TSYV v. LWSV

FCMC 12681/2014

[2020] HKFC 273

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12681 OF 2014

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J U D G M E N T

( Leave to adduce further expert evidence and variation of access order and directions for children's maintenance and directions for compliance of undertaking and directions for appointment of parenting coordinator )

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1.  This is the hearing of 2 summonses, one from the Mother and one from the Father, in respect of the access arrangements for the 2 Children of the Family.

2.  By a summons dated 26 March 2019, the Mother applied for the following orders:-

(1)  Leave be given to the Mother to file a further expert psychological report to challenge the Psychologist Report dated 18 March 2019 prepared by Ms. Anita Leung (the Report). A set of the documents which have been given to Ms. Anita Leung together with the Report shall be provided to the psychologist to be instructed;

(2)  Supervised access by the Respondent to the children of the family be continued until further court order;

(3)  There be a hearing on the Father’s access to the Children with a PTR to be fixed in accordance with counsel’s diaries;

(4)  The expert report obtained by the Mother shall be filed with the court with copy of the report to be sent to the parties 7 days before the PTR hearing;

(5)  The Father do pay the outstanding fee in the sum of HK$44,400 to the supervisor Ms. Anna Wong forthwith;

(6)  The Father do pay the Mother a sum of HK$100,500 being the balance of the tuition fee of the Children payable pursuant to the Court Order dated 9 November 2017; and

(7)  Costs of the application be in the cause.

3.  By a summons dated 2 April 2019, the Father sought the following orders:

(1)  The requirement for supervision of the Father’s weekly access on Sundays to the Children of the family be lifted forthwith;

(2)  The Mother do forthwith comply with her undertaking made in the Order of 10 November 2018, as varied by the direction of the Court on 22 October 2018, that the parties abide by the recommendation of Dr. Anita Leung, namely that supervision of the Father’s access be lifted;

(3)  Ms. Wendy Woodhouse be appointed as the parenting coordinator;

(4)  The Father’s access to the Children be increased, to include staying access, for which time and frequency as the Court deems appropriate;

(5)  Time for service of this summons be abridged (if required); and

(6)  Costs of the application be provided for.

Background

4.  The Respondent (Father) is from a very wealthy family. The Petitioner (Mother) and the Father were married on 28 October 2006. They have 2 Children, a son (M) born in 2008 and a daughter (K), born in 2011.

5.  The former matrimonial home was in the Mid-Levels. The Father worked in one of his family’s companies in the Mainland. He would leave the former matrimonial home on Monday mornings and only returned to Hong Kong on Friday. There was no dispute that the Mother has been the primary carer of the Children since birth.

6.  In 2007 or 2008, the Mother began to take the Children to live with her parents during weekdays and only returned to the former matrimonial home over the weekends. In about September 2014, the Mother and the Children ceased to return to the former matrimonial home.

7.  On 24 September 2014, the Mother petitioned for divorce on mild allegations of unreasonable behavior, with a caveat that the Mother reserved the right to provide further particulars in the event of the Petition being contested. Throughout these proceedings, the Mother has complained about the Father’s allegedly inappropriate behavior towards the Children, whilst the Father has complained of the restrictions on access.

8.  In her Petition, the alleged unreasonable behavior included the Father’s behavior towards the children, namely:

“(ii) The [Father] only plays with the children and would not care about the children’s proper needs. He is not concerned about the education of the children because the family is wealthy to provide for and support them in future.

(iii)  The [Mother] finds the [Father’s] behavior not acceptable as he always makes jokes about his sexual organs with the children. The Petitioner finds it difficult to have a decent conversation with the [Father]…”

9.  Despite those allegations, the Mother stated in her ‘Statement as to Arrangement for Children” that the Father had reasonable access to the Children and proposed that this arrangement should continue [A1/6-7].

10.  On 30 September 2014, the Father filed his Form 4, indicating his intention to defend the Petition. However, there was no indication of his stance in respect of the Children in the Form 4 [A1/9-10]. The Father subsequently filed an Answer which was basically a denial of the Mother’s allegations. However, this prompted the Mother to file a Reply with full particulars of the alleged unreasonable behavior, including:

(1)  Shouting at the Mother in foul language;

(2)  Belittling the Mother’s friends and family;

(3)  Excessive drinking and his behaviour when drunk, including using obscene language towards her and urinating all over the former matrimonial home and the Children’s toys;

(4)  Obsession over and frequent reference to private parts and sexual organs in front of the Children;

(5)  Inviting the Children to touch his private parts;

(6)  Deliberately changing the wording of children’s stories to make reference to sexual organs;

(7)  Asking the Children to look at his private parts;

(8)  Making up a game to remove clothing of dolls and playing with the dolls’ private parts;

(9)  Providing the Children with an excessive amount of sweets and at inappropriate times;

(10)  Telling the Children that there was no need to study as his family was extremely wealthy and that the Children would be well provided for;

(11)  Using vulgar language in front of the Children;

(12)  Obsession with toilet humor; and

(13)  Encouraging excessive gaming and spoiling the Children with expensive toys. 

11.  By a summons dated 4 December 2014, the Mother applied for maintenance pending suit for herself and interim maintenance for the Children. On 8 December 2014, on a without prejudice basis, the Father agreed to pay a sum of $150,000 per month as interim interim maintenance and $65,000 per month as legal costs provision pending disposal of the Mother’s summons [A1/27-28]. The summons was then fixed for argument on 31 March 2015.

12.  On 15 December 2014, the Mother took out an urgent application for the provision of a further $150,000 per month as rental of alternative accommodation for herself and the Children (the Mother’s 2^nd MPS summons) [A1/30-31]. This was because the Mother received a message from the Father that the former matrimonial home had been rented out and she was asked to move out all her belongings and the Children’s belongings before 22 December 2014.

13.  On 17 December 2014, it was agreed that:

(1)  The Mother and Children would move back into the former matrimonial home;

(2)  The Father would give at least 24 hours advance notice before he enters the former matrimonial home, including the earliest time of arrival, length of stay and latest time of departure.

14.  The Mother’s 2^nd MPS summons was also fixed for argument on 31 March 2015. 

15.  Although the Mother alleged that the former matrimonial home was a wedding gift from the Father’s parents, there was no dispute that the registered owner of this property was a company within a family trust. In his Affirmation in opposition filed on 16 March 2015, the Father explained that the former matrimonial did not belong to him and that he only had a license from his family to live there. He pointed out that the Mother and the Children only stayed there over the weekends even during the marriage. Since the parties separated, the Mother ceased to visit the former matrimonial home. He stated that his parents had decided to rent out the former matrimonial home because it had been left vacant since September 2014 and the Mother changing the door lock after she moved back in.

16.  Apart from dealing with financial matters, the Father complained about the Mother’s refusal to allow him to have access to the Children in the former matrimonial home. He was only allowed to have access to the Children in his parents’ home. This was denied by the Mother. She says that she had made every effort to ensure proper access for the Father. She asserted that the lock had to be changed because the Father had threatened to return to live in the former matrimonial home, had been very abusive towards her, which caused her to fear for her own safety.

17.  On 31 March 2015, the Mother agreed to amend the Petition and withdraw her Reply whilst the Father agreed to not to contest the main suit. It was further agreed that the Mother and Children would move into alternative accommodation and the quantum of maintenance pending suit would be increased to include rental of the new premises.

18.  On 7 May 2015, the Father took out a summons for access to the Children on M’s birthday. In his 2^nd Affirmation, the Father explained that he had already given undertakings to the Mother:

(1)  That his mother would be present throughout access;

(2)  That he would not make inappropriate jokes in the Children’s presence;

(3)  That he would feed the Children appropriately

19.  The Father says that despite those undertakings, the Mother has insisted on being present during access. She also insisted on access taking place in a public place, namely the Hong Kong Jockey Club. The Mother even insisted on having a “professional” third party present during access. He complained that he had not had access for over 3 months.

20.  In opposition, the Mother complained that the Father has persisted in the behaviour set out in her Reply and that is why she was very concerned about unsupervised access. Through correspondence, the Mother raised the issue of the Father’s mental health and asked him to consult a psychiatrist. She also stated that she has taken the Children to meet the Father at the Jockey Club but the Father has chosen not to attend. She agreed to the Father having access to the Children on M’s birthday but asked that such access be supervised by an independent third party and argued that the proposed access of 9 hours was too long for young children.

21.  On 11 May 2015, the Father was given access on M’s birthday from 12 noon to 7 pm, subject to a number of undertakings:

(1)  That the paternal grandmother will be present during the access;

(2)  That the Father will not consume alcoholic beverages during the access; and

(3)  That the Father will engage an entertainer for the birthday party during the access.

22.  The parties also acknowledged that:

(1)  the domestic helpers who attend to the Children under the employment of the Mother were at liberty to accompany the Children during access;

(2)  The access was not restricted to the Hong Kong Jockey Club; and

(3)  The Mother shall leave after handing the Children over to the Father at the Jockey Club.

23.  In addition, the Father was given telephone access to the Children every Wednesday at 7:30 pm and Sunday at 9:45 am.

24.  On 15 June 2015, the Father was given further defined access, including holiday access upon the following undertakings:

(1)  The paternal grandmother or other responsible adult will be present during access;

(2)  The Father will not consume alcoholic beverages during access;

(3)  The Father will not make inappropriate jokes with the Children;

(4)  The Father will feed the Children appropriately;

(5)  The Father will not spend excessive sums of money on toys or games for the Children.

25.  It was again acknowledged that the domestic helpers employed by the Mother were at liberty to accompany the Children during access but the Mother would have to leave after the handover. 

26.  This was followed by a dispute in respect of the Mother’s wish to take the Children out of the jurisdiction to attend a wedding. In his 3^rd Affirmation, the Father again complained about his restricted access to the Children. On 10September 2015, the parties eventually came to an agreement. By consent, the parties were granted joint custody of the Children with care and control to the Mother and defined and supervised access to the Father. The Father agreed to the Mother taking the Children out of the jurisdiction to attend the wedding, whilst the Father was given access every Sunday and over the school holidays, as well as telephone access twice a week upon the same undertakings and acknowledgments.

27.  On 16 December 2015 and by consent, the Father was given defined access for Christmas upon the same undertakings.

28.  By a summons dated 3 February 2016, the Mother applied for leave to take the Children to Korea for a holiday. The Father agreed to the proposed holiday but wanted additional access, including unlimited Skype access. The Mother objected to the proposed unlimited Skype access.

29.  On the following day and by consent, leave was granted to the Mother to take the Children to Korea. The Father was given additional telephone access during the time that the Children are in Korea and additional access over the Lunar New Year holidays.

30.  By a summons dated 17 March 2016, the Father applied for, inter alia:

(1)  Staying access for one night in late March 2016 to take the Children to Disneyland;

(2)  Skype access twice a week;

(3)  To be added as an additional point of contact for the Children’s school; and

(4)  To be updated on the Children’s school results and events and extra-curricular activities.

31.  The Mother agreed to most of the relief sought in the summons, except for staying access. An order was accordingly made for additional access, electronic access and school information.

32.  In her 10^th Affirmation, in opposition to staying access, the Mother informed the Court that instead of taking the Children to Disneyland as stated in the order dated 21 March 2016, the Father took them to Ocean Park until 4 pm. After Ocean Park, the Father took the Children to the paternal grandparents’ home and played video games until 9:15 pm. She also explained that she had grave concerns about the Father’s sexually inappropriate behavior towards the Children. She asserted that on 18 October 2015, she was informed by one of her helpers that during one of the Sunday access periods, the Father lifted up the skirt of a doll again and touched its private part in front of the Children, The Father’s brother saw the incident and told his helper to remove the doll.

33.  The Mother’s solicitors recorded her complaint in a letter dated 23 November 2015. In reply, the father’s solicitors stated that “our client smacked a doll as part of a game with the children”. There was no denial of the incident or that the Father’s brother had the doll removed [A1/199].

34.  In mid January 2016, the Mother saw a video taken by one of her helpers attending access that the Father had twisted the daughter’s foot into an unnatural position for her foot to be placed in the Father’s lap, directly on his private parts for a long period of time [A1/200].

35.  The mother’s solicitors complained about this in a letter dated 17 March 2016. The only reply she received from the Father’s solicitors was that she should have raised her complaints in January 2016.

36.  The Mother asserted that there was other evidence of the Father’s sexually inappropriate behavior [A1/201]:

“14. …The [Father] has always been playing with sexual organs and makes jokes about it. He is obsessed with this sort of things. He used bad and gross words and associations with private parts as “jokes” and “games” which he plays with the Children. He would draw on the Children teaching black board at home showing butts with poos poos falling down. One of my maids, [MG], told me, when we were still living together with the [Father] at the matrimonial home, that when [MG] went into the master bedroom to check on the Children. She saw the [Father] had taken off his pants exposing his butts and his private parts to the Children. The Children were there watching the [Father].

15. Another maid, [J], told me that when she was feeding [M] at the table, the [Father] came over to them and he pulled down his pant to show his butts to [M]. [J] also said to me that sometimes, the [Father] would ask [M] to come over to him and touch his private parts standing in front of [M]. It was lucky that [J] stopped [M] from doing that.

16. The third maid, [N], also said similar things to me that the [Father] had asked the Children to look at his private parts and told them to look at it telling them it is very big. The [Father] would keep mentioning the word “Jer! Jer!” to the Children and would shout aloud this word at home.

17. When the [Father] played with the Children, he sometimes would pick up the dolls or teddy bears. He would take off their pants or lift up their dresses and played with the private parts or the butts of the toys in front of the children. The [Father] would talk about the penis, the boobies, boobs and boobskies. He would deliberately make fart in front of the children and he turned his butts to them and farts. When the children were singing the theme song from the Disney’s cartoon Frozen, the children would sing “let it go! Let it go!” the [Father] would change it to “Let it fart! Let it fart!” When the Children was singing “Dora! Dora!” The [Father] would sing out loud as “Jer! Jer!”.

37.  In addition, the Mother alleged that the Father was persistently in breach of his undertakings. Despite constant correspondence between solicitors on this subject, the Mother says that her concerns have not been addressed. She says that she has asked the Father to consult a psychiatrist for the benefit of the Children since 2014. Since the Father was unwilling to receive treatment, she consulted Dr. Lynette Bandeira in August 2015 about the Father’s behaviour towards the Children. A copy of Dr. Bandeira’s report was produced.

38.  Dr. Bandeira’s report dated 20 August 2015 was prepared solely on documents and she did not have the benefit of speaking to any of the family members. Dr. Bandeira was of the view that in the event that the Mother’s allegations were founded, there would be serious concerns regarding the impact on the Children. She advised [D/2-3] that:

(1)  The Father may benefit from receiving some parenting training to learn about behavior appropriate with young children;

(2)  Given the unusual and rather serious nature of the sexual behavior, it may be helpful for the Father to undergo a full psychosexual assessment by a Ph.D level psychologist with experience in this area;

(3)  In the interim, it would be helpful for the Father to consider seeking psychological guidance from a Ph.D level psychologist to provide support in exploring the motivation behind the behavior;

(4)  The allegation that the Father exposed himself and asked the Children to fondle his private parts is alarming. At the very least, this suggests extremely poor judgment and lack of understanding of socially acceptable behavior. If this did occur, the Children must be protected from its reoccurrence. Contact between the Father and the children should be supervised until the issues can be addressed;

(5)  It would be helpful for the parents to seek guidance from a play therapist to assess the impact of the divorce on the children and to provide support;

(6)  Alcohol intake should be limited when the Children are in the Father’s care.

39.  In his 5^th Affirmation, the Father, he denied the Mother’s allegations. He also criticized the Mother for her production of Dr. Bandeira’s report without leave of Court. As for toilet humor, he stated:

“11 …Perhaps [the Mother] was in a dilemma whether to reveal that Dr. Bandeira had advised that

4…It is very normal for children around the age of 6 or 7 (especially boys) to find “toilet humour” very entertaining, and not inconceivable that a father would make frequent reference to this genre of humour in an attempt to entertain his son”

12. I accept that [the Mother] does not approve of my humour or the childish language I use when with the children. She is irritated when I use such words as “fart” or “poo-poo” or “jer jer”. Perhaps I am immature because I still find toilet humour entertaining when it makes our children laugh. However, I deny that I am perverted or have behaved improperly, whether sexually or otherwise, towards the children who I love very much and would not hurt in any way.

40.  By a summons dated 26 May 2016, the Mother asked for access to be suspended forthwith unless and until a closely and properly supervised access is arranged and approved by the Court. In support of this application and apart from her own Affirmation, the Mother filed the Affirmation of a Ms. Lam (Lam), the Children’s tutor.

41.  According to Lam, the daughter said that the Father is always saying bad words. During access, they only play video games, watch television and YouTube and eat junk food. The daughter also alleged that the father showed her videos of butts, armpits and private parts. On 11 May 2016, the daughter told Lam that she would take a bath during access and that sometimes the Father would take off his clothes and go into the bathtub with her. During these times, the Father would touch her private parts. Lam immediately informed the Mother.

42.  In addition to the above mentioned allegations, the Mother deposed to further particulars of the Father’s alleged inappropriate behavior, including drawing a face on his underpants and wearing it on his head, covering an ornament at home with his underpants and having Skype access with the Children whilst urinating in a public toilet. The Mother sought legal advice but decided not to report to the police as she did not want the daughter to go through an investigation and have to relive the incident. She also did not want to see the Father prosecuted. Only the Social Investigation Officer was informed. The Mother said that she was concerned that the Father was unable to control his own behavior and about the future safety of the Children. The Children have already been affected by the Father’s behavior, for example, the son has been touching the Mother and the helpers’ breasts inappropriately. She says that wants the Father to seek help.

43.  On 2 June 2016 and by consent, it was ordered that:

“1. AND UPON [the Father] acknowledging and agreeing that without prejudice to argument, and final resolution of [the Mother’s] summons of 26 May 2016, [the Father’s access to the children of the family …be suspended until supervised access by a neutral third party has been agreed and arranged by the parties as provided for in paragraph 1 below.

2. AND UPON [the Father] acknowledging and agreeing that the solicitors for the parties shall arrange to meet Ms. Hung…on 8 June 2016 to consider if she is an appropriate person to supervise the access and thereafter to report back to the Court:

IT IS BY CONSENT ORDERED THAT:-

1. Without prejudice to argument, there be defined access supervised by a neutral third party to be agreed by two parties…

44.  On 17 June 2016, it was by consent ordered that:

(1)  Subject to Dr. Lynette Levy Bandeira accepting the instructions, she be appointed as the Single Joint Expert for an assessment on the family;

(2)  A clinical psychologist report from Dr. Lynette Levy Bandeira shall be produced and filed in court on or before 29 July 2016…

45.  In his Affirmation filed on 29 June 2016, in opposition to the Mother’s summons, the Father stated that during the marriage and since separation, he had relatively little time with the Children. He wanted whatever time he had with the Children to be fun. He was a simple and easy going person and liker the Children, enjoyed silly toilet humour. He knows that the Mother disapproves of this but he does not consider that there is anything wrong with being child-like and enjoying life from the perspective of the Children. The Father categorically denied the bathtub incident described by Lam and the Mother and explained why it could not have happened, especially with the Mother’s helpers spying on him. He only agreed to supervised access in order to be able to continue seeing the Children. Despite his agreement and only having one supervised access on Father’s day, his access was unilaterally stopped by the Mother. He says that the Children are aware that they are being photographed and video-taped during access, reports are made by the helpers to the Mother and that the Mother disapproves of his behavior.

46.  The Father stated that on the advice of his legal team, he has consulted Dr. Peter Lee and a psychologist report was produced, which stated as follows:-

“12. [The Father] seemed eager to inform me of his condition, feelings and viewpoints. Periodically, he appeared hurried and pressured in his speech. At time, he stuttered and was not able to express himself fully. I noted that his vocabulary in expressing himself and particularly his feelings were rather limited. In terms of mood, he seemed mildly depressed and tense. He was emphatic that he never harboured any evil intentions towards his children. He also expressed anger towards his ex-wife for her “untrue” allegations against him…

14.  His accounts of his background, feelings, and thoughts remained consistent across the different sessions. His concentration and focus were unimpaired. He was orientated to time, place, person and circumstances. He had intact cognitive and memory functions although he seemed not a particularly bright person. He did not present with symptoms suggestive of any psychotic disorder. He was not paranoid. He did not harbor thoughts of persecution. He did not have any unusual sensations or perceptions. However, he admitted to having depressed mood and had consulted psychiatrist for treatment …

24.  With regards to the children, he felt his wife tried to “frame me”…He has always loved his children very much…

25.  He had very little time to spend with the children. He habitually worked in Mainland through weekdays and returning home only towards the end of the week. Even when he was home however, his wife might still be spending time with her own parents and the children would not always home when he was there. With so little time, [the Father] had tried to maximize his time with the children to make them happy. Given that he accidentally made his son laugh and enjoy their “silly” talk about farces, urine and farting, jer jer, etc”, he found it enjoyable to engage in rounds of such talk with his son while both parties tried to escalate the fun by adding adjectives…He admitted to not being aware of any sense of indecency and undue influence on the children. He also admitted that part of him had deliberately engaged in such topics with the children as defiance towards his wife who had kept telling him off for “talking retarded things with the children”. He admitted that “I talked dirty because I hate her and because she told me not to”.

...

28.  In relation to his children, [the Father] was emphatic that he never had even the faintest of sexual interest in children, least of all in his own children. He had never entertained sexual fantasies towards young boys or girls. In fact, since separating from his wife, apart from the initial period when he missed her, with subsequent increasing bickering and “unreasonableness”, he felt deeply victimized and had lapsed into a depressive state with much reduced sexual interest. Prior to seeing me, he had been consulting a psychiatrist for medical treatment of his depression…

…

30.  In terms of personality, [the Father] indicated that he has always been a simple and boring person. In university, he had no interests and no friends. He did not even consume any alcohol then. His main interest was a periodic browsing of car magazine. However, he was emphatic that he has all along been a good person, never harbouring any intention to harm or do bad things. He is generally kind and is seldom harsh to others. He sees himself as a person who does not hold long-term grudges, will definitely not scheme against others or do any harmful things.

…

34.  [The Father] was adamant that he never harboured any ill intentions regarding what he was accused…

36.  He had never helped out in his daughter’s bath in his parents’ home. Not to mention taking off his clothes, touching or bathing with her. He noted that there were always two maids with her daughter (except for the recent one month when one maid was present).…

37.  In relation to his talking about “vulgar” things with the children, he was always mindful of “mom telling us off for talking about retarded things”. However, he admitted that he had no sense of indecency or undue bad influence to his children. He also noted that he would talk more the more his ex-wife told him not to.

38.  He reported that as his son was growing up, he had noticed some undesirable behaviours which he had not taught or influenced him. For example, some time back in 2012, he had seen his son touch the private part of his mother and kissed the maid’s breast. He also saw his son shaking his lower parts in an obscene manner, quite likely something he had learnt at school. His son had also “attacked” his private parts from behind him, but instead of being angry, they both laughed. His wife was there and told his son off for doing such a bad thing. He was emphatic that “I never invited my son to touch me”

39.  He admitted that there was an incident when he was drunk and reportedly he had urinated into his children’s toys. However, to date, given so many other allegations, he was not even sure if his maid had “framed” him or not as being drunk he had lost all memory of his behaviours at that juncture.

40.  He noted an incident when he and his son were totally focused on playing video games and he was not aware that his daughter who was present had put her foot near his private parts. He asserted that he was only too focused on watching his son play video games and had no notice where his daughter’s foot was. He was emphatic that he had no evil intention whatsoever.

41.  He admitted that he took the phone into toilet when he was talking to his children. However, this was because it had become so uncertain whether or not he could reach his children as the time allowed for him to call was so restrictive. At that juncture, he feared he would miss the chance to talk to the children and would rather do so despite having to answer his call of nature at the same time. However, he did admit that he did not see anything sinister in talking to the children in the toilet despite that it was a video call…

46.  [The Father’s] psychological and emotional makeup was assessed further with three psychological tests, namely the Minnesota Multiphasic Personality Inventory (MMPI) and the HARE. His level of intelligence was tested on selected subtests of the Wechsler Adult Intelligence Scale…The tests results are detailed below:

…

The MMPI

54.  Across the clinical scales, [the Father showed elevated scores in the depression, paranoia, schizophrenia, and social introversion subscales. The results are in line with clinical assessment. He has an elevated depressive score and indeed has been seeing psychiatrist for help. Under the current circumstances, with a strong feeling of “being framed” by his wife with multiple allegations against him, it is understandable that he would have a low level of trust, along with a high level of suspiciousness and sensitivity specifically assessed by this scale. He showed a mildly elevated score on the schizophrenia scale. The score reflects a degree of idiosyncratic thinking, atypical views about himself and the world around him but not that he was suffering from a schizophrenic disorder…

THE HARE Psychopathy Structured Interview and Checklist-Revised (PCLR)

57.  As far as could be gathered from his developmental personality profile on detailed analyses, [the Father] did not evident of having any propensity or indications of inherent criminality, antisocial personality traits, recklessness or personality or sexual deviations. Indeed, analyses on his personality characteristic striving and aspirations, as well as adulthood lifestyle showed no previous or current indications of psychopathic personality deviation or dangerousness.

…

Wechsler Adult Intelligence Scale III (Chinese Version)

59.  …It is noted that [the Father] has a predominant sub-average level in various tests of significance. While the full battery of IQ test was not administered, overall his cognitive intellectual standing is estimated to be at best within the low or dull average level of intelligence although he does not suffer from any frank mental retardation. However, he has impaired abstract conceptual thinking with a score at the low 16^th percentile of those of his same age range. He has a sub-average level of general information which is consistent with his prior poor academic attainment. He has impaired logical sequential reasoning, with a standing at the low 16^th percentile of the typical individuals of his same age. Logical sequential reasoning is important in helping an individual to understand and anticipate cause and effect of various actions, foresee consequences of one action versus another, understand how events develop and evolve, thereby enabling the person to make intelligent and well considered choices. [The Father’s] score on the test indicate a low capacity for such functions….

61.  [The Father has inadequate parenting skills. Complicated by the very brief duration of time he has access to his children, his generally low intellectual standing, poor ability to see cause and effect, and with generally concrete rather than abstract thinking ability, some of the allegations were likely due to misunderstanding of his intent or ineptness in appropriately fathering his two children.

62.  I had not been able to detect any obvious risk or tendency of indecent sexual urges and abusive behaviours towards his children. As noted, he had been consistent, forthcoming throughout with little sign of hesitation and guardedness…I have to conclude that I was not able to find any evidence to indicate that [the Father] ever had or has any evil sexual intentions towards his children.

63.  [The Father] has a dull average level of cognitive functioning. His poor parenting skills, lack of sensitivity and awareness, plus sub0average intellectual resources may have contributed to his ineptness leading on to the current misunderstandings and complaints particularly when there is no much unfortunate animosity in the background.

64.  It would be helpful for [the Father to be given coaching on parenting skills. I have discussed my suggestion with him, and he accepts and is open to receiving help. He is eager to be able to spend more time with the children, even under supervision when he is still under suspect.

65.  To help assure adequate father-children bonding in the long-run, particularly when the parents are of such different values and backgrounds, ample time for visits and shared activities need to be ensured so that each parent would be enabled to nurture their own secure bond with their children ad thereby hopefully the children could get the best of both worlds (from each parent. This is particularly so as [the Father] is agreeable to seek formal help to improve his parenting skills.

66.  A prompt, authoritative, and clear guideline from the Court is deemed of utmost benefit to prevent further uncertainties and stresses not only on the parties concerned, but more importantly on the children who needs a safe, predictable and cordial parenting environment to grow and function despite breakup of the parental marriage.”

47.  In a report dated 27 June 2016, the Social Investigation Officer reported:

15.   …Observed during home visits and office interview, [the son] was a happy, friendly, energetic and active boy. He shared that he had a big family…He told that he disliked his father saying dirty jokes and made big shopping when they were together. And he said he needed to ask his mother if he was asked to have sleep-over at father’s abode…

18.   Observed during home visits and office interview, [the daughter was a happy, friendly, attentive and polite girl…

19.   Two observations were conducted during handovers and father’s access in May 2016. In the first observation, [the daughter] was happy and ran to the father when they met…In the second observation, [the daughter] stuck to the mother for a while before going to the father. During access time, [the daughter] interacted naturally and warmly with the father…

….

22. Although she was very worrying, [the Mother] told she still encouraged the children to attend the access so as to let them keep in touch with their father. However…She felt putting the children in risk of harm when she encouraged the children to attend further access.

23.   [The Mother] told that, after the first access supervised by the neutral third party on 19.6.2016, [the daughter] told her that the father kept asking and talking to [the daughter] in the presence of the neutral third party about the incident she revealed to her private tutor…. [The Mother believed that the father had no judgment and not care about the children by kept asking and talking to [the daughter] about a sensitive topic. And she though the father ignored the interest of the child. [The Mother] felt that she betrayed [the daughter] by putting her alone to face the difficult questions raised by the father.

24.   [The Mother] did not think that the father could benefit from any parenting course, in particular that she worried he might have limited or borderline cognitive functioning as suggested by the private clinical psychologist he attended earlier. She said she even did not expect that the father could render any parenting to the children, she only hoped that the father would not have adverse influence or bad modeling on the children.

25.   To [the Mother], she not only disagreed with staying access, she strongly believed that the future access should be supervised so as to stop father having any further inappropriate behavior.

26.   [The Father] opined that the mother put her anger towards him to influence the children and this would affect the children’s normal development. For example, he said that he felt [the daughter] had a different attitude towards him after resuming access on 19.6.2016, her response to him became cold and detached…he thought that the mother put [the daughter] in a difficult situation by influencing her mind. He believed that the mother wanted the children to separate from him, and thus she tried to put him under disadvantaged situation by accusing him having touched [the daughter’s] private part. He thought that there was a strong need for him to clarify the accusation, which he strongly denied…He furthered that, with the urge to clarify the accusation, she asked [the daughter] directly when they met on 19.6.2016. The Reporting Officer explained to him of the possible stress he imposed on [the daughter] and the possible adverse influence on her, and he seemingly showed understanding.

27.   For those sexually inappropriate behavior as claimed by the mother, [the Father] said that he put a underpants to cover the status which [the daughter] scared of and he gave them Skype call when he went to a public toilet, but he did not let [the daughter] touch his private part intentionally. He said that he just wanted to make joke to ease [the daughter’s] fear and to cheer up the children, and [the daughter] just rested her leg on his thighs and might have touched his private part accidentally. He said he made jokes with farting, wee-wee or boo-boo in the past with an intention to cheer up the atmosphere but not to cause any harassment. He said he understood it would be inappropriate to have such jokes with children and he had improved himself.

28.   [The Father] agreed that he had to improve his parenting skills and child caring skills, such as setting boundary and rules to children, arranging more structural activities for children instead of free playing at grandparents’ home, and limiting his material rewards and gifts to the children. He also agreed that the neutral third party could be a resource person to give him guidance and assistance on parenting skills and child caring skills.

29.   [The Father] stated that he wanted to participate in his children’s life, but not only a playmate to the children on Sundays, so he wanted to escort the children to activities and to pick them up from school…He maintained that he loved his children, and he wanted to have staying access so that he could have more time with them, and the children could also have more family time with grandparents…

30.   [The grandmother] was the children’s paternal grandmother. As stated in the Court Order, she had to be present during the access. In her opinion, the access should be for the benefit of the children, but it now became a dispute among adults. She thought that the ongoing litigation was costly and stressful to all parties. She did not want to be involved in the dispute. She felt that [the Father] was weal in disciplining his children because he was also childish in character. She believed that he bought them fast food and lots of toys so as to please the children and to make them happy. As she believed that he made jokes with farting or underpants was intended to make fun but not having any kind of psychological problem or mental problem. She sometimes gave advice and assistance on his parenting and child discipline, such as limiting their candies and suggesting them to have outings instead of free playing at home for hours. Nonetheless, due to language barrier and possible influence from the mother, [the grandmother] felt it difficult for her to assist in parenting and disciplining the children. Regarding the issue of staying access, [the grandmother] thought it should be the preference of the children instead of the preference of the adults. She would be happy to assist if the children wanted to stay overnight and she would not insist if the children did not want to.

31.   [MG] was the mother’s domestic helper…She became the only helper to accompany the access after another helper left the family in January 2016…In her view, the father was a good person but sometimes behaved inappropriately by making dirty jokes to the children. And he always bought them fast food for meals… 

33.   It is no doubt that both of their parents love and concern about them. Nevertheless, the disputes between the parents over the issue of access arrangement have been escalating.

34.   On one hand, the mother is very concern and alert of the father’s behavior especially his control over sex related jokes and behavior. She strongly believes that the presence of responsible adult is required to safeguard the interest of the children…The happening of the incident that [the daughter] disclosed in May 2016 that his father touched her private part during her bath when they resided at the former matrimonial home further arouse serious concern from the mother. And a neutral third party is thus being employed to supervise the access.

35.   On the other hand, the father states that he does not have any intention to make harassment or harm on his children, and he made jokes with farting, wee-wee, boo-boo or underpants was to make fun, and he strongly denies having touched [the daughter’s] private part. He regards that the mother tried to put him under disadvantaged condition and to separate him from his children. He is eager to maintain the access arrangement, and to further extend access. And he agrees to receive service to equip himself with better parenting skill caring skills.

36.   While the case is pending for clinical psychologist report, the presence of a neutral third party during access at present stage can serve not only supervising the access, but also to guide the father in parenting and child caring, and is thus recommended. Moreover, it would be more appropriate and expedient to consider extending day access to overnight staying access when the father can equip with improved parenting and child caring skills to the extent that he can be more independent to handle access…”

48.  Both parties objected to the social investigation officer speaking to the neutral third party. Instead a statement from this third party was filed. She confirmed that [the son] was basically playing video games throughout the access. The children were again lavished with toys and given fast food.

49.  As a result of the Father questioning the daughter about her allegations, the Mother suspended access. The Father also refused to provide the audio recordings he took during access.

50.  By a summons dated 6 July 2016, the Father applied to not only enforce the supervised access but also for general staying access.

51.  The SJE report from Dr. Bandeira was filed on 30 August 2016. According to the report:

“7. [the Mother reported that her current concerns mirror those she had when she remained married to [the Father] and were the primary factor in contributing to her initiation of separation.

8. During their marriage, [the Father frequently made references to private parts and body functions to the children. Aside from the inappropriateness of this behavior, [the Mother] was also concerned about the frequency of the comments and the contexts in which they were made (substituting words in [the son’s] homework or in songs). She indicated that there have been allegations that [the Father] also exposed himself to the children and asked them to touch his private parts. Although she raised these concerns with him throughout their marriage, [the Father] paid no heed and continued the behavior, indicating that he does it to make the children laugh.

9. According to [the Mother], her concern for the children in terms of repeated exposure grew throughout their childhood, and she became alarmed when the children began to copy their father in making inappropriate comments…

10. When access resumed in April 2015, [the Father] gave an undertaking that he would not consume alcohol during access, would feed the children properly during their time with him, and would tell no inappropriate or sexually related jokes. The undertaking resulted from [the Mother’s] concerns, which include:

- Frequent reference to private parts ad body functions

- Putting underwear on ornaments or on his head

- Using the bathroom while Skyping with the children

- Making sexual references using crude language

- Lack of restrictions/monitoring of programmes or websites visited by the children

- Comments to [the son] that his mother is trying to put him in jail.

11. [The Mother] indicated that despite the undertaking, [the father was unable to refrain from making inappropriate comments in the presence of the children even while under supervision of his parents or family.

12. [The Mother indicated that [the son] has been showing worrying signs of modelling the father’s behaviour. For example, he can suddenly burst out with “my penis” (with no context) while running around and playing with other children. He makes frequent references to body functions and [the Mother] is concerned about the impact of this behavior on [the son’s] social functioning. His previous teacher raised the concern that [the son] had been observed to touch his penis in the bathroom in the presence of other children.

13. [The Mother] indicated that she feels less anxious regarding what the children are exposed to since access has been supervised, although she voiced concerns about the effectiveness of the current supervision. She gave the example of the recorded incident in which [the Father] questioned [the daughter] on her allegation about his touching her private parts, which was done in the presence of the supervisor who did not intervene…[the Mother] expressed a great deal of concern regarding the children’s safety should access be unsupervised or overnight access be implemented.

14. [The Mother] indicated that [the Father] loves the children and does not set any limits or boundaries with them, often deviating from routine or rules that have been put in place. He has historically been unreceptive to her attempts at discussing the subject, with the result that her own ability to parent the children has become undermined…

20. [The Father indicated that his relationship with [the Mother deteriorated after they married. He feels that her claims regarding his behavior are exaggerated and self- serving, and believes the allegations raised by [the daughter] were a means to prevent him from gaining staying access with the children. [The Father] explained that although he has made various comments and jokes with the children, they were typically isolated incidents…that he enjoyed toilet humour and admitted that he does occasionally go too far…

21. [The Father expressed the view that the use of toilet words and words referring to private parts…in jest is acceptable for boys but not for girls. He reasoned that regardless of whether he used this language in front of [the son], he would have picked it up as he has made comments such as “fat jer-jer” or “stinky jer-jer”. [The Father was frank in indicating that he has also been told by his own parents to curb such language in the presence of the children. However, he emphasized that [the son] likely learned this language in school and through watching programmes that other children his age watch.

22. With regard to his questioning of [the daughter] following her allegations, [the Father] indicated that the incident was very painful to him as [the Mother] speaks negatively of him to the children. He is very worried that without clarification to [the daughter], she may always wonder whether this event occurred. In order to exonerate himself, he questioned [the daughter] with the social worker and helper and made a recording of the conversation…

25. [The Father] described the children as being less compliant with him due to the influence of [the Mother]. He indicated that he has no rules in his home and he chooses not to shout or discipline them as he feels very sorry to them because [the Mother] selfishly chose to divorce him. He feels he has done nothing wrong and the children are suffering as [the Mother] pursues her own agenda…

26. [The Father’s] results yielded a number of elevation on clinical scale. Individuals with similar profiles tend to be isolated, suspicious, and distrustful of others, believing that there is a concerted effort by others to undermine them. They often exhibit impulsivity and poor judgment, and may be hostile towards others. Responses suggest that [the Father] perceives himself to be experiencing significant stress and events over which he has little control. There is likely a pessimistic outlook, impaired decision-making and a lack of stable and supportive relationships as there may be difficulties in interpreting social nuances. Responses also reflect signs of alcohol dependence, which may contribute to the exacerbation of the above characteristics. [The Father] provided answers that suggest he acknowledges the difficulties in his own functioning and the perception that he is in need of help for these issues.

27. Given the nature of the current matrimonial proceedings and issues contained therein, it would not be unexpected that an individual would exhibit the above characteristics due to situational stressors. However, the magnitude of the elevations suggest that these issues extend beyond the current situation, and may instead reflect factors of [the Father’s] personality and general outlook on life. On a positive note, he appears to acknowledge the need for help.

28. [The Father’s] responses on the PRQ reflect the perception that his bond with the children is insecure. He appears to view that there is poor communication, problematic levels of parenting confidence as well as high levels of parental stress and frustration related to the children’s behavior. Parenting style is overly permissive, and pattern of scores suggest a low level of concern or interest in disciplinary aspects of parenting…

31. [The son] expressed some feelings of unhappiness over the divorce of his parents…[The son] believes that while his father has many good qualities, he can sometimes exhibit behavior that is considered to be inappropriate…

32. [The son] was able to describe the behaviours he believes to be inappropriate, including exposure to programmes that are not age appropriate and humour involving toilet functions or private parts. [The son] has taken it upon himself to discourage his father from engaging in this behavior at times, particularly as he finds it embarrassing when [the father] behaves this way in public. There was some ambivalence regarding access as [the son] noted that – in addition to the above – the duration of access is long and he often feels bored as video games and television are the only activities in which he can engage. He spoke positively of access being supervised as he reflected that the presence of [the supervisor] leads to [the Father] being more vigilant in self-monitoring.

39. …[The daughter]…provided descriptions of [the Father’s] behavior that she finds inappropriate that were consistent with the information given by [the son]…

40. [The daughter] indicated that she enjoys the time she spends with her father during access although she also noted that she finds it to be boring at times. She spoke positively of access being supervised as there is someone to play with when [the supervisor] is in attendance. [The daughter] also commented that [the Father] exhibits more self-regulation with regard to inappropriate verbal comments when access is supervised…

47. …The children generally remained in [the Father’s] room for the duration of the observation, primarily with [the son] playing video games and [the daughter] watching television…Although [the son] was generally compliant with his father’s requests, [the daughter] tended to ignore – or openly disobey- [the Father] and he made no attempts to gain her compliance, giving up when she was unresponsive to is requests or directives…

48. [The Father] remained in the room with them for most of the time, attempting to engage [the son] in his video game from time to time. Although both children complained of being bored, they rejected [the Father’s] suggestions of toys…

49. [The Father] was affectionate with the children and attempted to entertain them or make them laugh on various occasions. However, engaged in the video game and television, they were not responsive and very little interaction took place between the children and their father. Physical affection was one-way and the children’s body language suggested that they were uncomfortable when [the Father] hugged them…

50. [The Father] made a number of comments that were noteworthy as they suggest a lack of insight regarding appropriate discussions with –or in the presence of- young children. As one example, [the Father] sat next to [the daughter] and commented that she used to be affectionate and happy to see him, but he has seen a change recently…[The daughter] was clearly aware and listening to his comments, and [the Father] was redirected twice by the undersigned before his comments were curbed. There were other comments that were similar and [the Father] showed no awareness of the children’s obvious discomfort.

51. The undersigned was provided with four audio recordings of [the Father] questioning [the daughter] about her allegations that he touched her private parts and showered with her. In this process, [the Father] badgered [the daughter] for an answer and asked leading questions, his tone clearly indicating whether he was happy or unhappy with her response. [The Father] showed no awareness that she was intimidated by this process, searching only for her denial that the incident took place. At one point, [the Father] attempted to bring [the son] into the conversation, and expressed his displeasure when [the son] skillfully avoided participation.

52. Although it is understandable that [the Father] is very distraught by the allegations and desperate to exonerate himself. A direct conversation such as this would yield little of value in terms of information and has the potential of causing a great deal of emotional harm to a young child who likely perceives it as a verbal attack. It will erode trust in adults ([the Father] as well as other adults in whom she confided) and placed her in an untenable situation….

55. [The Father] exhibits a pattern of engaging in a variety of socially unaccepted behavior and comments despite having received feedback against this from multiple sources. Although he indicated that he engages in this behavior to make the children laugh, the concern is that it has become a repeated pattern which has endured- in some occasions even when under supervision, demonstrating poor judgment, impulsivity, and a lack of awareness of expected behavior. Moreover, being aware of the situation, the children have reportedly asked their father to stop this behavior, but to little avail, suggesting little empathy on [the Father’s] part.

56. In spite of the repeated discussions regarding the inappropriateness of his behavior, [the Father] continues to feel he is being victimized by [the Mother] and accepts little ownership for his own part on the process. The above suggests that [the father] either i) has little insight or understanding that this is inappropriate or offensive, ii) that he cannot control himself or iii) that he purposefully does not heed the advice or feedback of others. All of the three possibilities raise concerns.

57. As an example, it is clear to all that [the father’s] jokes about flatulence have become a highlighted part of these proceedings, causing great concern to [the Mother]. However, during one of the interview sessions with the undersigned, [the Father] showed a number of pictures of himself and his children, and highlighted one where [the son] is trying to fart taken in a crude pose. Of note, hundreds of other pictures were also made available for the undersigned to review, but he chose this one in particular to use as an example of the children being happy with him, suggesting a lack of awareness.

58. In another example, [the Father] indicated that at times, [the son] would sit on the sofa beside him and stretch his leg to rub [the Father’s] private parts (although his pants were on). [The Father] indicated that he did not stop him as [the Mother] was not present. It does not appear that there is any awareness that this is not only inappropriate, but could constitute sexual abuse.

59. Although many children do find “toilet humour” amusing, adults are generally somewhat tolerant of it but will guide the child that this is not socially acceptable. We would expect toilet humour to come from children with the adult redirecting and teaching them, but it is not expected to repeatedly be generated by the adult, particularly as children learn through modeling. Further, [the Father] expressed that he feels this type of humour is acceptable for boys and noted that [the son] would have picked it up anyway, citing examples of language [the son] used in his presence. These comments suggest that [the Father] does not view his behavior as inappropriate and has very little insight regarding the possibility that [the son] did, in fact, pick the language up from him. He also indicated that this form of humour is not acceptable for girls, in spite of his having made many comments in [the daughter’s] presence.

60. Results of continued exposure to this type of behavior will affect the social skills development of the children, leading to difficulty or even ostracization within the school and social settings. [The son] is already exhibiting this behavior and it has been ongoing and resistant to redirection for some time.

61. By the children’s own report, [the Father’s inappropriate comments make them feel embarrassed and uncomfortable. They reported feeling more secure when the access is supervised, suggesting that there is indeed a negative impact on them.

62. There is an inherent safety concern as well. It is imperative that the children be able to construct firm boundaries around their body and privacy so that they can protect themselves, as a child with blurred boundaries is vulnerable. For example, if [the daughter] feels that discussion and jokes about body functions and private parts is “normal” as she sees it from her father, she may not see anything wrong with another adult – such as a teacher- making similar comments or touching her inappropriately, which would clearly be deemed abuse. It can affect her judgment and ability to keep herself safe.

63. As adults, we universally teach children about “stranger danger” to keep themselves safe. They are instructed to let a parent know immediately if someone makes them uncomfortable verbally or through touch. When this person is a parent, confusion is apparent and undermines their ability to protect themselves in other situations.

64. There appear to be various allegations of inappropriate touching and exposure of private parts by [the Father] to the children. If this is indeed found to be true, then the concerns regarding his behavior would be further elevated to fall within the category of contact (touching) and non-contact (exposure) child sexual abuse. However, given the potential impact on [the daughter], these allegations should not be further pursued in any manner that involves her.

65. [The Father] also lacks insight or judgment that certain subjects when broached with a child can be harmful, with his questioning of [the daughter] a strong example of how this can be damaging to a young child.

66. From a discipline perspective, neither [the son] nor [the daughter] respect [the Father’s] authority and tend to either ignore or disregard him. [The Father’s] own views on rules within the household and parenting need to be addressed as he is noted to have a very primitive parenting style, with few rules or guidelines. Children need rules, no matter how infrequently a parent sees them. Rules teach children what is expected of them, what is acceptable, and boundaries. It also makes them feel secure – something children of divorce very much need.

67. There appear to have been instances whereby [the Father] chose not to have access to the children as he did not agree on the venue proposed by [the Mother] or when she insisted on accompanying the children. Further, his comments during the interview suggest that he blames [the Mother] for this lack of contact with the children, even though it appears to have been his choice not to attend, seeing this as a sacrifice on his part. Clearly, this raises concerns regarding – among other factors –his priority in contact with the children, the lack of empathy for the children, acceptance of ownership for his own behavior, and also with regard to the extreme level of hostility towards [the Mother].

Recommendations

Overnight Access

68. In light of these concerns, neither overnight access nor increased access are currently recommended.

Supervised Access

69. As a result of these concerns, supervised access should continue for the foreseeable future for the following reasons:

- The children’s physical and emotional safety need to be ensured;

- [The Father’s] lack of awareness and poor judgment make the children vulnerable to further inappropriate comments or behaviours. Supervised access can contribute to restricting these comments or immediate intervention when they are observed;

- [The Father’s] comment that he did not stop [the son] from rubbing his private part as [the Mother] was not present raises concerns regarding the potential for inappropriate behavior in unsupervised conditions;

- [The Father] needs parenting advice on how to structure access to maintain the children’s interest and grow the parent-child relationship. He also needs guidance on appropriate parenting, discipline, limit setting, and other communication. Attending a parenting class will only offer limited strategies, which may be forgotten or not implemented after the class. Having a professional on-site during access allows for a hands-on facilitative approach. Furthermore, [the Father]requires a great deal more directive intervention than can be offered through a parenting class.

Guidelines of supervision

70. There are a number of options that can be implemented to ensure appropriate supervision of the children. Given the logistical, practical, and cost considerations to ongoing supervision, creative solutions may need to be generated.

71. The current supervisory situation is inadequate.

- By her own report, [the supervisor] feels that it is not her role to intervene;

- The conversation with [the daughter] regarding her being touched by [the Father] was in [the supervisor’s] direct presence and there was no attempt to intervene. Even if she feels it is not her role to intervene, observation of a young child being placed in a position of such emotional discomfort/danger leads to the expectation that any adult (professional or otherwise) would act to protect her by discontinuing the conversation. Given that [the supervisor] is a trained professional, failure to terminate the conversation is alarming.

- there has been very limited communication between [the supervisor] and the parties in terms of feedback, which is deemed crucial under the circumstances of the case.

72. In light of this, the following possibilities can be considered:

72a. The family can consider hiring a full-time trained and qualified nanny (for example, through an agency such as Rent-A-Mum, etc), either on a full-time or access-only basis. The reasoning behind it is thus:

- Trained nannies have the skills and professionalism required to intervene with parents when necessary and are more alert to behaviours which are subtle but inappropriate;

- A nanny is trained to implement structure, routine, and discipline for children – [The Father] would very much benefit from that in order to improve the quality of access.

- The nanny would be someone who has daily contact with the children, so trust would be built, allowing them to feel secure;

- When the issue of overnight staying access is subsequently revisited, [the Mother] will have the comfort of knowing that the children are with someone whom she trusts as the nanny’s role would be to accompany the children on these visits.

72b. For similar reasons, a second possibility could be the hiring of a trained Teacher’s Assistant who can be available for access. Their training and background would likely also allow them to be effective supervisors, without the need for being employed on a full-time basis.

72c. Regardless of the profession of the supervisor hired, it is crucial that they have the ability to identify inappropriate behavior and the ability to address it directly with [the Father] or discontinue access if necessary.

Therapeutically Facilitated Access

73. It would be most beneficial for part of access to be therapeutic access rather than supervised access. Therapeutic access allows for a mental health professional to facilitate the access with direct intervention rather than merely observe it.

74. It should be undertaken by a qualified PH.D level psychologist as it is far more hands-on and specific to any issues that need addressing in the parent-child dyad. It is considered suitable for this case given the frequency and nature of [the Father’s] comments as well as the various other behaviours that are affecting the children. The view is that these behaviours (at times subtle and gard to describe) may be more readily obvious to a psychologist who can then immediately address the issue by clearly articulating why the behavior is not acceptable and also teach [the Father] a more positive comment in its stead….

77. Given the results of psychometric testing, [the father] may benefit from further mental health assessment (with the assessor being given full access to all information in the case) so that possible diagnoses-including the possibility of Tourette’s Syndrome 0can be ruled out, particularly if [the Father] has a history of tics. Tourette’s Syndrome is a neurological disorder characterized by motor and/or vocal tics that can present in different forms at various times in the individual’s life. One (low incidence) aspect of Tourette’s is a symptom called ‘coprolalia’, which is the uttering of socially inappropriate words, such as swearing or calling out names of private parts…

82.   A follow-up assessment of the situation and children’s well being should be conducted and a report produced before the issue of overnight access is revisited. It is vital that the children be ready for this next step before it is implemented , both for their own protection and the protection of the father/child relationship”

52.  The Father then filed a supplemental report from Professor Peter Lee dated 5 September 2016. According to the report, the father had presented himself for consultation upon legal advice and requested a full assessment of his intellectual capacity.

53.  After administering a full battery of the Wechsler Adult Intelligence Test, Professor Lee stated that the Father’s overall IQ as well as verbal and performance IQ were within the average intelligence range. However, the scores showed that he had an uneven profile of strengths and weaknesses across his performance on different sub-tests. His low scores in some of the subtests indicated inferior abstract conceptual thinking at the low 16^th percentile of those of his peers. He had a sub-average level of general information which is consistent with his prior mediocre academic attainment. He has inferior logical sequential reasoning, again at the low 16^th percentile of the typical individuals of his same age. Professor Lee explained that logical sequential reasoning is important in helping an individual understand and anticipate cause and effect of various actions, compare and foresee consequences of one action versus another, understand how events develop and evolve, thereby enabling the person to make intelligent and well considered choices. The Father’s score indicated an inferior capacity for such functions assessed the Father’s psychological and emotional condition. He also completed a full mental state examination as well as psychosocial and personal development assessment, covering the Father’s personality, recent life stresses, symptoms, distress, coping, perceptions, aspirations, family and work circumstances, as well as thoughts and insight. Professor Lee was of the view that the relative weaknesses in specific areas of the Father’s cognitive functioning, despite his overall average level of intelligence, have likely contributed to his lack of sensitivity and awareness, slowness in understanding, and poor alertness to details, leading to misunderstandings and complaints in his handling of the two children. It was thus pertinent that the Father avails himself of parenting training which would in due course enable him to more competently fulfill his earnest wish to provide positive fatherly care and support to his two children.

54.  The parties came to an agreement at the CDR, namely that there be joint custody, care and control to the Mother and supervised access to the Father, with terms which were aimed at removing supervision.

55.  The agreed Guidelines for Supervisors provided as follows:-

“1. In an appropriate situation you may require that the supervised access is brought to an end. To do this, you should inform [the Father] out of sight and earshot of the children. You should then telephone [the Mother] to arrange an early collection of the children.

2. In the event of [the Father] behaving in a way no reasonable parent should be behaving then advise him to desist and in the event of [the Father] not discontinuing then bring the supervised access to an end.

3. In the event that [the Father] is intoxicated at the start of the access, to refuse the access and immediately inform the mother.

4. In the event that [the Father] behaves in a sexualized way to the children, immediately curtail access and forthwith inform the mother.

5. If [the Father] makes what you consider to be inappropriate jokes to the children, then privately warn him to desist. If the jokes continue then curtail the access and immediately inform the mother. If you are uncertain about whether the joke is inappropriate, then you may consult the mother by mobile phone.

6. At the handing over of the children at the end of the access, to inform orally the mother briefly (a conversation of not than 5 minutes) as to how (generally) the access proceeded.

7. If the children become very distressed during the access, then consider whether it would be best for the children for the access to end.

8. If anything occurs during the access which you believe is potentially injurious to the children, then immediately consider terminating the access”

56.  Despite the agreement, further disputes ensued. On 9 June 2017, the Mother’s solicitors made the following complaints to the supervisors:

“Our client, [the Mother], has drawn our attention to the following incidents that took place on 28 May 2017 and 4 June 2017 respectively and has instructed us to write to you and express her concerns.

Incidents on 28 May 2017

1. [The Father] scratched the children’s backs under their tops. Please be informed that this is not the first time [the father] has done this and [the Father’s] action left scratch marks that were visible even after access was over. [The daughter] also reported to [the Mother] that the scratching by [the Father] could be painful at times. [The Mother] has instructed us to write to [the Father’s solicitors] to put on record her concern. Enclosed please find a copy photo showing [the daughter’s] back for your reference.

2. [The Father] talked inappropriately with the children. [Ms. Wong], the supervisor at that time, attempted to stop [the Father]. However, [the Father] refused to pay attention to her intervention and stated that Ms. Wong could not stop him doing what he wanted. Furthermore, he told her if there is any issue, Ms. Wong should speak to his lawyer instead. It is a matter of some concern that this incident was not reported to [the Mother].

Incidents on 4 June 2017

1. [The son] was shot in the eye by [the Father] with a nerf gun. Luckily no severe injury was inflicted. Our client trusts that it must have been an accident. However, although a nerf gun is just a toy, it fires pellets that can do harm if they hit on faces or eyes or sensitive parts. Any reasonable adult would take precautions when children are playing with such toys to make sure that the children are playing in a safe manner.

2. [The daughter] threw up after access on 4 June 2017 at [the Mother’s] home because she ate too much. [The Mother] was told by [the daughter] that she was pressured by [the daughter’s] paternal grandmother to eat, despite [the daughter expressing to them that she was already full. [The Mother] trusts that they have no ill intent but wishes to avoid similar events from happening.

In view of the above, it is clear that supervision is not being exercised appropriately. Supervision is in place for a reason – to protect the children. It would not be possible for the parties to set out all the scenarios in which the supervisors should intervene, but it is a matter of common sense that they are there to provide a safeguard for the children and it is their duty to act accordingly. It is obviously not acceptable that the Father ignores the supervisor’s intervention and tells her that he can do as he wishes, otherwise, what is the point of supervision and it is not acceptable that the supervisor does nothing about this. It is thus expected that the supervisors would exercise their judgment and take appropriate action to protect the children, terminating access if necessary.

Our client wishes to remind your good self that it is your duty to stop [the Father] from any inappropriate acts towards the children, report the same to our client and if necessary, you are given the power to withdraw the children from access at any time.”

57.  This prompted an email report from Ms. Wong, one of the supervisors, setting out a list of inappropriate behavior from the Father (including the scratching/rubbing incident mentioned by the Mother) and her attempt to terminate access. She also informed the Mother that the son was on his iPad throughout access [B4/1189-1190].

58.  The Father then decided to terminate the services of Ms. Wong unilaterally on 10 August 2017 [B4/1175]. When the Mother’s solicitors complained about this, the Father’s solicitors alleged that “we are not seeking your agreement [to Ms. Wong’s termination] which is not necessary”. Unsurprisingly, this response added fuel to the fire.

59.  Another dispute was in respect of the identity and role of the Father’s therapist during access.

60.  During the CDR, it was agreed that the Father’s therapist, Dr. Joyce Chao would attend 3 access sessions to observe and then comment on whether the Father was ready for unsupervised and staying access. It then transpired that the Father had not ascertained Dr. Chao’s availability prior to coming to an agreement. Dr. Amos Cheung was then suggested by Dr. Chao to observe access in her place. After some negotiations, the Mother agreed to the appointment of Dr. Amos Cheung.

61.  The Mother stated that during the CDR, she understood that the Father’s therapist would attend access to observe whether the Father was ready for unsupervised access. If the answer were in the positive, this would trigger a family assessment from the single joint expert, Dr. Lora Lee.

62.  In a letter dated 22 June 2017, the Father’s solicitors stated that the original intention was for Dr. Joyce Chao to attend access to observe. They confirmed that despite the change to Dr. Amos Cheung, there was no change in Dr. Cheung’s role as an observer.

63.  By a letter dated 2 August 2017, the Father’s solicitors informed the Mother that both Dr. Cheung and Dr. Chao would attend access on 4 August 2017 to observe. By a letter dated 4 August 2017, the Father’s solicitors confirmed that only Dr. Amos Cheung would attend access to observe.

64.  However, by a letter 11 August 2017, the Father’s solicitors informed the Mother that “the role of Dr. Cheung is not only to observe the interaction between [the Father] and his children; he has to deliver a training and treatment of [the father’s] parenting skill including but not limited to

(a)  Forming base line of [the Father’s] parenting skill; and

(b)  Training up [the Father’s] parenting ability…

(c)  Dr. Cheung’s presence for the observed access is not for counselling but have interaction with [the Father] and the Children”

65.  The Mother objected to the involvement of the Children in the Father’s training. By a letter dated 16 August 2017, the Father’s solicitors asserted for the first time that Dr. Chao and Dr. Cheung ere appointed pursuant to the recommendation of Dr. Bandeira’s report dated 30 August 2017.

66.  As a result of the above mentioned disputes, the Mother took out a summons dated 21 August 2017, asking for the following directions:

“(1) There shall be no unilaterally termination of any supervisors without the agreement of the parties or a Court Order;

(2) The two supervisors [Ms. Wong] and [Ms. Tang] shall, in principle, follow a “two weeks on two weeks off” schedule and adhere to the Guidelines to the Supervisor dated 11 July 2016. Both parties shall not interfere with the making of the schedule which should be a matter between the supervisors;

(3) Communications to the supervisors shall be made jointly;

(4) No therapy shall be provided to the children during access time or at any other time without the consent of both parents or order of the Court;

(5) The roles of Dr. Joyce Chao and/or Dr. Amos Cheung in relation to access or treatment of [the Father] be clarified…” 

67.  Eventually, on 10 November 2017 and by consent, it was ordered that:-

“A. AND UPON the parties’ agreement that the objective is to lift the condition of supervision on the Respondent’s access if recommended by Lora Lee (or another children psychologist appointed in her place.

B. AND UPON [the Father] undertaking to the Court and [the Mother] that as regards [the Father’s] access to the Children:-

(i) [The father’s] supervised access pursuant to order dated 2 June 2016 shall continue until further order;

(ii) The access session from 16 July 2017 to be attended by Dr. Amos Cheung and [the Father’s] parenting therapist on such other days as convenient to him;

(iii) At the end of Dr. Amos Cheung’s 3 access sessions (or such further occasions as are necessary for Dr. Joyce Chao in conjunction with Dr. Amos Cheung to form the view to be expressed in accordance with the paragraph below), Dr. Amos Cheung and Dr. Joyce Chao will inform [the Mother], [the Father] and the Court if they consider it appropriate that [the Father] might be given unsupervised access;

(iv) If Dr. Joyce Chao and Dr. Amos Cheung form the view that unsupervised access might be appropriate, Lora Lee, a child psychologist and therapist will make an assessment of the family for the purposes of preparing a report to parties and the Court as to whether access should be supervised and/or increased, and in doing so she may decide the extent to which she wishes to attend access sessions in order that she can make such an assessment;

(v) For the avoidance of doubt, Lora Lee shall be provided with all the papers already filed, and such other documents as she shall request.

C. AND UPON the parties agreeing that they will abide by the recommendations of Lora Lee, unless either makes an application to the Court otherwise.

IT IS HEREBY ORDERED BY CONSENT that:-

(1) [The Father’s] summons dated 6 July 2016 be adjourned since die with liberty to restore;

(2) No order as to costs”.

68.   The logistics in respect of the supervisors and experts were set out in a separate order of the same date:-  

Supervisor

1.  Written communication between the parties and the supervisors be joint. For the avoidance of doubt, the parties’ legal representatives shall not write to the supervisors unilaterally.

2.  Paragraph 6 of the Guideline to Supervisors as attached to the Order dated 11 July 2016 shall be complied with;

Observed access

3.  [The Father] be at liberty to instruct Dr. Amos Cheung to observe access in place of Dr. Joyce Chao, commencing with immediate effect, the next such session to be held on 26 November 2017;

4.  Dr. Amos Cheung be at liberty to give the Respondent instructions on parenting during the observed access but not within the hearing of the Children and not involving the Children in the father’s therapy. For the avoidance of doubt, Dr. Amos Cheung will be informed of his role pursuant to this clause;

5.  Dr. Amos Cheung and Dr. Joyce Chao be at liberty to confer;

6.  At the conclusion of 3 (or more if Dr. Amos Cheung considers is necessary) sessions of observed access, Dr. Amos Cheung in conjunction with Dr. Chao shall indicate whether they consider it appropriate that [the father] might be given unsupervised access;

7.  A report from Ms. Lora Lee, or a jointly appointed psychologist if Ms. Lora Lee is unavailable, thereafter be obtained on the issue of supervision and/or increase of access;

8.  The parties’ solicitors shall write jointly to the court within 14 days of the order herein to confirm the appointment of Ms. Lora Lee or to inform the court as to the identity of the psychologist jointly appointed in her place;

9.  In the event that the parties are not able to agree on the identity of the jointly appointed psychologist within 14 days, the respective nominations and the CVs of the nominees shall be provided to the court for direction;…”

69.  Dr. Joyce Chao then produced a report dated 25 April 2018. According to that report, the purpose of the referral was “for a clinical interview and treatment recommendations, to determine the nature and extent of [the Father’s] psychological distress and difficulties in regard to the divorce proceedings and the disagreements about the conditions of access to his children”

70.  Dr. Chao concluded in her report that:-

“17. [The Father] has impressed me as a kind-hearted, open and warm person. It appears that at times he has some difficulties responding effectively to social cues and social demands. It may be related to his permissive upbringings, thus lacking corrective feedback and social skills building. I have observed that [the Father] has shown improvement and progress in identifying and addressing his own weaknesses. He has shown better insight about his problems and limitations. He remains motivated to better himself as a parent.

18. Based on my clinical assessment and observation of [the Father], and collaborating report from Dr. Amos Cheung, there is no evidence of violent or antisocial traits. There is no evidence of personality disorders, delusion or psychotic conditions. There is no evidence of sexual deviant thinking, intent, plan or action.

19. The initial symptoms profile and functional impairments appear to be closely associated with a depressed mood state at the time, in reaction to coping with the stressful circumstance and major lift stressors of an unhappy marriage, and subsequent divorce and separation from his children. He is slowly adjusting to the new life. His symptoms and functioning have much improved.

20. I recommend that [the Father] continue skills building training on parenting, as he has verbalized intention to learn and improve his skills sets. Additionally, I would recommend that he continue counselling sessions that target relationship building, dating, expectations f intimate partner, and building close and meaningful relationship, as these skills may also benefit his adjustment.

21.  Given his positive progress in treatment and parenting training, his consistent caring attitude towards his children, and no known incident of abusive behavior towards his children during observed access, I would recommend that [the Father] might be given unsupervised access”

71.  Dr. Amos Cheung also produced a report in April 2018. He stated at the beginning of the report that he was aware of the various allegations concerning [the Father’s] parenting behaviours. Dr. Cheung stated that:

“56. During the first few months of the assessment and treatment, it was noted that [the Father’s] parenting styles towards his children were lax, lacking principles, and without any apparent direction. He tended to shower his children with materialistic items and gifts, believing that the monetary values of these gifts represent his love and commitment towards his children.

57. [The Father] acknowledged that he was also, in part, wanting to compete with his ex-wife regarding the position and importance in the hearts of his children. He wanted to make sure and impress his children that he is a kind and loving father, hoping to secure his relationship with them via these materialistic means.

58. [The Father] was initially unaware of the undue influence he might exert to the upbringing of his children, particularly his “bad jokes” on farting, faeces, and urination. He was only able to perceive his acts as defiance and opposition towards the “unjustified restrained” being put in place on the need of supervision during the access to his children.

59. As treatment progressed, it was noted that [the Father] was slowly getting the gist of parenting. In recent four months, he was more able to hold his temper in front of his children and expressed his discontent in a much more appropriate manner. He was betting in managing and responding to his own dissatisfaction due to his divorce, as well as the limitations being imposed on his children access more maturely. He no longer showered his children with unnecessary gifts and only purchased them on demand. Jokes on farting, faeces, and urination were no longer brought up by [the Father].

60. In addition, the dissatisfaction of his children towards the supervisors during access were also increasingly evident. The children, especially [the son], would at times attempt to lock themselves in a room, exclaiming that they did not wish to be followed by strangers (referring to the supervisor). They would also refuse entry of [the father] into the room, claiming that the strangers will follow him around as well.

Treatment Focus of [the Father’s] Parenting Behaviours:

61. The focus of the treatment surrounded on [the Father’s] ability to develop insight concerning the problems he helped contribute due to his old parenting behaviours, as well as to replace dysfunctional parenting behaviours with more functional and adaptive ones.

62. Regarding insight building, [the Father] was facilitated and guided to aware the undue influence he might exert on the upbringing of his children, consciously and unconsciously. Though he still did not believe that his unrefined social etiquette and his “bad jokes” are principally wrong., [the Father] was more sensitive to the difficulties and embarrassments his children might have to face, both at school and at any other social situations.

63. Developmentally, [the Father] was also more able to appreciate that love and affection towards his children could be expressed in nonmaterial manners, which did not necessarily involve buying of gifts. In fact, he acknowledged that showering gifts to his children might actually be harmful to their character development. In addition, [the Father] had learned to interact with his children in a more age-appropriate manner, able to truly see that his children were no longer at the age when he and his ex-wife separated.

64. In terms of emotional management and control, [the father] was facilitated to understand that his expression of frustration and acting out behaviours out to defiance and retaliation might cause unnecessary and unintentional harm to his children. He was repeatedly being reminded that his marital discord with his ex-wife should remain as an affair to be dealt with between two adults. The quality of the parent-child relationship should be shielded from the marital conflict and the resulted fallout. In addition, [the Father] was encouraged to seek and create opportunities that could facilitate his ex-wife to be a better mother and himself as a better father through constructive information exchange as far as possible, especially after their divorce proceedings were basically settled.

…

Psychological Opinion…

69. Regarding the aspect of parenting, during the initial sessions of the parenting training, [the Father] was quite inadequate in parenting skills, lack of sensitivity and awareness. This might be suggestible to be linked to his dull average level of intelligence and limited social and parenting experiences, contributing to his ineptness in responding to the needs of his children responsively and appropriately.

70. With adequate training and coaching in parenting, as suggested in the previous clinical psychologist report by Prof. Peter Lee, marked improvements were noted. [The Father] was better in responding to the needs of his children in a more timely and appropriate manner. He was more able to restrain himself from showering his children with toys that might not be of interest to them. [The Father] purchased toys for his children that are more age-appropriate, as well as demonstrating responsible parenting by discussing shopping requests from his children first, instead of buying those items for them outright.

71. In addition, it was also noted that in the last home observations that [the Father] was more able to relate and interact with his children in a more age-appropriate manner, and no longer treating his children like toddlers as observed during the initial observation

72. Given the current situation and taking into account of the treatment progress of [the Father] , any additional outside supervision appears not to be necessary.

72.  The Mother was unhappy with Dr. Cheung’s report. She suggested that Dr. Cheung’s report looked suspiciously like a replica of Professor Peter Lee’s report. Despite that, it was eventually agreed that Dr. Anita Leung would be jointly instructed to conduct a family assessment.

73.  In her report, Dr. Leung stated:

“5.1 The Father was concerned that the Children were being alienated by the Mother against him. They appeared apathetic and disinterested in going anywhere with him, and doing anything with him. They were reticent in sharing their interests, liking and activities…The Father felt heartbroken, discouraged and helpless in expressing Children’s distancing from him and reluctance to hug him.

5.2 He was angry with the Mother for making false accusations against him, depriving him of staying access with the Children, humiliating him by putting him under surveillance and spying against him…On a recent occasion, he bought [the son] a nerf gun; [the son] asked if he could shoot the V; he said “maybe ok”; [the son] shat at the TV resulting in the cracking of the TV screen. The Mother complained that he made [the son] shoot at the TV, and unilaterally re-appointed [Ms. Wong], the previously discontinued supervisor, to supervise access in the following week that he refused to accept. He felt aggrieved for being ‘played” and victimized…

5.4 He considered himself kind at heart, with no scheming mind, hardworking, and persevering, never giving up his parenting role. He loved the Children dearly. He loved to give them whatever they desired…He yearned to have close relationships with them, and to play an active role in their life…

5.8 He had never thought of divorce. He felt very stressful during the early stage of divorce when huge sum of maintenance was demanded of him along with severe attack on him as a person and a father…The Supervised access made him feel being treated like a convict. He felt lonely and helpless, missing the Children. He drank to feel numb and less painful. He then relied on anti-depressant, sleeping 10 hours a day, and gaining 20 pounds. At the time of assessment, he was coping better. He had stopped anti-depressant, sleeping 8 hours a day, feeling less tired. He had cut down smoking and drinking…He had taken an on-line course and a course offered by Hong Kong Family Welfare Society for divorced parents. He had read the Co-Parenting Toolkit and the parenting book recommended by the undersigned.

5.9 The father’s MCMI-III protocol is a valid one. Individual with similar profiles tend to be socially under-developed and unsophisticated, allowing others to make important decisions for him, generally pleasing ad agreeable, but not easy to forgive and forget an insult, and could become explosive when being criticized, attacked or taken advantage of. His test scores suggest that his anxiety and depressive moods are prominent, with features of post traumatic disorder and alcoholic dependency, in want of support and help. There is no indication of significant psychopathology, Antisocial or other Personality Disorders. Test findings are consistent with clinical impressions. The father impresses to be straight forward and socially inept, weak in emotional regulation. He was constantly haunted by traumatic experiences related to divorce to be depressive and explosive.

The Mother

5.10 The Mother as much concerned about the Father’s immature personality, vulgar interest in obscenity, reckless behavior, and drinking problem. She suspected the Father had molested [the daughter] at the age of 2. She did not trust the Father to take good care of the Children. She worried about the Children’s physical safety and mental contamination while they were with the Father. He had discouraged Children’s making efforts in study. He perceived money as superpower, and everybody in the world as bad. He was indulgent and permissive in parenting…

5.11 She was frustrated that the supervised access was ineffective in protecting the Children from harm. In February 2018, the Paternal Grandfather restricted the supervisor, [Ms. Wong], to a seat facing the door of the bedroom where the Children used to spend time during access and banned her from entering the bedroom and any other room. She could not go near the Children at all times as they moved freely around the house. The other supervisor, [Ms. Tang], did not stop the Father from making [the son] shoot at the TV in December 2018. On 3 February 2019, he did not intervene when the Paternal Grandfather kept shouting loudly at [the son] for not eating at the dining table, and badmouthing the Mother and her family in front of [the son] causing [the son] to tears. There were other instances that Ms. Tang did not intervene when the Father and the Paternal Grandfather said or did something inappropriately that made the Children confused and scared…

5.15 She recognized that the Father was not a bad person, and he loved the Children. Yet, he did not know how to love and guide them. She understood that it was important that the Children had a good relationship with the Father. However, she was not sure if the Children were securely bonded to him, or wanted him to be active in their life. She had to persuade them and even drag them to go for access every week. They had nothing to say during phone access…

5.16. She was aware of the Children’s sufferings for being in the middle as the father and the Paternal Grandfather often badmouthed her. She was calm and consistent in telling the Children the same message that Parents didn’t work out so they had separate homes, seeing the Father and grannies over weekend. She was active in keeping the access going. A WhatsApp group was set up lately involving the access supervisor and both Parents to avoid situation that she had taken the Children to the handover location while the Father had told the children and supervisor to cancel the access without her being informed.

5.17 After reading the Co-parenting Toolkit as recommended by the undersigned, she considered the Father fitted all difficult and dangerous situations that were not suitable for co-parenting…

5.18 Her profile on MCMI-III portrayed her in a positive light, energetic, outgoing, sociable, easy to make friends, and interested in many things, allied with societal values and established authorities, with clear purpose ad goals in life, decisive and efficient in planning and organizing her work and life. Her Disclosure score is below the acceptable limit of validity…

5.24 …[The son] said that he did not want argument and wanted everybody happy.

5.25 [The son] had no idea about the Father’s feelings. The Father just looked silly, dancing everywhere, weird…

5.27 …[The daughter] was ready to talk about the Father and access negatively – “didn’t want to eat Dad’s food”, “don’t want to stay long in Dad’s house”, “feeling weird going out with him, bringing me to weird places doing weird stuff”, “always buy stuff, can’t stop buying”, “his house is stingy, gross”, “just want to spend time with Mom”, “just want to have fun with my friends, my mom, having fun with her friends”. However, she admitted having good time with the Father during her last birthday. At the end of the session, she expressed concern over what she had said. She confessed that she did not want the Father to feel angry, sad and heartbroken. She showed ambivalence and regret for she had said…

5.33 …”When you are not here, he acted differently”, “not very nice to people”. [The daughter] went on to tell about the Paternal Grandfather being mean, shouting at them for not eating, complaining their eating manners, and the Mother not teaching them how to eat. “We don’t like Chinese food; we like pasta…Dad gave us food, we were full already…did not explain and help us.”…The Paternal Grandfather was described as always very angry…

Father-Children Interactions

5.35 …the Father initiated conversation from time to time with the Children who responded briefly, short of a sentence…

5.36 The Children crouched in bed with forehead down like the yoga ‘child pose’ for a while before taking their heads up to watch and play with the i-pad in front of them. The Father solicitously offered them McDonald food (which he learnt that [the son] liked) and chocolates, and presented [the daughter] with boxes of slimy. The Children appeared disinterested in the food…The Father made much effort in initiating conversation with the Children but was getting little or no response from them. The Father had invited [the son] to play with some toys, [the son] just spent the whole session playing video games or browsing iPad by himself. The TV with a huge screen was turned on throughout the session with nobody watching it…

5.37 The Father tried to create fun and novelty atmosphere with dramatic remarks in inviting [the daughter] to open the boxes of slimy one by one. [The daughter] appeared apathetic…[The daughter] spent the rest of the time in playing slimy by herself…

5.38 The father was keen to find out what the Children liked and enjoyed playing, and buy them whatever they liked

5.39 At the Father-Children session held in the psychologist’s office, the Father presented a box to [the daughter] as a birthday gift and invited her to open it. [The daughter] refused to take it and to open it…The Father also bought [the son] the newest gun shooting video-game to be played in the Paternal home. He also bought the Monopoly card game to play with the Children in the session. The Children showed little interest and uttered minimal responses.

Opinion & Recommendation

6.1 The Father is ‘not a bad person’, as the Mother admitted…there is no evidence of personality disorders, violent or antisocial traits, sexual deviant thinking, intent, plan or action. This is repeatedly confirmed by Professor Peter Lee, Dr. Amos Cheung, Dr. Joyce Chao, as well as Dr. Lynette Levy Bandeira. He impressed all assessing and treating psychologists as open and straightforward, without any attempt at impression management.

6.2 he is of average intellectual functioning but has a low self-esteem. He is relatively weak in social reasoning and emotional regulation. Under tremendous stress or threat of attack, he is inclined to feel nervous and react by drinking to feel less pain or by swearing to fight back. He has no intention to hurt others. He has chosen actions that he thought were less harmful to alleviate his stress. He has few things that can uplift his mood. However, he is not a chronic alcoholic.

6.3 He loves the Children and tends to adopt the permissive style of parenting. He loves to cheer them up, provide them whatever they desire and refrain from pushing them to do anything they feel uncomfortable…He did assert his authority by persuading the Children to comply with conventional rules and safety….That he allowed [the son] to use the newly bought nerf gun to shoot at the TV screen is indeed a mindless act. Nevertheless, he is able to reflect and learn from experiences. With time and coaching, he can learn to be a more effective and competent parent.

…

6.6 It has been more than 4 years since the Mother filed for divorce. Prolonged parental conflict is like raising children in the battle field, creating unnecessary threat of casualties. Research indicates that long and unresolved parental conflict is the most toxic stress to children, can weaken biological systems and brain architecture, and can have damaging effects on learning, behavior, and health across the lifespan…

6.7 In the best interests of the Children, it is imperative that the current family situation be rectified as soon as possible with the following recommendations made:

(1) The children to enjoy unsupervised access with the Father, as well as staying access, probably during school holidays;

(2) The Father to continue with a therapist to manage his emotions, and enhance his parenting competence and effectiveness…”

74.  The Mother had grave concerns about the contents of Dr. Anita Leung’s report. By a summons dated 26 March 2019, she applied for, inter alia:

a)  Leave to file a further expert psychological report;

b)  The provision as to supervised access to continue

c)  Hearing as to the Father’s access to the Children

75.  In response, by a summons dated 2 April 2019, the Father asked for the supervision of access be lifted. By a further summons dated 7 November 2019, the Father asked for an order for the Mother to comply with the Order dated 2 May 2019, directing the parties to appoint Ms. Winnie Chow as the Parental Co-coordinator, and for a penal notice to be attached to such order.

76.  Subsequently, counsel for the Father proposed that it would be sensible for the Mother to formulate her concerns about Dr. Leung’s report in the form of written questions that could be submitted to Dr. Leung. This was agreed with the provison that the Mother should be at liberty to discuss this matter with an expert and have his/her assistance in formulating the questions.

77.  The Mother consulted Dr. Calais Chan who formulated the questions but presented them in the form of a report. Dr. Leung then produced her replies in the form of a second report dated 21 August 2019. In this report, Dr. Leung challenged the impartiality of Dr. Bandeira, who was jointly appointed by the parties as the Single Joint Expert.

The Father’s Summonses

78.  It is easier to deal with the Father summonses first.

79.  In his Summons dated 2 April 2019, the Father asked for Orders:

(1)  The requirement for supervision of [the Father’s] weekly access on Sundays to the Children of the Family…be lifted forthwith

(2)  The [Mother] do forthwith comply with her undertaking made in the Order of Deputy Judge A.N.Tse Ching on 10 November 2017 as varied by the direction of the Court on 23 October 2018, that the parties abide by the recommendations of Dr. Anita Leung namely that supervision of the [Father’s] access be lifted…

(3)  Ms. Wendy Woodhead be appointed as the parenting co-ordinator.

(4)  The Respondent’s access to the Children be increased to include staying access, for such time and frequency as the Court deems appropriate…

80.  In his summons dated 7 November 2019, the Father asked for an order that Ms. Winnie Chow be appointed as the Parental Co-ordinator pursuant to the order dated 2 May 2019.

81.  The Father’s case is that once Dr. Anita Leung recommends unsupervised access, the supervision would be automatically lifted. He argued that the Mother’s refusal to automatically lift the supervision is a breach of undertaking. On the hand, the Mother says that variation of the supervised access is subject to the Court’s approval.

82.  The Order dated 10 November 2017 provided as follows:-

i.  Objective

AND UPON the parties’ agreement that the objective is to lift the condition of supervision on the Respondent’s access if recommended by Lora Lee (or another children psychologist appointed in her place)

ii.  Undertakings by the Father

a.  The [Father’s] supervised access pursuant to order dated 2 June 2016 shall continue until further order;

b.  The access session from 16 July 2017 to be attended by Dr. Amos Cheung, the [Father’s] parenting therapist on such other days as convenient to him;

c.  At the end of Dr. Amos Cheung’s 3 access sessions (or such further occasions as are necessary for Dr. Joyce Chao in conjunction with Dr. Amos Cheung to form the view to be expressed in accordance with the paragraph below), Dr. Amos Cheung and Dr. Joyce Chao will inform [the Mother], [the Father] and the Court if they consider it appropriate that [the Father] might be given unsupervised access;

d.  If Dr. Joyce Chao and Dr. Amos Cheung form the view that unsupervised access might be appropriate, Lora Lee, a child psychologist and therapist, will make an assessment of the family for the purposes of preparing a report to the parties and the Courtas to whether access should be supervised and/or increased, and in doing so, she may decide the extent to which she wishes to attend access sessions in order that she can make such an assessment;

iii.    Parties agreement

That they will abide by the recommendation of Lora Lee, unless either makes an application to the Court otherwise

83.  Firstly, an expert cannot usurp the functions of the Court. The Court is assisted by expert reports but are not bound by them. Secondly, the Father’s interpretation of the Order is clearly misconceived. It was clear from the wording of the Order that the supervised access shall continue until further Order. That is also why the Court has to be informed at every stage. In other words, the uplift of supervision is subject to Court approval and is not automatic, as alleged by the Father. There was an undertaking that the parties would abide by the expert report. However, this is not absolute. Either party is allowed to make an application to Court if he/she does not agree with the report. That is exactly what the Mother has done in the present case.

84.  The Father alleges that the Mother is in breach of her undertaking. There is a specific procedure to deal with such breaches, namely committal proceedings which requires the relevant alleged breach to be proved beyond reasonable doubt. The Father has chosen not to follow that procedure.

85.  Obviously, the Father’s summons in respect of uplift of the supervised access and additional/staying access would depend on the result of the Mother’s summons. If the Mother were granted leave to adduce further expert evidence, the Father’s summons would have to be adjourned for argument pending the further expert report. This will be dealt with below.

86.  As for the Parental Co-ordinator, Ms. Winnie Chow has already been appointed.

The Mother’s summons

Applicable Legal Principles

87.  RHC paragraph 38/4A/6 provides as follows:

“Obtaining further evidence – Where the parties give joint instructions to a single joint expert, whether as a result of a direction given by the court under r.4A, para. (1), or as a result of an agreement to that effect between the parties, it is conceivable that one of the parties may be unhappy with the report produced by the single joint expert. The question may then arise as to whether that party should be permitted to instruct another expert, with a view to obtaining a report which will enable him to make a decision as to whether or not there were aspects of the single joint expert’s report which he might wish to challenge.

In the English Court of Appeal case of Daniels v Walker [2000] 1 WLR 1382, it was held that where the dissatisfied party’s reasons were not ‘fanciful”, such permission may be granted, at least where the parties had agreed to give joint instructions to the single joint expert, and especially where a substantial sum was involved. Lord Woolf stated that where it would be unjust, having regard to the “overriding objective”…not to allow that party to call the further expert evidence, then he must be allowed to call that evidence. Where further expert evidence was obtained by the dissatisfied party (or, perhaps, both parties) then a decision would have to be made by the court as to what evidence should be called at trial. That decision should not be made until there had been a meeting between the experts involved…

In Dennis Kwok Hon Ming v Poon Sui Cheung Albert HCMP 1526, 1527 & 1528/2013 [2017] HKEC 2807, further expert evidence was allowed as “the delay to the substantive hearing is not a sufficient factor to outweigh the importance of enabling the Court to achieve a just outcome in the valuation process”. The Court opined that to refuse the parties’ own expert reports would be very unjust, when a further expert proposed by one of the parties has articulated a very significant disparity in amount between the single joint expert’s assessment of land value and his own.

In Peet v Mid-Kent Healthcare Trust [2001] EWCA Civ 1703 [2002] 1 WLR 210, the English Court of Appeal held that a report prepared by a joint expert should be the evidence in the case on the issues covered and generally there should be no need for the report to be amplified or tested by cross-examination at trial. Note that in this case, the Court seemed to suggest a stiffer test for adducing additional expert evidence that “good reasons” are needed, not just more than “fanciful reasons”.

In L v L (unrep HCMC 1/2003, [2005] HKEC 1851) (applying Daniels v Walker, supra and Peet v Mid-Kent Healthcare Trust, supra), the court granted leave for a subpoena to be issued against a bank for a valuation report to be produced in evidence, on the basis that the valuation was much greater than the valuation stated in the single joint expert’s report. Lam J stated that the “difference from the opinion of the Single Joint Expert is too large to be discounted away as within the reasonable range of disagreements between experts…Leave was granted even though the application was made at a late stage in the proceedings and a re-opening of the evidence was required.

Factors that may be relevant to the question whether a party should be permitted to adduce further expert evidence have also been outlined in the English case of Cosgrove v Pattison [2001] CP Rep 68…”

88.  In Damiler AG (formerly known as Mercedes Benz AG) v Helge Herbert Leiduck and another [2014] 3 HKLRD 56, Recorder L. Wong SC stated that “the appointment of a single joint expert (“SJE”), whether by agreement between the parties or imposed by the Court, does not per se bar a party from seeking leave to instruct its own expert to challenge the SJE’s evidence or aspects thereof.” The Judge further explained, however, that leave to adduce further expert evidence would only be granted if, upon balancing all relevant considerations, it is just and accords with the underlying objectives of the Civil Justice Reform to do so. In this context, she cited the nine factors identified by Neuberger J in the English case of Cosgrove v Pattison [2001] CP Rep 68:

“i. the nature of the dispute;

ii. The number of disputes on which the expert evidence is relevant;

iii. The reason for requiring the second report;

iv. The amount at stake or the nature of the issues at stake;

v. The effect of permitting a second expert report on the conduct of the trial;

vi. The delay in making the application;

vii. The delay that might be caused in the conduct of the proceedings;

viii. Any other special features;

ix. The overall justice to the parties

89.  One of the Mother’s concerns was that Dr. Leung had failed to address the issues identified by Dr. Bandeira. When she was asked to explain this, Dr. Leung challenged the integrity/impartiality of Dr. Bandeira:

“Dr. Bandeira was initially retained by the Mother’s solicitors to review documents pertaining to allegations against the Father without interviewing any of the family members. She admitted that “all impressions and opinions have been drawn from the documents tinder the assumption that the information presented in the documents is true and allegations are founded. (para.2 of Report dated 20 August 2016). She was subsequently jointly appointed by both Parents following a Court Order to provide an assessment on the family. It is inevitable for her to commit anchoring and primacy biases. Anchoring bias refers to evidence that information received early in the evaluation process, or before that, is remembered better and is used more than information received later in the process. Primacy bias involves reliance on the first or earliest data obtained. Dr. Bandeira’s report sounds like the Mother’s representation; objectivity in opinion is doubtful.

90.  This attack on a fellow expert was shocking. Firstly, the Father and his specialist team were fully aware that the Mother had previously sought advice from Dr. Bandeira. In fact, the Mother had suggested appointing someone else as the single joint expert. It was the Father who thought that Dr. Bandeira was fair in her report and wanted to appoint her as the single joint expert. If Dr. Leung had read the papers properly, she will realize that it was not the Court who chose to appoint Dr. Bandeira. The appointment was made by consent.

91.  Dr. Bandeira’s single joint expert report was one of the primary initial sources of information for Dr. Leung’s first report. Dr. Leung’s brief was to consider whether the issues in Dr. Bandeira’s report have been addressed and whether Father was ready for unsupervised access. In that report, Dr. Leung proceeded as if she had accepted the contents and recommendations in Dr. Bandeira’s report in full. If Dr. Leung had concluded that Dr. Bandeira’s report sounded “like the Mother’s representation” and she disagreed with any part of Dr. Bandeira’s opinion, she should have said so clearly in her first report.  It is an extremely serious matter to accuse a professional colleague of lacking in objectivity and integrity, and if, at the time of writing her first report, Dr. Leung considered that Dr. Bandeira’s “objectivity in opinion is doubtful”, she should have said so clearly and unequivocally at the outset.

92.  Dr. Leung accused Dr. Bandeira of primacy bias. If Dr. Leung had read Dr. Bandeira’s report properly, she would have realized that Dr. Bandeira had never relied solely on the Mother’s allegations or rejected the Father’s explanations. She never purported to make any findings of fact and in fact most, if not all of her opinions were based on facts admitted by the Father. 

93.  Dr. Leung also appeared to have lost sight of the fact that not only was Dr. Bandeira’s opinion never challenged by the Father, it formed the basis of their agreement on children’s arrangements. The Father even stated that Dr. Amos Cheung was appointed pursuant to Dr. Bandeira’s advice. She also ignored that most (if not all) of Dr. Bandeira’s opinions were consistent with the Father’s experts.

94.  The Father has also instructed several experts. This includes Professor Peter Lee, whose reports were filed without the leave of the Court and over objections. Dr. Leung never applied the same yardstick to the Father’s experts. Instead, she relied on the reports from the experts instructed solely by the Father, even when Dr. Amos Cheung’s report looked like a replica of Professor Lee’s report, word for word. She appears to have a double standard. 

95.  Dr. Leung stated that Dr. Bandeira had not referred to the Father’s alcohol use as an important issue. This was not true. There was a specific heading for the Father’s alcohol use in Dr. Bandeira’s report. She stated:

“Alcohol Use by [the Father]

…The key concern with the allegation that [the Father] urinated in the area where the children play is that they may inadvertently be exposed to inappropriate behavior by someone who is intoxicated. Moreover, given the above judgment impairment inherent in the incidents, safety concerns could be raised in some scenarios…

Responses also reflect signs of alcohol dependence, which may contribute to the exacerbation of the above characteristics…”

96.  The Father’s alcohol use was also referred to in the Social Investigation Report (See Report by dated 27 June 2016) and its significance shown by the Court Order in September 2015 with its conditions that stated:

“The Father would not consume alcoholic, would not make inappropriate jokes with the children, would fed the children appropriately, and would not spend excessive sums of money on toys or games for the children…”

97.  In the same report, the Father admitted having a significant drinking problem to the extent that medical attention was once required.

98.  Dr. Amos Cheung also referred to the Father’s alcohol use in his report dated 22 April 2018, where he says:

“…With regard to his drinking problem, [the Father]…started to develop the habit of drinking after he worked for his father in Mainland, where regular attendance to dinners and social events with business partners and government officials were needed. Periodically, he could be quite a heavy drinker, being able to consume at least a bottle of table wine in the evening…”

99.  Dr. Leung asserted that “ordinary people” do not normally show significant change in personality and intellectual functions. However, notable changes (whether deterioration or improvement) may occur after lifestyle changes, such as control of an alcohol problem or alteration of stressful situations. Instead of performing these tests, Dr. Leung simply accepted the Father’s assertions. If Dr. Leung had used the same psychometric tests as Dr. Bandeira, there would be a clear picture as to whether the Father had shown significant improvement or deterioration in the various important aspects of parenting. Not doing so, renders the comparison a largely observational enquiry.

100.  Those tests are particularly important in the present case because:

(a)  [The Daughter] has already told Dr. Leung that the Father behaves differently when Dr. Leung was not present;

(b)  Despite supervision, there are serious allegations that the Father showed inappropriate behavior;

(c)  According to Dr. Amos Cheung, the Father has been repeatedly advised that he should show his love towards the Children in a non-materialistic manner and the Father was given training on how to parent the Children. The Father asserted that he has been following that advice. However, during Dr. Leung’s assessment, the Father has made it clear that he will buy whatever the Children wanted and appeared to be showering them with unwanted gifts. His parenting style continued to be permissive and the access continued to be undisciplined and unstructured. The Father’s behavior was wholly inconsistent with Dr. Cheung’s findings. 

101.  One of the more serious incidents that occurred during supervised access was the “BB gun incident”. There was no dispute that the Father had purchased a BB gun for the son. The only dispute was whether the Father had asked or allowed the son to shoot at the television, which resulted in the cracking of the screen. Dr. Leung thought that it was a “Nerf gun” and brushed this incident aside as a mindless act. She even stated that the Father was able to learn from his mistakes. If she had read the papers, she would realize that:

(1)  There was no dispute that the gun in question was NOT a Nerf gun. A Nerf gun has foam pellets whereas a BB gun has metal pellets;

(2)  Dr. Leung stated that allowing the son to shoot at the television screen was a mindless act. She ignored the fact that the Father had purchased the gun for the son. No responsible parent would buy such a gun for a young child and allow the child to shoot it indoors or at a television screen;

(3)  The metal pellets are liable to ricochet and cause serious injury;

(4)  This was not the first time that a dispute has arisen because of a gun. In the past, the Mother alleged that the Father shot the son in the eye with a Nerf gun. That allegation was not denied;

(5)  Not only has the Father not learnt from his previous experience, the gun that he had purchased was even more harmful than the one before.

102.  It was clear that the undisputed facts of this case are wholly inconsistent with Dr. Leung’s finding.

103.  Inability to regulate irresponsible and impulsive behaviours under supervised access begs the question as to the Father’s capacity to do so under unsupervised access where he is liable to be more vulnerable to his poor judgment and impulsivity, given his established cognitive difficulties. Those cognitive difficulties were found by the Father’s own expert, Professor Peter Lee.

104.  In her 2^nd Report, Dr. Leung asserted that:

“The Father respected authorities and thought highly of rules…Nevertheless, he was not thoughtless in ventilating his emotions without thinking of consequences…He was receptive to training and eager to learn to be a better parent”

105.  The Father had consented to supervised access. Nevertheless, in breach of such consent order, he has acquiesced to the persistent obstruction of the supervisors from doing their jobs properly and the BB gun incident occurred even when there was supervision. Dr. Leung provided an excuse that it was the hot-tempered Paternal Grandfather who disliked the supervisors in his house and that there was nothing that the Father could do about it. The Father is a very wealthy man. He has the available resources to have access in another venue.

106.  When the supervisor Ms. Wong tried to intervene, the Father stated that he could do whatever he wanted and told the supervisor to speak to his lawyers. Despite the Court’s orders, he then tried to unilaterally dismiss Ms. Wong. The Father also admitted that he had been telling inappropriate jokes and allowing the son’s foot to rub his private parts to spite the Mother. Again, the undisputed facts of this case are inconsistent with Dr. Leung’s findings.

107.  Since the Father’s self-reporting appears to be inconsistent with the contents of Dr. Amos Cheung’s report, the supervisors would be an important source of information for Dr. Leung to consider. Despite that, she has chosen not to interview the supervisors.

108.  As stated by Dr. Leung, an accusation against a fellow expert is a serious matter. She criticized the Mother when she raised queries about Dr. Cheung’s report but had no qualms in accusing Dr. Bandeira of lack of impartiality (when the contents of Dr. Bandeira’s report was not even in dispute). That alone constitutes more than good reason for the Mother to seek advice from an additional expert.

109.  By reason of the above mentioned matters,

it is HEREBY ORDERED THAT:

(1)  Leave to the Petitioner to file and serve a further expert psychological report to enable the Petitioner to consider and decide whether or not there are aspects of the single joint expert reports from Dr. Anita Leung which the Petitioner might wish to challenge;

(2)  The Father’s supervised access to the Children of the Family shall continue until further order;

(3)  The Respondent’s summons dated 2 April 2019 be adjourned to a date to be fixed for mention with 30 minutes reserved;

(4)  The Petitioner’s further expert report shall be filed and served at least 14 days before the next hearing;

(5)  Each party to file and serve their proposed directions for the further conduct of this case at least 3 clear days before the next hearing;

(6)  Costs of the Petitioner’s summons dated 26 March 2019, the Respondent’s summonses dated 2 April and 7 November 2019 reserved.