的聯繫是父母爭執的根源，令她抗拒與父親接觸。(my empahsis)

55.  I specifically recall one part of Mr Lee’s oral evidence when he talks about the weekday access at a podium near Mother’s residence.  When E sees both parents’ presence and see them talking to each other, she reacts more positively to Father’s presence.  This may be an indication that E needs to see the parents in a good terms, especially as she is very close to Mother.  On this point, Mr Lee emphasizes that for access to be successful, it is not just about Father and E, but also between Father and Mother, it’s a tripartite system, and each with important roles to play.  It is clear to him if the parents are in tension, E reacts negatively.

56.  In Court, Mr Lee says that Father would initially appear to be engaged and in agreement with his proposal but in a few days’ time, Father would then revert back to his own point of view and preferred actions.

57.  It is important to note that in his last June 2022 Report, Mr Lee no longer recommends the Friday access but only proposes to keep the phone access and bi-weekly access at PCC.  Regarding these proposals, he explains that on-going access at PCC is preferred as intervention by on site SWO will be available if needed.  He further comments that Father is unable to control or manage E by himself if she goes into hysteria reaction.

58.  At the end of cross examination, I asked Mr Lee whether the parents have a good understanding of the situation.  Mr Lee states that the issue with Father is his unwillingness to accept other people’s advice or change his views, therefore failing to see E’s needs, and only focus on what he wants.  He comments that Mother is willing to collaborate and listens to advice and will try to do what has been suggested to her; but she continues to be under stress as she is always suffering under the Father’s accusing finger.

59.  I accept Mr Lee’s evidence.  I further acknowledge his candour in his oral evidence and his efforts in guiding the parents and dealing with their differences.

The View of the Clinical Psychologist Ms Chu

60.  The view of the clinical psychologist was first captured in §28 of the July 2021 Report, this was her observation:

28. … 當談及F先生時，E表現相當抗拒，不願分享有關探視的經驗，對F先生的感受，以及對F先生抗拒的原因。朱姑娘表示，E對F先生積累了不少負面觀感，暫時未有相關定論和找出確實的成因。朱姑娘認為，E在每次探視前與L女士的角力，持續加深E對F先生的成見和探視的抗拒，過程亦令L女士感到很大壓力。

61.  The essence of her report in June 2022 describes E’s personality and her observations; while she is not able to place the reasons for E’s reaction to Father, what is most disturbing is that E seems to have regressed behaviour, she withdraws herself socially and is in an enmeshed relationship with Mother.  This actually echoes what the Mother said in her oral evidence that relatives observe that E behaves way below her age.  Ms Chu comments that E is also experiencing serious insecurity issues and as echoed in Mr Lee’s oral evidence, takes a long time to warm up to people. 

62.  Ms Chu holds a strong view that Father has to hold off on his conduct to allow for the E to recover.

23. F先生一直認為E對他的抗拒主要是受到L女士的影響，即使本人曾經向他解釋E的成長及她與父母的關係怎樣影響她，卻未能擴闊他去理解探視問題的角度，相反，他更用力去證明他的觀點正確。當本人嘗試與F先生討論在探視時他可以怎樣回應E的抗拒行為，以改善E與他的直接經驗時，他就表示自己可作的甚為有限，這樣的要求對他並不公平；他一直認為，需要改變的是L女士。F先生認為L女士不能好好控制自己的情緒，會因受壓而發脾氣是她本人的問題，會因此影響E就更加不對。對於L女士的難處他表現得難以認同，反而指出他自己的壓力更大。他並且認為需要以法庭盼令去管制L女士的不當行為，這也是他今次向法庭作出申請更改探視的原因。F先生表示有考慮過繼續訴訟對E可能帶來負面的影響，但為著最終能幫到E的福祉，他認為作為負責任的家長就需要這樣做。過去，在討論如何解決探視困難時，本人曾經提醒F先生，激進的改變可能會為E的心理帶來創傷，然而F先生認為本人不應該只著眼於風險而忽視改變可能帶來的益處，而且他認為本人所擔心的只是假定的結果。與F先生溝通的過程中，本人體驗到F先生傾向主觀，對於相信的事情他不易動搖，也不容易接易別人意見或作自我反省，他認為是對的或有益的就會努力去達成，甚至不理對人（E）的影響。假若F先生繼續以這樣的態度去處理他與E及L女士的關係，恐怕父女間的關係會更難重建。(my emphasis)

63.  What is pronounced is that if this is not done, it is her view that the E’s emotion social and mental health will suffer.

25. … 若果在她不想或未準備好的情況下要她與L女士分離，她的恐懼不安伴隨抗議及抗拒自然會更加強烈，而她粘著母親的情況亦會越嚴重，而近月E更倒退到想要停留在幼兒階段，退縮及焦慮/抑鬱的行為亦比以往嚴重，情況確實令人擔心。假若在探視的問題上繼續向E施壓，恐怕只會將她迫得做出更極端的反抗及退縮行為，對她的情緒、社交及精神健康造成更負面的影響，甚至影響她的正常生活。有見及此，本人認為現階段當以協助E重建安全感為目標，好讓她的情緒行為得以恢復到其年齡水平。另一方面，林女士亦需要調整她與E的關係，協助E建立合適的獨立自主，使她可以安心地與母親分離，與其他人建立連繫。與此同時，L女士需要學習更好地處理她的壓力及情緒，以免繼而影響到E。為此，本人建議E及L女士繼續接受臨床心理治療。

26. … E的情緒及心理健康為現時首要處理的問題；要幫到E，避免她的心理狀況繼續惡化，他必須停止在探視問題上繼續施壓。以E現時的心理狀況及父女關係，要實行到F先生向法庭申請的探視安排絕不可能。而以頒令去向L女士施壓，亦只會延續一直的惡性循還。另一方面，為了讓E與父親有連繫的機會，F先生應該繼續獲得介定探視。然而，F先生需要調整他對探視的期望及目標，他應當著眼於自己如何向E表達關心及體諒，而不是著眼於探視的頻次及長短，或其他人有沒有盡力。

27. … 本人希望F先生盡量嘗試去了解E的想法，尊重她的感受及意願，知所進退。同時，亦希望F先生多聆聽及採納他人的意見，避免一意孤行地做出會為E帶來負面影響甚至可能傷害的決定。(my emphasis)

64.  Father in his cross examination of Ms Chu accuses her of being biased and in favour of Mother, this was denied.  His line of questioning echoes his criticism of the Mother, specifically of her inability to control her emotion and her low threshold to handle pressure; Ms Chu’s answer to this is that Father is the one who is causing the Mother’s suffering.  She further reiterates that Father will not listen to any suggestion from her.

65.  When cross examined by the Mother’s counsel, Ms Chu repeats her view that imposing more access and perpetuating Father’s conduct will only negatively impact E, who will continue to resist even more vehemently.  She emphasizes that what is priority now is to foster the E’s sense of security, trust and appropriate level of independence. 

66.  I also accept Ms Chu’s professional views with regard to E’s mental state and the possible risks going forward; save for my decision regarding access in the immediate term as elaborated below.

My view of the Father’s position

67.  I have the benefit of seeing Father gives evidence in Court, he acts in person, is fluent in English and ably presents his case.  He says in his opening that all he wants is to have an on-going relationship with his daughter.  I do not doubt for a moment that he loves E, and his intention well meant.

68.  However, what comes through clearly at trial to me, is that he has no insight whatsoever as to how his conduct is affecting his daughter.  He thinks only he is right and everyone else is in the wrong.  He is only intent on blaming Mother for everything that is happening between E and him, and bases his whole case on his allegation of the Mother’s conduct.  He also believes that his way is the right (and probably the only) way, and says he refuses to be dictated by E’s behaviour; therefore he imposes his own wishes on E with no apparent sensitivity to her emotion, needs and reactions.  The following is in the October 2021 Report:

6.  F先生認為現行探視的時間並不足夠讓他與E改善關係，他要求增加探視的時間和次數，令他有更多空間與E接觸，逐步建立依附關係。他相信E對他的抗拒表現是受到林女士的負面影響，亦認為探視的進程不應再被E主導，即使她表現抗拒或情緒反覆，各方也必須樹立強硬的態度，例如安排L女士離開親籽薈，讓E獨自與他留在活動房間，在沒有L女士的介入下，即使E出現情緒也只是短暫痛楚。他認為讓E突破現時框架，以至衝破她的舒適區，才有望達至獨立探視和留宿探視的目標。(my emphasis)

69.  The Father position is further elaborated in the following excerpts from the same report:

9. … F先生亦明白現階段未能與E獨處，但認為探視的進程不應被E的抗拒表現主導，甚至建議以較強硬的方式讓E與他進行獨立探視和留宿探視。(my emphasis)

But Mr Lee comments as follows:

… 社會工作主任及臨床心理學家認為此舉只會加深E對F先生的抗拒和負面情感，甚至令E不再願意接觸F先生，以及為她帶來不能預計的心理衝擊。F先生應多從E需要和角度出發，伴隨E的步伐，逐步與她建立正面和信任的關係，獨立探視及留宿探視才有望能進一步實行。(October 2021 Report at §9)

15. F先生表示，E的年紀尚輕，自己亦未曾傷害過她，認為她對自己的負面情感和對抗態度是受到L女士的離間。他認為E多年來已受L女士的負面影響，令她失去與父親相處的機會。因此，探視的進程不應再因E的抗拒態度和情緒反應一再拖延。…

17. … F先生認為E的對抗態度是受到L女士的影響，多年來父女的關係不進反退是L女士的責任。L女士則認為F先生長期的進迫態度、挑釁行為及漠視E的感受等令E感到害怕和反感，令父女的關係每況愈下。

18. … F先生認同現時的探視質素並不理想，但他認為E是受到L女士的影響，因此探視的進程，以至獨立探視和留宿探視的安排，不應再被E在探視的表現和狀態主導….  (§§15, 17 and 18 of June 2022 Report) (my emphasis)

70.  Father’s cross examination of Mr Lee, Ms Chu and Mother demonstrate his focus on pointing outward to other people’s faults, and shows a serious lack of self-reflection of how he has contributed to today’s predicament in his relationship with E.

71.  I do not accept Father’s intransigent views that he knows what is best and that he should take over the reign and not be led by the E’s reaction to him.  Father clearly does not understand that increasing the quantity of access does not necessarily lead to increase in its quality.  My view is supported by both Mr Lee and Ms Chu as contained in their reports and oral evidence at trial; it is both their opinions that Father is not willing to take advice on how he should be approaching his time with E.  E’s excessive reactions to Father need to be guided by professional hand; forcing one’s way forward will only result in more negative reactions, and may harm her further in the long run.  What is disturbing to me is that Father is oblivious to all this.

About the Mother

72.  Mother comes across as caring and genuinely concerned about E’s mental state.  The reports repeatedly say that she has been consistently co-operative, and willing to try different ways of engaging with Father.

73.  Mother repeatedly states how stressful she has been in dealing with accusations from Father, managing E’s resistance to him, while dealing with her grave concerns over E’s regressive behaviors.  She was also stressed when there were litigations over reduction of maintenance payment. 

74.  Father focuses his allegations against Mother, criticizing her for emotionally abusing and manipulating E, and for being a bad role model for her, these are denied.  At the trial, he has subjected her to a rather lengthy cross examination based on transcripts of recording during video sessions he had with E which took place back in late 2017 to early 2018, when Mother accompanied her on the video calls.  Father accuses her of losing her control and using abusive language at him during the calls, and he claims that this has affected his relationship with his daughter. Mother’s oral evidence is that if those words were uttered, it was prompted by Father and must be read in context of the conversations.  She agrees that those interaction could have affected E, but this took place 5 years ago, and is no longer happening.  Counsel for the Mother reminds this Court that Mother has given an undertaking in September 2018 not to physically appear in or conduct extended conversation and give E and Father privacy in the video access.

75.  This appears to be the crux of the Father’s case against Mother, based on events that go back several years, but nothing more was put forward to support his case that Mother is ongoing obstructing his access and his relationship with E.  I must admit having observed the cross examination by Father, one can glean his critical attitude against Mother and how she must have been put under immense pressure in the recent years when blamed for E’s reaction to him.                   

76.  I accept Mother’s evidence and finds her to be a credible witness.

What should be the access going forward?

77.  In the assessment of this question, I have in mind the guidance of the abovementioned Welfare Checklist, in particular:

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

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

(g) any harm which the child has suffered or is at risk of suffering …

78.  It is distinctly apparent to me that what E does not need at this moment is further pressure to spend time with Father.  If any child spends every Friday evening and alternate Saturday afternoons screaming, kicking, trembling and crying in hysteria before going to access, I cannot see how this kind of reaction is not considered as harmful to her well-being.  Furthermore, I am very mindful of Ms Chu’s concern as to the long term effect on E’s mental state.  In my view, physical access time with Father now will therefore be detrimental to her best interest. 

Suspension of Access

79.  At the PTR to this trial, on reading the relevant reports before me then, I have made it clear to Father that while he has applied for an increase in access time with E, I am at liberty to go the other way.  I have also indicated to him that instead of going through the whole trial, money is better spent on helping E’s recovery.

80.  I have not forgotten that the question on suspended access is asked of Ms Chu at trial, and she feels that the Father-Daughter relationship will be affected if access is to be suspended.  I also remind myself that Mr Lee has only suggested a reduction of access to twice a month at PCC.  However, given all the evidence before me especially from the various reports, and oral evidence at the hearing, I am of the view that a period of hiatus is best so that all parties can recover and regroup, and to enable further professional help to be sought.  Therefore with E’s best interest in mind, I will order that Father’s physical access to E be suspended until further Order of Court.

81.  In considering the issue of access going forward.  I am very conscious that best efforts must continue to be made to ensure there are opportunities ahead for Father to mend his relationship with E.  Evidence is that Father and Mother and E are attempting therapy at Asian Academy of Family Therapy, and the Court needs to be apprised of the progress there.  In the alternative, there are professionals who offer family reunification programs.  The updated SIR to be called should contain information from the respective parties on this. 

82.  Father in his open proposal offers to bear the costs of psychotherapy and counselling for E, I intend to make an order for the parties to explore this option for her with a private psychologist/psychiatrist and set this up as a matter of priority, this is preferred because government appointment is taking place only once a month.

83.  I am also of the view that both parties need to have professional guidance on how to manage their inter-relationship and each with E going forward.  In this context, Father should seek assistance especially to learn how to listen to and be open and sensitive to E’s needs, and to place her needs in priority to his own.  As for the Mother, she will need guidance on how to help E to gain a sense of security, learn independence, and to deal with E’s regressive behaviour.  To this end I will direct both parents to seek consultation with private or government psychologist/psychiatrist.  I note that Father is willing to pay for Mother’s consultation or treatment in his Open Proposal and intend to hold him to this offer.

Calling the parties in

84.  I direct that the parties and the SWO Mr Lee to return to Court on 21 November 2022. 

85.  I seek to confirm the time frame for a full parenting course and Mr Lee told me that they are in series of 8 and can be completed within 6 months.

86.  I further inform the parties of my intention to order private therapy treatment for E which can be conducted more frequently than now with the government psychologist.  I also direct Mother to attend therapy; as Mother’s condition is less urgent than E, she can therefore use the government system, however if these sessions are too far apart to assist her, then she should also seek private treatment.  I say this as her ability to support E will contribute to the latter’s faster recovery.  Father confirms his open proposal and undertake to pay for such therapies for E and Mother.

87.  I made it clear to Father that seeking assistance to learn to manage his relationship with E is crucial in moving forward access with E; and invite him to give Court his undertaking to attend therapy for himself.  True to form, he said that he does not think he needs therapy himself, but he agrees to undertake to do so if it will give him access to E.  

Request for Undertakings

88.  At trial I told the parties to consider if they could agree post trial to mutual undertakings as to behaviours during access, I was informed by the Mother’s counsel that they did invite Father to respond to proposals but to no avail.

Cost

89.  Counsel for Mother has asked me to depart from the general practice for child matters and to order cost of this summons incurred after the second CDR on 31 December 2021 to the Mother.  Submissions were made with regard to the Father’s conduct which I accept.

90.  I have informed the Father at PTR that I will consider cost consequences if he insists on putting this whole matter through trial despite all the findings and recommendations from the updated reports.  I agree this is a case where I will depart from the usual practice, and make a costs order against the Father, but only relating to costs subsequent to the PTR date on 4 July 2022, and will include the costs of the trial. 

Orders

91.  Upon the undertakings of Father to (1) pay for E’s therapy with a private therapist, (2) pay for Mother’s therapy, and (3) to attend therapy himself which are accepted by this Court; the following Orders are made:

a. Respondent’s Summons is dismissed.

b. The Order of DDJ R So on 12 September 2018 be varied in that:

i.  Respondent’s physical access be suspended with immediate effect until further Order.

ii.  Respondent shall have remote access via Facetime or similar platform twice a month for not more than 15 minutes per time, at a time to be co-ordinated between the parties or with the assistance of a SWO.

c. E to attend therapy with a private psychologist / psychiatrist, costs to be borne by the Respondent.

d. Both parties to attend parenting courses at the Centre for at least 8 hours within 6 months from the date of this Judgment, the completion certificate is to be filed with the court once with 7 days of the certificate being made available.

e. Updated SIR to be called after 6 months from the date of this Judgment.  

f. Parental co-ordinator to be appointed only on resumption of physical access, costs to be borne by the Respondent.

g. Parties to return for a call over hearing on 13 July 2023 at 9:30am, any applications to be made from now till then shall only be returnable on or after this date.

h. Costs of this Summons from the date of the PTR 4 July 2022 be to the Applicant, to be taxed if not agreed, with certificate for counsel.  This is a costs order nisi to be made absolute within 14 days of this Judgment.

92.  It is directed that:

a. The Respondent to inform the Court the name of the psychologist/psychiatrist from whom he seeks therapy and the date of the commencement of such therapy within 7 days of such commencement.

b. The Respondent do provide his treating psychologist/psychiatrist with all the reports cited in paragraph 40 herein.