WKI also known as IWKV v. CKW also known as WCKW

FCMC 11528/2019

[2022] HKFC 181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11528 of 2019

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JUDGMENT

(Custody, care and control)

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A.  Introduction

1.  This is a trial on custody, care and control of an only child of the family, a girl born on 24 May 2010 now aged 12 (“Child”).

2.  The petitioner (“Mother”) and the respondent (“Father”) married on 14 February 2007 and separated in October 2018 when the Mother moved away from the former matrimonial home with the Child. They lived in a rented apartment in Tai Wai within the same development as the maternal grandparents (“Tai Wai Residence”) since the separation.

3.  The Mother emigrated to Canada in her secondary school years, whereas the Father emigrated there at the age of 12. They met in around 2002-2003, and returned to Hong Kong in around 2005-2006.

4.  The Mother has worked in the human resource and administration field for a number of years, and is now an assistant general manager of human resources at a sizable local conglomerate company.

5.  The Father has been employed by the same international logistics company for the past 17 years or so as a senior manager in the back office. He currently lives at a rented apartment at Cheung Sha Wan.

6.  After altercation and jostling between the Father and the mother’s father (“Grandpa”) took place in mid-September 2019 which led to police intervention, the Mother filed a petition for divorce on 25 September 2019.

7.  The Child now studies at an international school in Lai Chi Kok (“School”). She commenced her Grade 7 studies on 23 August 2022 at the secondary division of the School.

B.  Background

Interim Orders

8.  I can do no better than to adopt the brief chronology set out by Hon Cheung JA in [2022] HKCA 889 at §§3-4 whereby the Court of Appeal refused to grant leave to appeal an interim access order granted by Deputy District Judge Jacqueline Lee dated 12 November 2021 (“CDR Order”):

“3. The Father said the parties had mutual agreement to share the child’s access equally post separation. From December 2018 to August 2019, the child split her time between the Mother and the Father’s homes equally for most of the time. By a Court order dated 19 December 2019 he was entitled to day access to the child three times in week one and three days staying access in week two. By another Court order dated 16 July 2020, he was granted the following access :

1) If school is suspended, weekly staying access to the child for three days; and

2) If school is not suspended, day access to the child two times in week one and 3 days staying access in week 2.

4. The chronology of events [after the order dated 16 July 2020] leading to the present application is set out in the Judgment (Leave to Appeal) of the Judge dated 6 April 2022 by which she refused to grant leave to appeal :

1) 24 October 2020 - The Father reported to have assaulted the Mother inside the ladies’ washroom at a shopping mall.

2) 1 April 2021 - Deputy District Judge Lam varied the terms of the 16 July 2020 Order, by which she ordered that :

(1) The share care of the child arrangement be suspended until the determination of the criminal trial.

(2) Thereafter, in the first two weeks, the Father was to have interim access at the office of the Social Investigation Officer for not more than two hours; and thereafter the Father was to have weekly access on Sunday between 2:00 pm and 6:00 pm.

(3) An updated social investigation report and clinical psychologist report be called for.

3) 21 May 2021 – The Father was ordered to be bound over for 24 months in respect of the criminal case.

4) 14 July 2021 – The Father took out a summons which, amongst other matters, applied in paragraphs 2 and 3 for :

(1) [2] Care and control of the child be granted to him.

(2) [3] Access in all long holidays, school holidays and special days such as A’s birthday in the rest of 2021 to 2023 be granted to him.

5) 6 September 2021 – Deputy District Judge Lam varied the terms of the 1 April 2021 order, and ordered that the Father shall have defined interim access of A on every Friday and Sunday. No staying access is granted at the hearing. The case was adjourned for Children’s Dispute Resolution (‘CDR’).

6) 12 November 2021 – At the CDR hearing, the parties were not able to reach any agreement and the case was set down for trial. The trial is fixed in June 2022. The Judge made the Interim Access Order and varied Deputy District Judge Lam’s 6 September 2021 Order as follows :

(1) Every first week of the month, the Father shall have staying access from Friday after school to Sunday at 8 pm. The Father shall pick up A directly from school and return A to the Mother at the main gate of the Mother’s residence on Sunday at 8 pm.

(2) The Mother and the Father shall share in equal of the long holidays (Christmas, Chinese Lunar New Year, Easter, and non‑school days and any other holidays lasting for two days or above), with the first half of the holidays to the Father. The Father shall pick up A at 2 pm on the first day of access and return A to the Mother at the main gate of the Mother’s residence at 8 pm on the last day of access.

7) 19 November 2021 – The Father issued a summons for, amongst other things, variation of the Interim Access Order.

8) 21 December 2021 – The Judge dismissed the Father’s application to vary the Interim Access Order.

9) By two summonses filed on 17 January 2022, the Father sought leave to appeal out of time against the Interim Access Order and leave to appeal against the refusal to vary the order dated 21 December 2021. The Judge refused both applications.”

9.  Of note, the order dated 16 July 2020 directed that “the parties shall share the care of the [Child]” (my emphasis), although that share care arrangement has been suspended pursuant to the order dated 1 April 2021, and successive interim access orders were put in place.

10.  While the Child has all along lived with the Mother at the Tai Wai Residence since the parties separated in October 2018, the time she spent with the Father ebbed and flowed in the past few years:

(1)  Staying access decreased from 4 days to 3 and then 2 days in the first few months post-separation. The parties then went on a 5-week America-Mexico-Canada trip in July 2019, but there was difficulty in resuming access afterwards. Access arrangement was made on ad-hoc basis until the order dated 19 December 2019;

(2)  Conditions fluctuated during school suspension from February to May 2020, and the Mother called for police assistance for the Father’s failure to return the Child at the scheduled time on 9, 10 February 2020 and 3, 4 May 2020;

(3)  The social welfare officer (“SWO”) referred both parents, with their consent, to the Parent Child LINK Specialised Co-parenting Support Centre run by The Boys’ and Girls Clubs Association of Hong Kong on 12 March 2020 for parent coordination service, but that came to an end in mid-June 2020 as a joint meeting cannot be arranged for both parties to attend;

(4)  No access was arranged between mid-August 2020 to mid-September 2020 because of the parties’ dispute over interpretation of the order dated 16 July 2020 regarding application of staying access during online classes. Also, the Child saw certain sex videos and pictures on the Father’s phone during access in July 2020 (“Sex Video Incident”), and therefore the Mother took her to consult a psychiatrist who recommended that access be suspended;

(5)  Whilst access resumed on 18 September 2020, on 24 October 2020, the Father was reported to have assaulted the Mother inside the ladies’ washroom at a shopping mall when she was attending to the Child (“Female Toilet Incident”). Share care arrangement was ordered to be suspended until the determination of the criminal trial, which took place on 21 May 2021 at which a bind over order was made against the Father to last for 24 months (“Bind Over Order”);

(6)  By 23 June 2021, the Mother refused to facilitate further access given the Father refused to comply with the interim child maintenance orders since October 2020. No access took place despite efforts by the SWO until the order dated 6 September 2021. In the meanwhile, the Father reported the matter to the police, who attended the Mother’s home and office in August 2021;

(7)  Access then resumed in accordance with the order dated 6 September 2021 endorsed with penal notice, which was further varied by the CDR Order dated 12 November 2021. Both parties reported that access had been generally smooth since, and expressed satisfaction with the manner in which pick-up, drop-off and other details are clearly defined by the Court order;

(8)  Having said that, the Father did attempt to seek leave to appeal and to vary the CDR Order, albeit unsuccessfully.

11.  I understand that the Father remains in breach of the order dated 1 April 2021 for payment of interim monthly maintenance of HK$12,000 for the Child, to be increased to HK$14,000 from 1 September 2021 onwards.

The mother’s case

12.  The Mother has filed 2 affirmations on 31 December 2021 and 28 January 2022 respectively. She also relies on an affirmation of her brother (“Brother”) dated 31 December 2021, who was called as a witness at trial.

13.  The Mother’s open proposal is broadly as follows:

(1)  Sole custody, care and control to be granted to the Mother;

(2)  School day access: every alternative Sunday, 12pm to 8pm;

(3)  Non-school day access: alternate day access between the parties, 12pm pick-up and 8pm drop-off for Father;

(4)  Long holidays: equal sharing, with each of the parents to have the first half alternately, save that summer holiday be shared equally on two-week rotating basis;

(5)  Special occasions: each parent to spend the Child’s birthday on alternate years, each parents’ birthday access to the Child, as well as Father’s and Mother’s Day access for the respective parents;

(6)  Handover to be well-defined at one location: pick up at school for school day access and return to the Mother’s residence; pick-up and drop-off at Mother’s residence for non-school day access;

(7)  Unrestricted electronic access by phone, tablet or laptop etc to the other parent, to be facilitated by the parent with physical contact/ access.

14.  The Mother relied on the following in support of that proposal, in particular for sole custody, care and control:

(1)  The parties have not communicated with each other effectively since separation. The Child has been acting as a go-between where parental coordinator service failed;

(2)  It was very difficult to cooperate with the Father to co-parent, who is aggressive, litigious and refuses to bear financial responsibilities in breach of orders for child maintenance;

(3)  There is a high level of mistrust, where police had been involved by both parents arising from children matters, resulting in the Bind Over Order on one occasion;

(4)  The Father is not a suitable carer, given the lack of family support system, as well as his limited involvement in the Child’s school and extra-curricular activities.

The father’s case

15.  The Father has filed 2 affirmations on 3 January 2022 and 7 February 2022 respectively.

16.  The Father’s open proposal is broadly as follows:

(1)  Accepts joint custody, but since the Mother does not agree, proposes sole custody to the Father;

(2)  Sole care and control to Father;

(3)  Access arrangement during term time:

(a)  Week 1:

Sunday 8:30pm to Tuesday morning: Father

Tuesday after school to Thursday morning: Mother

Thursday afterschool to Friday morning of Week 2: Father

(b)  Week 2: Friday after school until Sunday 8:30pm – Mother.

(4)  Long holidays: equal sharing with first half to Father, but Father to have the entire first summer and Christmas holiday after trial;

(5)  Non-school days: the parents to share alternately, but the Father to have access for all non-school days for a year after trial;

(6)  Special days:

(a)  each parent to have access on the Child’s birthday on alternate years, but the Father to have the same for 2 years after trial;

(b)  the Father to have access on Father’s Day and his birthday;

(c)  the Mother to have access on Mother’s Day and her birthday;

(7)  the Child’s HKID & Passport(s) to be kept by the parent with care and control, to be given to the other parent for long holidays;

(8)  leave to travel abroad with the Child during holidays, with itinerary and accommodation information to be provided to the other parent 2 weeks before departure and passport to be given to travelling parent 1 week before departure or VISA application;

(9)  The Mother does not involve her relative(s) or family member(s) during pick-up arrangement of the Child.

17.  The Father relies on the following in support of his position that he is a more suitable care and control parent:

(1)  He can better support the Child’s academic and sports development whereas the Mother tended to outsource care and academic support;

(2)  The maternal grandmother (“Grandma”) who gives care and support to the Child from a young age is emotionally unstable; and

(3)  He is prepared to hire help to assist with child-caring and domestic duties if the Child spends more time with him. If the Child considers his flat too small, he can consider moving to a larger space.

The character of the parties

18.  The Mother appears to be a well-educated and industrious person. It is clear that she loves and cares for the Child very much, as does the Brother who spoke to the maternal extended family’s support for the Child. Similarly, I have no doubt that the Father also loves his Child dearly, and was able to express his position and questions in an articulate manner.

19.  Both parties acted in person and had the opportunity to cross-examine the other for one full day each. It would be fair to say that an undercurrent of mistrust remained as between the parties, and at times, questions and answers descended to a somewhat emotional exchange. But overall and with some prompting from this Court, they were able to control their frustration with each other and to proceed in a civil manner, which is to be commended in light of their on-going co-parenting responsibilities.

C.  Expert Reports

20.  A total of 4 reports have been produced on custody, care and control:

(1)  Social investigation report dated 30 June 2020 by SWO Ms Kong (“1^st SIR”);

(2)  Updated social investigation report dated 29 October 2021 by SWO Mr Chung (“Mr Chung”) (“2^nd SIR”);

(3)  Clinical psychological report dated 28 October 2021 by clinical psychologist Ms Chin (“CP”; “CP Report”); and

(4)  2^nd updated social investigation report dated 25 March 2022 by SWO Mr Chung (“3^rd SIR”).

21.  The CP also provided an updated memo on 9 June 2022 making minor changes and elaboration to the CP Report which I do not think have much bearing on the issues to be decided in this trial. The CP denied being forced by the Father to make those changes despite him attempting to escalate the matter to her supervisor, but considered it fair to correct references to “skating” instead of “snowboarding”, and to make other minor changes.

22.  Given the passage of time and the importance of determining the matter by reference to more recent observation for purposes of laying down a forward-looking order, I place more weight on the later reports and also the oral evidence given by Mr Chung and the CP.

23.  The recommendations of the experts are set out as follows:

(1)  1^st SIR: Joint custody with care and control to the Mother and defined weekly staying access to the Father, alternating long holiday access by parties rotating yearly save that summer holiday be shared equally, alternating single-day holiday access and special day access for birthdays and Father’s/ Mother's Day;

(2)  2^nd SIR: Joint custody with care and control to the Mother and defined weekly staying access to the Father, equal sharing of long holidays, alternating single-day holiday access and special day access for birthdays and Father’s/ Mother's Day;

(3)  CP Report: joint custody with care and control to the Mother with sufficient father-daughter time recommended;

(4)  3^rd SIR: joint custody with shared care and control, week-on-week-off arrangement and equal sharing of long holidays, with special day access.

24.  In other words, all reports unanimously recommended joint custody. Whereas the first 3 reports recommended sole care and control to the Mother with defined access to the Father, the latest 3^rd SIR recommended a week-on-week-off arrangement under shared care and control.

D.  Issues

25.  There appears to be three main issues to be determined namely:

(1)  Should there be an order for joint custody or sole custody?

(2)  What should be the care arrangement of the Child, noting the respective parents’ proposal for sole care and control, and the week-on-week-off shared care and control arrangement proposed in the 3^rd SIR;

(3)  Holidays and special days arrangement.

26.  Before dealing with each of these issues in turn, I shall set out the relevant legal principles and address the Mother’s challenge on admissibility of certain evidence adduced by the Father.

E.  Legal Principles

27.  Under section 19 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), the Court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18. Apart from that, pursuant to section 48C of the Matrimonial Causes Ordinance (Cap. 179), the general principles governing applications concerning children as set out in section 3 of the Guardianship of Minors Ordinance (Cap.13) (“GMO”) also apply, which reads as follows:

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

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

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

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

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing.” (emphasis added)

28.  When applying the welfare principle under section 3(1) GMO, I also consider the “welfare checklist” referred to in the English Children Act 1989 and set out in the Children Proceedings (Parental responsibility) Bill which is yet to be passed, as it has been commonly adopted by the Court as a useful guideline. Those factors are:

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

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

(3)  the nature of the child’s relationship with each parent and other persons;

(4)  the likely effect on the child of any change in his circumstances;

(5)  the child’s age, sex, background and any characteristics of the child which the court considers relevant;

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

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

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

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

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

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

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

29.  In H v N [2012] 5 HKLRD 498 (cited with approval by the Court of Appeal in ZJ v XWN [2018] 2 HKLRD 644 at §25), Poon J (as he then was) endorsed the practice of using the above welfare checklist subject to 3 caveats:

“29. First, absent any statutory underpinning in the GMO, our courts are under no duty to have regard to “the welfare checklist”. In other words, it is not compulsory to do so. Whether a judge may wish to make use of it and if so how is entirely a matter for him. For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him. As long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticized for not expressly applying the checklist or not going through all the factors one by one.

30. Second, when applying the checklist, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one. Otherwise the task will become too onerous unnecessarily.

31. Third, “the welfare checklist” is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account : London Borough Southwark v B [1993] 2 FLR 559, per Waite LJ at p.573B-C. It is not meant to be exhaustive. Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.” (emphasis supplied)

30.  In the premises, I will only consider those factors in the welfare checklist in so far as they are relevant to this case.

Law on Custody, Care & Control

31.  The meaning of sole/joint custody, care and control has been set out in the oft-quoted judgment of Hartmann JA (as he then was) in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at §§26-57. I set out below particular passages of importance:

“31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.

33. We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing. The present case is a prime example.

34. The mother seeks sole custody because, to use her words, she wants to leave behind the conflict that has marked her relationship with the father since the breakdown of the marriage and wants to be left in peace to be able to raise the child as she thinks best, that is, to be able to determine such matters as the child’s education, religious upbringing and choice of activities free of any disturbance from the father. She is happy to let the child spend time with the father and is happy to keep the father informed of matters relevant to the child’s well-being but she wishes to reserve absolutely to herself the manner of her child’s upbringing.

…

36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. …

…

38. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter.

40. Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration. In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason it is often said that there is a thin line between sole custody and joint custody.” (emphasis supplied)

32.  Specifically on joint custody, see:

“Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.” (emphasis added)

33.  As to the meaning of joint or shared care and control, I refer to the decision of HHJ Melloy in SKP v. Y, ITT (unrep.) FCMC 17772/2011 dated 12 November 2012 as follows:

“20. Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control, access and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 when I said as follows:

16. The term care and control is not referred to anywhere in our legislation. It is generally said to mean the day-to-day looking after of the child i.e. getting the child up for school, making sure that he is fed and watered, that he does his homework and that he has an appropriate structure to his day.

17. Access is the right of the child to see the non-custodial parent, or in the case of joint custody, the right of the child to see the parent without care and control. The normal order is for reasonable access – and the details are left for the parents to work out between them. Alternatively access can be defined.

“2.21 Access is the right to have contact with the child, such as through letters, e-mails, telephone calls, visiting the child, taking him out or having him to stay from time to time”.

Access is also said to be the right of the child as opposed to the right of the parent.

Joint care and control

21. Consequently joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently one would normally expect an order for joint custody and joint care and control to be made by consent. However court intervention to that effect is not precluded. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co parenting scenario.

So how does this compare with the concept of shared care?

22. The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002), where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co parenting virtually impossible, but where it is in the child/rens best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

“I have given a great deal of thought to the appropriate order to be made in this case. As I have said it is not possible for me to make a “parallel parenting” order as such. However I would like to make an order that supports the concept of parallel parenting. Consequently it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access. This will make no difference at all to the practical arrangements that I intend to put in place. They would have been the same in either event. However the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:” (emphasis supplied)

34.  As recognised in SKP v. Y, ITT §19, the combinations are multifold, such as (i) custody and care and control to one parent and reasonable access to the other, (ii) joint custody with care and control to one parent and reasonable access to the other, (iii) joint custody and joint care and control to both parents, (iv) sole custody to one parent and shared care (such as the order upheld by the Court of Appeal in H v H (unrep.) CACV 42/2002 dated 25 July 2002) and (v) joint custody and shared care. It is also possible to make an order for joint custody and to be silent on care and control/access/shared care.

F.  Challenge to Admissibility

35.  The Mother challenged the admissibility of a number of exhibits and recordings produced in the Father’s 2 affirmations. I set out below a description of those materials:

(1)  2 WhatsApp messages referred to in the Father’s 1^st affirmation[i] described by the Father to be in relation to Grandma’s emotion problem, (i) the first exchange between the Mother and the Grandma took place around 20 November 2018 where the Grandma expressed her anger by cursing the Father in strong language and (ii) the second one of around the same date between the Mother and a man (“Man”) where the Mother forwarded on the first message, described Grandma as “a very negative person” and said she would not want the Child to get close to and be influenced by Grandma:

(a)  At the Mother’s 2^nd affirmation §8, she requested the Court “to find out the original [sic.] and the validity of all these exhibits before admitting as evidence and take necessary action if they are found to be fabricated or acquired by illegal fashion”;

(b)  During trial and at my request, the Mother produced a copy of her police statement dated 4 February 2020 marked as “Exhibit P2”, which recorded her report to the police alleging the Father accessed her computer with criminal or dishonest intent, which led to his obtaining the 2 WhatsApp messages;

(2)  At Day 2 of trial, the Mother objected to admissibility of the recordings exhibited at WCKW4 and WCKW7 which were referred to at the Father’s 2^nd affirmation at paragraphs 2(b)(iii) & (iv)[ii]. The Father explained that he took those recordings shortly after a fight between the parties which occurred on 17 August 2018 resulting in police intervention. They were said to record conversations between the Father, the Mother and the Grandpa in which the Grandpa acknowledged the Mother admitted to him that she was the one who first hit the Father;

(3)  At Day 3 of trial, the Mother objected to admissibility of a letter dated 7 December 2020 exhibited at WCKW-13[iii]. The letter was signed off by the Father’s friend (“F’s Friend”) and appears to explain what transpired at the handover of the Child by the Grandma to F’s Friend on 16 July 2020 when the Father was in Court. The Grandma was said to have taken a photo of F’s Friend and was rude in a terse exchange;

(4)  At Day 4 of trial, the Mother objected to admissibility of the some undated WhatsApp messages between herself and the Man regarding treatment for sexually-transmitted disease[iv]:

(a)  Initially during cross-examination on Day 3, the Father said it was the Mother who sent to him those messages as he knew about the affair and wanted to ask for his forgiveness;

(b)  However on Day 4, the Father changed his case and said the Mother did not send those messages to him but authorised him to obtain them;

(c)  The Mother, on the other hand, denied ever sending those messages to the Father or authorised him to access them by giving him the password of her phone.

36.  Although challenges to admissibility should have been taken out as early as possible and save for the first item, the Mother’s objection were only raised during trial, I note that both parties have been acting in person since around the order dated 1 April 2021 and at the time their affirmations were filed. I have therefore considered those materials on a de bene esse basis during trial.

37.  It is relevant to note that pursuant to O.41, r. 6 of the Rules of High Court (Cap.4A) (“RHC”), made applicable by rule 3 of the Matrimonial Causes Rules (Cap.179A), the Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.

38.  O.38, r.2A(8) RHC regarding exchange of witness statements further provides that nothing in that rule shall make admissible evidence which is other inadmissible, and therefore the need to comply with O.41, r.6 RHC: Hong Kong Civil Procedure 2022 [38/2A/15].

39.  The commentary at Hong Kong Civil Procedure 2022 [41/6/1] reads as follows:

“An affidavit must be pertinent and material and may be ordered to be taken off the file if scandalous and irrelevant matter is inserted… or the scandalous matter may be expunged. This rule empowers the court to strike out material which is scandalous or irrelevant or otherwise oppressive, so that material which is scandalous can be struck out and irrelevant material which is not scandalous can also be struck out. These principles were also discussed in Mohammad Amjad v. John M Pickavant & CO (HCPI 100/ 2009, [2012] H.K.E.C. 631) where it was held that any statement or allegation, no matter how grave, so long as it is material to the issues in dispute between the parties should not be regarded as scandalous or so plain and obvious that it should be struck out. However, any statement on the conduct of a witness, which is unrelated to his testimony in relation to the claim, but related to his credibility should be struck out.” (emphasis supplied)

40.  The learned authors of Phipson on Evidence (20^th Ed) described the relationship between relevance and admissibility as follows;

“[7-05] …It is correct then, in deciding whether evidence is admissible, to ask first whether the evidence is relevant and, thereafter, whether there are any rules of discretions, based on convenience or policy, which nonetheless make this relevant evidence inadmissible, or inadmissible unless further conditions are established.”

41.  Evidence will have to attain a “sufficient weight” before it will be admitted, sometimes described as a need for “sufficient relevance” or for evidence to have a “sufficient degree of relevance”: Phipson [7-07], citing Hoffmann LJ (as he then was) in Vernon v Bosley [1994] PIQR 337 at 340 as follows:

“The degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception…[A]lthough a judge [in a civil case] has no discretion to exclude admissible evidence, his ruling on admissibility may involve a balancing of the degree of relevance of the evidence against other considerations which is in practice indistinguishable from the exercise of a discretion.”

42.  Given the Mother’s complaint of the Father’s use of covert recordings and extraction of her WhatsApp messages without her permission, it would be relevant to consider the admissibility of such materials in children proceedings. In TWC v. LKL (unrep.) FCMC 8460/2012 dated 12 December 2013, DDJ KK Pang (as he then was) addressed the issue of surveillance evidence obtained from a year-long spying operation at §§88-109, having considered a number of English and local authorities. In short,

(1)  there can be generally no objection to the admissibility of evidence produced by means of covert video surveillance. Even if the evidence were unlawfully or improperly obtained, it would still be admissible in civil proceedings and a fortiori in proceedings relating to a child where the welfare of the child plainly requires that the truth of the manner in which he was abused should be ascertained;

(2)  it is only in cases where the manner in which the evidence is obtained plainly affects the interests of the proper administration of justice (for example, evidence obtained consequent upon a contempt of court) that the court in civil proceedings has the power to intervene and rule evidence inadmissible. Whether the court would in fact exercise that power in a child case is another question;

(3)  Notwithstanding its admissibility in evidence, however, the court would not wish as a matter of practice to continue to sanction conduct which is in fact unlawful.

43.  The learned Judge concluded as follows:

“104. Having regard to all the above matters, I accept that the use of covert surveillance evidence in proceedings in relation to children is permissible in appropriate cases. As to whether it is appropriate to use covert surveillance evidence in any case, in my view it depends on a consideration of the special circumstance of individual case with the best interest of the child as the guiding principle. Where there is clear evidence showing that the spouse is a danger to the child in question, presumably the use of covert surveillance can be justified. In other cases, for my part, probably it is wise to exercise caution. It is because to spy on the other party’s private life is intrusive and is often frown upon and taken as prying and underhand by the other party when he or she finally finds out that his or her privacy has been under covert surveillance. It is going to do a lot to undermine trust between the parties. It increases the costs and expenses of the litigation. It curtails the communication between the parties. It harms their continuing relationship as parents. It increases the tension, bitterness and conflict that the parties may encounter in an adversarial litigation system. The parties may be discouraged from co-operatively working together as parents in the long run, and eventually the best interest of the child will be inevitably threatened.” (emphasis supplied)

44.  I respectfully agree. As such, I shall consider whether the materials objected to are of sufficient relevance to be admissible.

45.  In Re Linea Trading Company Limited (unrep.) HCCW 350/2004 dated 11 July 2005, Barma J (as he then was) summarised the legal principles on striking out affidavits under O.41, r.6 of the RHC as follows:

“4. The principles on which the court acts when considering whether or not to strike out matters in an affidavit pursuant to the rule were not, I think, seriously in dispute. For present purposes, I summarise them as follows:-

(1) Scandalous has the same meaning in Order 41 rule 6 as it does in Order 18 rule 19 dealing with the striking out of pleadings. Thus, degrading, indecent and offensive charges made in an affidavit will be regarded as scandalous if they are irrelevant or inadmissible in evidence to prove any material allegation in the petition (see eg Cashin v Cradock (1877) 3 Ch 376; Christie v Christie (1873) LR 8 Ch App 499, in the context of striking out a pleading);

(2) Matters which are material will not generally be struck out even if they are offensive, although where unnecessary detail is given, that may be susceptible to being struck out (see e.g. Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings).

(3) Irrelevant matter may be struck out even if not scandalous (Re J (An Infant) [1960] 1 All ER 603).

(4) It is wrong to include argumentative material in affidavits and such material may be struck out (see eg Deak v Deak Perera Far East Limited [1991] 1 HKLR 551).

(5) The court may take one of three approaches to an affidavit in which there is scandalous, irrelevant or oppressive matter:-

(a) It may decline to strike the matter out, on the basis that it is capable of excluding such material from its mind when deciding the issues which arise for decision; or

(b) It may think it appropriate to strike out some or all of the material complained of; or

(c) It may, in an extreme case, order the entire affidavit to be taken off the court file.

Which of these courses is adopted will depend on the circumstances of the case, regard being had to the nature and extent of the objectionable material.”

46.  For the following reasons, I find that none of the 4 types of materials are relevant to the issue of custody, care and control of the Child which I am to determine at this trial.

47.  Firstly, the 2 WhatsApp messages[v] were sent nearly 4 years ago on around 20 November 2018. They appear to be a one-off venting of frustration by the Grandma about the Father shortly after the parties first separated in October 2018, and in turn by the Mother to the Man in reaction to the Grandma’s message to her which also caused her much frustration. It is understandable that emotions ran high at the start of the irretrievable breakdown of the parties’ marriage. I fail to see how these messages, intended only for the respective recipients’ eyes, identify emotional instability in the Grandma that renders her a bad influence on the Child, or the Mother an unsuitable carer.

48.  In a more recent interview on 19 October 2021, the CP met the Grandma with the Child and recorded her observations at CP Report §§28 and 39. In short, The Child clearly disagreed with the Father’s allegation that the Grandma was emotional or a bad influence as put to her by the CP, and said she was still close to the Grandma although she did not confide to her as much as before. She said the Grandma was good to her and had never scolded or beat her. The CP also observed that the Child had a very close and warm relationship with the Grandma, and was attentive and considerate of the Grandma’s needs during the interview. The Grandma also confirmed with the CP that she does not require any psychiatric treatment.

49.  In fact, the Father himself confirmed in answer to my questions that he accepted the Grandma and the Child are on good terms and have a good relationship. Although he did not go so far as to say he would proactively preserve their relationship, he said he would permit the Child to contact the Grandma (as well as the Mother) any time during his access using the tablet.

50.  It is difficult to see what relevance there is in an outburst some 4 years ago via WhatsApp messages meant for a private audience in these circumstances. The Mother confirmed in her oral evidence that there had been no further emotional exchange of similar nature with Grandma since 2018. The Mother also stated the relationship between Grandma and Grandpa is good in recent years with little argument. The Mother confirmed that the Grandma’s emotion does not affect her ability to take care of the Child. In any event, there is no evidence to show that the Child is in harm’s way when left to the Grandma’s or the Mother’s care.

51.  The Father took issue with the police’s inactivity in progressing with any investigation despite the Mother’s report at Exhibit P2. The Mother confirmed she had tried her best to assist with the investigation but she was previously unable to fix a mutually convenient meeting with the police to give them the relevant electronic device(s). She had tried to set up a meeting again recently but that had not been successful. She understood the investigation to be on-going.

52.  It is unnecessary for me to come to any finding on how the Father came to possess those messages, which is best left to further police investigation and criminal proceedings, if any. Suffice it to say that I do not find the absence of any concluded police investigation affecting my analysis on admissibility in the above paragraphs.

53.  Secondly, I fail to see the relevance of which of the parties started the use of physical violence against each other that led to police intervention on 17 August 2018, which was over 4 years ago. It bears repeating that any statement on the conduct of a witness intended to attack her credibility would not pass the test of relevance and should be struck out.

54.  Thirdly, the letter from F’s Friend dated 7 December 2020 only goes to the handover arrangement of the Child on 16 July 2020. Any issue arising from the Grandma’s participation at handover has been addressed by the order dated 1 April 2021 in that the parties shall not involve their relatives or family members during access or pick-up arrangements. Further, both parties reported that access has gone smoothly for the past year after the well-defined 6 September 2021 order. The good relationship between the Child and the Grandma has been described above. I fail to see the relevance of this letter.

55.  Lastly, the Father’s case on the relevance of WhatsApp messages between the Mother and the Man, who is said to be her affair partner, is that they demonstrate the Mother was infected with sexually-transmitted disease and therefore she posed a health risk to the Child.

56.  This is an extraordinary position to put forth and I have no hesitation in finding those messages inadmissible for purposes of this trial. The messages are undated, but there is no evidence of the Man’s involvement in the Child’s life or indeed the Mother’s in the few years after these proceedings were commenced. The Father’s own case is that the Mother was involved with the Man between 2016 and 2018. Neither the CP nor the SWO placed any significance on the fact that the Mother might have or have had romantic interests other than the Father, and there is no evidence that the Mother currently has a partner or seeks to introduce any such person into the Child’s life.

57.  There is no evidence to show the Mother currently suffers from any sexually-transmitted disease, and there is no evidence that the Child suffered from any such ailments in the past under the Mother’s care. Even taking the Father’s case to the highest, it is difficult to see how the Mother poses a health risk to the Child.

58.  In sum, I do not consider it necessary to strike out or expunge those inadmissible materials given the timing at which the challenge was made, on the basis that I have excluded them from my mind when deciding the issues which arise for decision.

59.  For completeness, if I were wrong to have them excluded, I place little weight on those materials as well as the cross-examination and submissions made in reliance thereof, and would arrive at the same order for the reasons elaborated below.

G.  Custody

60.  As summarised above, whereas all 4 reports (3 SIRs and 1 CP Report) recommend joint custody, the Mother seeks sole custody. The Father is prepared to agree to joint custody, but in light of the Mother’s stance, he also says he should be granted sole custody.

61.  The Mother placed at the forefront the problematic communication between the parties as the reason for sole custody in her favour. There is no serious dispute that the parties have not communicated with each other effectively since separation and the Child has been acting as a go-between where parental coordinator service failed. The high level of mistrust in 2020 to early 2021 also resulted in police intervention and the Bind Over Order.

62.  At my invitation, the Father produced the agreed statement of facts dated 21 December 2020 in the criminal proceedings arising from the Female Toilet Incident upon which the Bind Over Order was made (“Exhibit R1”). The Mother was keen to emphasize that the Father agreed to the events as described therein, namely on 24 October 2020 the Father rushed into the female toilet in a shopping mall, grabbed her hand, scratched her face and neck and then pushed her onto the floor, resulting in the charge for one count of assault occasioning actual bodily harm. In cross-examination, the Father denied the statement reflected the truth, but he said he admitted to those facts because he did not want to defend the proceedings.

63.  For purposes of these proceedings, it is unnecessary for the Court to come to a view on what transpired at the Female Toilet Incident. I accept the content of Exhibit R1 as admitted by the Father led to the Bind Over Order, and that whatever may have been his reason or motive, it is a fact that violence had been used on that occasion.

64.  In her closing submissions dated 30 June 2022, the Mother described the Father as “an aggressive person with zero respect to others”, “extremely self-centered”, “confrontational” and “holds a lot of grudges”. She referred to an email dated 15 June 2020[vi], where the Father addressed her as “Liar Ip”. She was highly critical of the Father’s obtaining and reliance upon materials (such as WhatsApp messages and recordings discussed in Section F above) taken without her consent. She also described the Father’s breach of interim maintenance orders as “irresponsible” and “a parasite to society”. She concluded that he would “never cooperate and have any intention to co-parent with [her]”.

65.  In cross-examination, the Mother also went through a number of disappointing instances in their collaboration as separated parents, e.g. arguments in the US trip of summer 2019, the Father’s failure to inform her of his new address in June 2020, the Father’s failure to return the Child on time after access in February and May 2020 leading to police intervention, the Female Toilet Incident etc. Suffice it to say they are mostly in the past, and I do not think it is necessary or helpful to dwell on who was right or wrong when it is not disputed that access went smoothly for the past year without similar problems.

66.  The Father also made disparaging remarks of the Mother in his oral closing, describing her as liar and pointing to her affairs in particular with the Man which caused the breakdown of the marriage. In cross-examination, some focus was placed on the materials which I consider inadmissible in Section F above.

67.  I accept despite the breakdown of marriage having occurred in 2018, the parties still harbour negative feelings towards each other. As described above, their respective cross-examination at trial sometimes turned into an emotional squabble. But I wish to emphasize that notwithstanding the unhappy and rather high conflict past, I was impressed by the way that they were able to proceed in a largely civilised manner.

68.  In the CP Report §43, Ms Chin recommended joint custody on the following basis:

“The father has his strengths too. I am impressed by his ability and thoughtfulness to arouse interest in topics and activities which [the Child] likes and enjoys. The many activities and trips he arranged for [the Child] also demonstrates the father’s love and care of [the Child]. The way he teaches [the Child] to do mathematics is also effective and impressive. Although the mother prefers sole custody of [the Child] the share of custodial right of the father should not be denied….” (emphasis supplied)

69.  Her evidence is this respect was not challenged by either party in cross-examination.

70.  The SWO’s consistent recommendation for joint custody is somewhat more detailed. It is also important to note that the conviction in such recommendation grew stronger as time goes by:

(1)  1^st SIR dated 30 June 2020

“35. The information gathered during the present adjournment indicated that despite their disharmonious marital relationship leading to the present divorce, both [the Mother] and [the Father] showed their genuine love to their only daughter. They were also concerned about the daughter’s healthy upbringing and did pay their efforts in supervising and giving company to [the Child] in her schoolwork and other daily routines, which was verbally confirmed with the girl during the [SWO’s] individual interviews with her. It is in fact treasurable that both of them had once involved in the decision-making process to choose an international school for [the Child] in 2018. Regardless their high conflicts over the access arrangement during the current unpredictable school suspension and half-day school period, they both agreed that they had the right of giving views regarding the decisions significant to the girl including her education, medical treatment and religion. Also, their willingness to accept the coordination service provided by SCSC reflected their genuine concern and recognition to [the Child’s] needs for love and affection from both parents, as well as their good intention in searching possible ways to minimize their conflicts, which would be the basic contribution to the healthy growth and development of the child. It is hence anticipated that joint custody would be worthy to try for them though they considered it difficult to communicate with each other.” (emphasis supplied)

(2)  2^nd SIR dated 29 October 2021

“23. As [the Child’s] sharing of her inner frustration served an alarm for [the Father] and [the Mother] to contemplate their roles as separated parents, and how their conflicts had imposed impact on their daughter. They both should come to realise that though the breakdown of the marriage as husband and wife seems irrevocable, the roles as father and mother should continue and deserve their ongoing co-operation. With their high level of education and possession of respective resources and strengths, coupled with their genuine love and concern for [the Child], this is an opportune time for them to join hands in bringing up [the Child] to nurture her growth in a secure, safe, harmonious and peaceful atmosphere. The [SWO] sees that though the [Mother] and the [Father] did have conflicts in the past in arranging the access, noticeable improvements in terms of cooperation could be seen from their choice of extra-curricular activities for their daughter, their participation in the 8-hour co-parenting course at two SCSCs as directed by the Court, and their satisfactory compliance with the terms of access as directed by the Court on 6 September 2021.” (emphasis supplied)

(3)  3^rd SIR dated 25 March 2022

“13. Following the Court’s order on 12 November 2021 with well-defined access arrangement, the access has since been running smooth with no need for intervention. As observed, while the [Mother] and the [Father] continued to demonstrate that they were both caring and supportive parents, they have made a significant step to follow the Court’s instruction, notably seen form the smooth handover of [the Child]. Under both parents’ cooperation in the past months which fostered a harmonious atmosphere for [the Child], [the Child] was seen relaxed and spontaneous. As reported by [the Mother], [the Child] resumed as a sweet girl at home with lots of smiles and such sign should also be encouraging for the parents to contemplate their roles and continue their collaboration to nurture [the Child]. Parents’ collaboration on the custody and access would be fundamental in the overall growth and development of the child concerned or otherwise stumbling block.” (emphasis supplied)

71.  In answer to this Court’s questions at trial, Mr Chung further elaborated on his recommendation for joint custody as follows:

(1)  The recommendation is not merely aspirational. He truly believes that both parents can achieve the level of cooperation required given their educational background and resources;

(2)  It is notable that both parents have already completed co-parenting courses. They can learn to be better co-parents, and to collaborate on important decisions such as change of school and medical decisions.

72.  In answer to my questions, the Mother agreed that major decisions relating to the Child would require the Father’s agreement (as opposed to merely consultation of his views), such as relocation or going to boarding school.

73.  Similarly in answer to my questions, the Father accepted that both parents love the Child, and that he will try to reach agreement with the Mother on major decisions such as schooling, religion and medical support. He stated that there is no dispute on the Child’s religion, and that the parties are agreed that the Child would continue to attend at an international school, although I note the Mother previously intimated that in light of the Father’s breach of the interim maintenance orders, she would not be able to afford the Child’s school fees at an international school.

74.  This Court then referred the Father to the various instances in which his communication style was described to be very aggressive by the Mother, namely his banging on the table when the Judge did not give an order to his liking at the CDR, his 40-odd emails and many calls to the SWO between June and July 2021[vii], as well as the Female Toilet Incident leading to the Bind Over Order. The Father was invited to explain how his behaviour is conducive to joint custody and future co-parenting, to which he stated:

(1)  He accepted there was no communication with the Mother in the past 2 years and that change has to come about to improve communication. He pointed to the fact that many issues remained unsettled while proceedings were on foot thus a fertile ground for disagreement, but he accepted that with the trial concluded, disputes should be put to rest in light of a final order being made;

(2)  He wished to point out that the parties have already been collaborating on matters relating to the Child for some time now:

(a)  Since staying access restarted pursuant to the CDR Order, the parties were able to arrange transport of the Child’s day-to-day items between the 2 households;

(b)  The parties were able to agree as between themselves (albeit using the Child as a go-between) how the 2022 summer holidays is to be shared, in respect of which I have been shown “Exhibit P1” with both parties’ hand-written proposals and remarks. Having arrived at a 2-week rotating arrangement, both parties organised summer activities for the Child which may take place during the time with the other parent. Both parents are prepared to collaborate and bring the Child to activities organised by the other;

(3)  On the subject of overseas schooling which was raised by the Child herself as reflected in CP Report §30 and 2^nd SIR §16, the Father shared that in fact he wanted the Child to attend overseas school before her primary school years ended. In any event, he would try to collaborate with the Mother in order to minimise any dispute and to respect the Child’s own wish.

75.  Based on the above, it would appear that both parents are agreed on joint involvement on custodial decisions, namely schooling, medical operation, religion and extra-curricular activities: PD v KWW (Child: Joint Custody) §31.

76.  Furthermore, the parties are to be commended on the noticeable improvement in their ability to co-parent as the family settles into the new dynamics and challenges post-divorce. That much was apparent in the successive SIRs, particularly after well-defined interim orders were put in place with penal notice.

77.  As described by Mr Chung at 2^nd SIR §23, the Child’s wish to study abroad so as to avoid her parents and their conflicts sounded an alarm and made the parents realise the importance of overcoming their anger and disappointment with each other for the sake of their Child who needs them as cooperative and sensible parents.

(1)  As stated in 2^nd SIR §16:

“… [the Child] considered that both parents were nice and caring to her. However, she really hoped that they would be co-operative with each other regarding her access issue as she felt very frustrated with their past conflicts. Amidst the parent’s conflicts, she preferred not to share her views and feelings to her parents as well as the maternal grandparents. She had once revealed her wish to study abroad so as to get away from the fights between her parents.” (emphasis supplied)

(2)  This sentiment is echoed in the CP Report §41:

“[The Child] is impressed to be rather lonely. She hinted that she was unwilling to share with other people as they did not help her to keep secret. Instead, she preferred to talk to herself. This is a rather lonely statement by an adolescent girl. It makes one begins to wonder why [the Child] no longer shared with her parents or even the [Grandma]. Would one of the reasons be that she is upset that what she shares with them may be used as materials to attack the other side? I don’t have a definite answer because [the Child] does not disclose much. In any case, [the Child] commented that her relationships with both of her parents were better before than now. Perhaps being trapped in the seemingly never-ending conflicts of the parents and taking care not to say something to make either of the parents unhappy has somehow worsened the once good parent-child relationships in the early years of [the Child’s] life. [The Child] expresses clearly her wish to study overseas. Perhaps one of the reasons is that she wants to get away from the parental conflicts.” (emphasis supplied)

78.  I have reminded myself of the basis for a joint custody order as set out in PD v KWW (Child: Joint Custody) §§52-56. For the matters set out above, I consider with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their Child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the Child.

79.  Indeed whereas PD v KWW §56 refers to the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each other concerning matters of importance in the upbringing of the child, I am prepared to find this to be the case in respect of the parties.

80.  The Mother made repeated complaints of the strained relationship with the Father, and difficulties with communication.

81.  Focusing on problems with mistrust and distressed relationship, I note that PD v KWW §54 states that as a result of the breakdown of the marriage, the fact that relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Such orders look to the future.

82.  See also JDYS v. EYCK also known as KEYC (unrep.) FCMC 12871/2009 dated 9 March 2016, where a joint custody, shared care and control order was granted by DDJ Grace Chan (as she then was). Addressing similar complaints of problematic communication, the learned Judge cited with approval at §78 the case of H v A [2005] 1 HKFLR 304. In that case, the father applied for joint custody of his 18-month’s old child born out of wedlock. In allowing his application, HHJ Geiser had the following to say:

“24. … Mr Firmin on behalf of the mother urges me not to make an order for joint custody as he says there is for whatever reason a lack of communication on the part of the mother. I have already stated that I have doubts about this, but even if I am wrong, the question must be asked “why will she not communicate?”. If it is simply a case that she chooses not to because she does not like the idea of the Applicant being the father of D, then this can surely never be accepted. Put another way, is it right for a party (in this case the mother) to stand in the way and deny the other party (in this case the father) fundamental rights over his child simply asserting that she cannot, or possibly chooses not to speak to him? The answer to this must be no.

25. Of course, a natural element of joint custody involves co-operation, but the mother cannot be allowed to say simply that she is unable to co-operate and thereby have the court endorse her rights to sole custody. In my view, she must be encouraged to co-operate and this can be done quite properly by way of a joint custody order…” (emphasis supplied)

83.  As stated above, the Mother accepted that major decisions relating to the Child would require the Father’s agreement, although she disagreed with the SWO’s views that the parties can in fact collaborate to arrive at a joint decision. She referred to the failed attempts at mediation and parental coordination, and the accusatory stance adopted by the Father which she said cannot be for the best interest of the Child.

84.  She also relied on the Court of Appeal’s decision in Y v P (unrep.) CACV 140/2009 dated 14 August 2009 where an order for joint custody was replaced by one for sole custody. Rogers VP stated at §§23-24 that the judge appreciated at the time of trial and for 4 years leading up to then the parties were not in a position to co-operate, referring to email communications that generated resentment and antagonism. The order for joint custody was therefore found to be “more a matter of wishful thinking than a matter of practical reality”.

85.  Each case turns on its own facts. The Mother herself described that the problem with communication is the lack thereof since the Female Toilet Incident. There had been no direct communication between the parties for 2 years preceding the trial, such as by emails addressing her as a liar which she understandably found offensive.

86.  It is also important to point out that despite going through the terminal breakdown of their marriage, the parents were able to join hands for purposes of switching the Child out from a local school she attended for Primary 1 & 2, and enrolling her into the current international School in September 2018. This is a good example of the parents being able to look beyond their own troubled relationship, and act jointly in the best interest of the Child.

87.  Based on my observation at trial and relying on the SWO and CP’s reports and evidence, it is obvious that the parents are both well-educated, intelligent and resourceful. I have no doubt if they want to, they certainly have the ability to communicate well and effectively for the sake of their Child. For a start, it is encouraging to note that they both managed to desist from hostile interaction or exchange for the past 2 years. Furthermore, they both abided by the interim orders which enabled access to take place smoothly since September 2021, thus for a year now. It is clear that the Child has benefited from the parents’ joint attempts at civility, becoming “very sweet at home”, “relaxed and spontaneous” with stable emotions as described in the 3^rd SIR.

88.  In response to the Mother’s concerns relating to the Father’s unhelpful manner of communication in the past, I am pleased to record the Father’s answer to my question that he accepted change has to come about to improve communication for the sake of the Child.

89.  On a practical level, both parties agreed that appointing a parental coordinator can assist with details of access/ care arrangement as it is undesirable to have the Child act as their go-between. I shall elaborate further in this aspect when I come to the care arrangement.

90.  For all the reasons set out above, I accept the CP and the SWO’s recommendation that a joint custody order be made.

H.  What should be the care arrangement?

91.  As stated above, after separation the Child and the Mother lived in the Tai Wai Residence with a domestic helper. The Grandma and Grandpa also live in the same development. The Grandma offers hands on care and assistance, including cooking homemade meals for the Child every day to pack to school. The Child would also join the maternal grandparents for dinner every night before returning to her home and spend time with her Mother. I have already mentioned above that despite the Father’s allegation that the Grandma is emotionally unstable, he conceded that she has a good relationship with the Child.

92.  The Tai Wai Residence is around 120 square meters in gross floor area, equipped with 3 bedrooms and 2 bathrooms. The Child has her own bedroom which she decorated herself, and another separate study room.

93.  The Father lives alone in a rented apartment at Cheung Sha Wan, which is within walking distance from the School. The flat is around 60 square metres in gross floor area, equipped with 2 bedrooms and one bathroom. The Child has her own room.

94.  Mr Chung in his latest 3^rd SIR recommends shared care and control with a week-on-week-off arrangement for normal days and summer holidays, whereby handover takes place at the Mother’s residence at 8pm Sunday.

95.  As summarized above, neither party accepts this recommendation. By her open proposal, the Mother seeks to reduce the current access granted to the Father, limiting it to every alternative Sunday 12pm to 8pm only during school days. The Father’s 2-2-8-2 proposal lands on the other end of the spectrum, where the Mother would only have staying access for 4 nights every 2 weeks. I do not think either parent’s proposal is realistic, or properly caters for the best interest of the Child, in that neither affords the Child quality time with both parents as CP Report §43 and 3^rd SIR §11 emphasized.

96.  Staying access with the Father has been reintroduced by the CDR order of 12 November 2021. The Father was granted staying access in the first week of the month from Friday after school to Sunday at 8pm during term time, and equal sharing of the long holidays. It is obvious that the increased access time with the Father had a positive impact on the Child. As stated in the 3^rd SIR Report:

(1)  §7: the Mother observed the Child “had become very sweet at home and her emotion was stable. [She] thought that it might be due to the harmonious atmosphere between the parents as a result of both parents’ following the well-defined access arrangements on the Court’s Order. Also, she believed that [the Child] might have had good time with her father during the access with him”;

(2)  §9: the Father observed that in the recent months, [the Child] was much closer to him”. He observed that “she was more willing to share her life, inner feelings and thoughts with him”;

(3)  §11: the Child reported that “both parents were nice and caring to her. She said she loved both of them and enjoyed staying with them. She said her relationship with the mother was intimate whereas she could chat with the father like a close friend. She would like to have more quality time with both her parents and thus she hoped that the mother would engage less time in her work and her father spend less time on using his mobile phone.”

97.  In the circumstances, I am minded to consider the current arrangement as the starting point upon which adjustments and fine-tuning are to be made.

SWO Recommendation

98.  The SWO’s recommendation is of course not binding on this Court. As the Court of Appeal stated in WSM v. FSY [2005] 3 HKC 319 at §24 per Cheung JA, a social welfare report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted. Ultimately the decision-making lies with the judge based on the available evidence and guided by the relevant principles.

99.  See also the Court of Appeal’s Naziya Aslam v. Rafagat Ali (unrep.) CACV 144/2003 dated 9 March 2004 at §27 per Rogers VP, that the status of a recommendation in a report from a Social Welfare officer is not raised to the status of a decision which should only be interfered with on grounds similar to an appellate court interfering with an exercise of discretion.

100.  As stated above, Mr Chung changed his recommendation from sole care and control to the Mother in his 2^nd SIR, to shared care and control in his 3^rd SIR. He explained his reasons for doing so in his oral evidence as follows:

(1) For purposes of preparing the 2^nd SIR dated 29 October 2021, Mr Chung met the Child 8 times since he took up the case in April 2021 in order to ascertain her situation and her wish. As set out at §§16-18 of the report:

“16….[The Child] really hoped that [the parents] would be co-operative with each other regarding her access issue as she felt very frustrated with their past conflicts. Amidst the parent’s conflicts, she preferred not to share her views and feelings to her parents as well as the maternal grandparents. She had once revealed her wish to study abroad so as to get away from the fights between her parents.

17. In the individual interviews, [the Child] stated clearly that though she loved both parents, she would like to live with [the Mother] whom she had all along been living with and felt more comfortable to live with her in a more spacious flat. On the other hand, she also liked to stay at [the Father’s] place as she liked to play with his dog and join the activities arranged by her father. She also appreciated her father’s efforts in telling her jokes and teaching her Chinese and Mathematics.

18. Regarding future access arrangement, [the Child] considered staying access with her father was fine as she enjoyed the activities he arranged, though she might need some time to adjust as she had not been staying in her bedroom at her father’s place for a long time. On Sundays and in long holidays, she thought that she could meet and stay alternately with her father and mother on equal basis.” (emphasis supplied)

(2) In the 5 months between the 2^nd SIR dated 29 October 2021 and the 3^rd SIR dated 25 March 2022, Mr Chung conducted another 3 interviews with the Child lasting an hour each. He summarised the Child’s attitude at §§11-12 of the 3^rd SIR as follows:

“11. [The Child] considered that both parents were nice and caring to her. She said she loved both of them and enjoyed staying with them. She said her relationship with the mother was intimate whereas she could chat with the father like a close friend. She would like to have more quality time with both her parents and thus she hoped that the mother would engage less time in her work and her father spend less time on using his mobile phone.

12. [The Child] revealed that she had a stable and enjoyable living in the past months while staying with the mother and had long stay at the father’s residence. Due to the parents’ past conflicts from time to time, she would try to avoid letting the mother or the father know her contact with the other parent, for example, she used her friend’s name when contacting the father through a social App. As on the future living arrangement, she initially replied “I don’t know” as she did not have strong view on it and genuinely though that both parents were equally important to her and she loved them both. She shared that she slightly preferred to live with the mother as the mother’s residence was comparatively spacious and she could have homemade meals every day. She was also happy and looking forward to staying with the father as she treasured the time with the father and she liked to play with the dog kept by her father. [The Child] strongly hoped that the parents could maintain the current cooperation as she was exhausted in seeing their conflicts in the past. Regarding the future arrangement on Sundays and long holidays, she clearly indicated that she would like to meet and stay with her father and mother on equal basis.” (emphasis supplied)

(3) He noted an obvious change in the Child’s view towards care arrangement. In April to May 2021, the Child was hesitant in establishing contact with the Father. At the interviews for preparation of the 2^nd SIR, the Child expressed strongly and with much certainty that she wished to stay and spend more time with the Mother;

(4) However, by the time for preparation of the 3^rd SIR, the Child always said “I don’t know” to different propositions made by the SWO as to future arrangements, and also said that she liked both parents equally and wanted to spent time with both;

(5) Mr Chung attributed the change of attitude to the much longer time the Child spent with the Father during the long holidays, ie. Christmas 2021 and Chinese New Year 2022. I understand the Child had 30 days with staying access to the Father during this period.

101.  In answer to my questions, Mr Chung further elaborated upon his latest recommendation as follows:

(1)  He has considered the locality of each parent’s home viz-a-viz the Child’s School and extra-curricular classes. The Mother’s Residence is in Tai Wai (thus the Child would take school bus to and from the School) whereas the Father resides at Cheung Sha Wan (which is within walking distance from the School). He is of the view that travelling from either residence is feasible;

(2)  He has asked the Child for her view on the week-on-week-off arrangement by open questions, and also gave her other options for purposes of discussion. However, the Child merely said “I don’t know”. This is reflected in 3^rd SIR §14, where the Child said she enjoyed staying with both the Mother and the Father, and “clearly indicated her wish to have a balanced arrangement on Fridays to Sundays and long holidays between her parents”. However, she had “no strong views on the weekday arrangement as it also involved her living pattern get used to and the arrangement of school attendance and after school activities”;

(3)  He conceded that before making the recommendation, he had not explored any contingency plan with the Father, ie. if the Father has to work in office or encounter situations where he has to leave the flat, and therefore the Child will be unattended. He relied on the Father’s representation that he works from home most of the time, and believed that the Father can arrange for someone to look after the Child if necessary. He considered that a part-time worker can help with housework, although he did not have evidence that the Father had the benefit of such help;

(4)  As to the Child’s strong bonding with the Grandma, Mr Chung considers that insofar as cooking is concerned, the Father can also manage with the assistance of a part-time helper or to dine out. He is of the view that because the Child is older now, it is more important for her to spend time with her peers and less with the Grandma.

102.  Mr Chung did draw attention to the fact that ultimately, he felt the Child expressed “a slight preference” for living with the Mother. As recorded in 3^rd SIR §12 and quoted above, the Child said this was because “the mother’s residence was comparatively spacious and she could have homemade meals everyday”. He explained in his oral evidence that the Child’s slight preference to live with the Mother was likely to be for “day-to-day living convenience” (e.g. home-cooked meals), but not so much which parent is to be granted care and control.

103.  I would have thought “day-to-day living convenience”, including the food on offer, is quintessentially a matter of care and control. In PD v. KWW §32, it is said that “decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature… [arising] out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care”, e.g. what to wear, daily routine of homework, TV, bedtime etc.

The Child’s View

104.  The importance of giving weight to a child’s view has been emphasised by the Court of Appeal in YSYM v. LHB [2020] HKCA 586 at §71, citing the following paragraphs of Re R (Residence Order) [2010] 1 FLR 509:

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

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

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

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

105.  The Child is now 12 years old and on the cusp between childhood and adolescence. I have no hesitation to give considerable weight to her view where clearly expressed, but I accept as Mr Chung has pointed out that there appears to a change in her attitude and her current thinking is somewhat ambiguous or equivocal. The CP Report of 29 October 2021 (thus pre-dating staying access with the Father over the long holidays) recorded at §§27, 40 & 42 that the Child clearly stated she wished to stay with the Mother, but it is obvious that her view has softened by the time of the 3^rd SIR.

CP’s View

106.  In answer to my questions, the CP stated that she has not had the benefit for reading the 3^rd SIR, or to meet the family since the CP Report. Her view of “relatively sufficient father-daughter time” as recommended at CP Report §43 based on her observations then was to provide for staying access to the Father over the long holidays and also once to twice a month. This was more or less achieved by the CDR Order.

107.  When invited to share her views on a week-on-week-off arrangement, the CP elaborated as follows:

(1)  In her view, both parties can provide proper care to the Child. There is no particular concern for an adolescent girl to stay with an opposite sex parent in this case;

(2)  The pressure on the Child is not so much who she is to live with, but her being “triangulated between the conflicts of the parents” (CP Report §40). The Child does not wish to upset either side, and thus she avoids picking one side. She even mentioned wanting to leave for overseas education so as to escape the parental conflict;

(3)  So long as the arrangement does not require her to show any preference of one parent over the other, it would good for her. As stated in CP Report §27, the Child said she would let this Court decide for her the issue of staying access, because “if it is court order, my parents will not be unhappy with me”;

(4)  Her best interest requires an arrangement which reduces her psychological stress, which is more important than where she is physically located;

(5)  As to the weekly moving of residence, the CP was of the view that living in different neighbourhood is not a concern. Notwithstanding the attachment and bonding which has formed over the years between the Child and the maternal extended family, it would sufficiently address the Child’s needs if she can meet with the Mother and Grandma on alternate weeks. Afterall, the Child is now older and has her own social circle. She was observed to confide less in Grandma anyway compared to when the proceedings first commenced.

Mother’s View

108.  I shall now deal with the parties’ own arguments in support of their respective open positions for sole care and control and the access time that ensues. As stated above, the Mother relied on (i) the same problem with communication and mistrust, and (ii) that the Father is not a suitable carer, given the lack of family support system, and his limited involvement in the Child’s school and extra-curricular activities.

109.  Regarding the first issue, it is said at JDYS v. EYCK[viii] §79 that:

“Without doubt, it is a usual phenomenon that separated parents, distressed by the breakdown of their relationship, will face some kind of communication and/or trust problems of varying degrees and the parents of this case are of no exception. As such, the sole and mere allegation of difficulty in communication is not by itself sufficient to persuade the court in not granting a shared care arrangement if it is in the best interest of the children...” (emphasis supplied)

110.  I have already set out in detail my observation and findings on the parties’ communication in Section G above. In short, I do not consider this hurdle unsurpassable, especially in light of the parties’ agreement to appoint a parental coordinator who can assist with access/ care arrangement. I was told that the agreed summer access schedule at “Exhibit P1” was arrived at by troubling the Child with carrying a physical copy of the draft schedule from one parent to the one to obtain their comments/ agreement. Both parties agreed it is undesirable to have the Child act as a go-between in such a manner. Hopefully, a parental coordinator can offer the necessary assistance to lessen the Child’s burden.

111.  The Mother was concerned that a week-on-week-off arrangement would generate many more dispute which cannot be resolved by placing a set of the Child’s items in each residence.

112.  The Mother cross-examined the Father on his withholding of the Child’s belongings after access, his unhelpful practice of making a list of items to exchange and refusal to facilitate the moving of large items such as ski gears although he alone had the use of a private car. The Father pointed out the Mother would not give him what he needed, and therefore he had no choice but to place conditions for exchange knowing the Mother love the Child and would comply. There was also a particularly heated exchange over the Father’s refusal to let the Child have her ice-skate boots in December 2019[ix], which led to inconvenience and disappointment as the Child had to first use rental boots before the Mother managed to purchase another pair for her.

113.  Such horse-trading of the Child’s items is of course not conducive to co-parenting, but I am glad to note that those events took place some time ago in 2019[x]. I understand that access since the 6 September 2021 Order went smoothly, including the equal sharing of long holidays.

114.  I accept that more coordination may be required between the two households during school term if the Child is to spend significant time at both places. Riding on the experience of having a year of smooth access and together with the assistance of a parental coordinator, I do not think this is a concern which should lead me to order less time to be spent at a particular household than I would otherwise have done.

115.  As to the second concern that the Father is not a suitable carer, I understand the Mother to say:

(1)  He does not have any family or support system comparable to what she enjoys with the maternal extended family and a live-in domestic helper;

(2)  His work-from-home arrangement is not a formal company policy and attendance in the office may be required especially when the city learns to live with Covid; 

(3)  his involvement in the Child’s school and extra-curricular activities is limited.

116.  I accept that the Father’s support system is less strong or established in the Child’s life compared to the Mother’s. As things stand, the Father lives alone and therefore if he is required to work in the office or encounter situations where he has to leave the flat, the Child will be left unattended. Indeed as stated above, Mr Chung conceded he had not explored any contingency plan with the Father. I understand this has not been a real problem in the past given staying access took place over weekends /long holidays only and the Father was able to work from home during those periods. However, if the Child is to spend extended time during school days at the Father’s residence, this is a matter that warrants more careful consideration.

117.  In answer to my questions and the Mother’s, the Father was keen to point out that for pick-ups on Friday afterschool, the Child is old enough to walk from the School to his home together with her friends if he is not able to pick her up personally. If there is contingency that requires him to leave his home, his elder sister, brother and neighbour can lend a hand. He also said that he currently employs a part-time domestic helper, and would be willing to hire part-time or full-time help to look after the Child if needs be.

118.  The Father accepted that none of the SIRs referred to the support he expects to be available from his siblings, neighbour or hired help. However, he pointed out the Child met his elder sister 3 times in the month of June, his brother 3-4 times in the past 2 months over meals, and have also met his neighbour who has children of her own. However, the Child has not met the part-time help as she attends the flat outside access hours.

119.  The Mother pointed out that during marriage, the Father had to work in the office. The Father said he has always had the flexibility of working from home as he is a back-office solutions manager, and he made use of that flexibility in the past 6 years. While his contract hours are 9am to 5pm, he used to attend office between 10am and 4pm, and now logs in from home between 9am and 3pm. He may have some odd hours meeting early or late in the day as his superior operates in US time zone.

120.  Separately, the Mother made the point that most of the Child’s extra-curricular activities were organised by her, which is understandable given the Child stayed with her post-separation. She also identified a number of instances where the Father did not see to it that the Child attends extra-curricular classes during his access time, such as for ice-staking and painting on 4 December 2021[xi], and more recently on 25 June 2022. The Father explained that he took the Child on a staycation for the first resumed staying access on 3-5 December 2021, and that the Child felt unwell with sore throat on 25 June 2022. He revealed that notwithstanding the Child had attended painting class at the same place since she was 2.5 years old, he did not know the name of that place nor have its contact information, and therefore he did not take the trouble of informing the teacher.

121.  The Mother also suggested that the Father does not keep abreast of the School’s “connect weekly” emails, nor provide sufficient assistance with the Child’s homework or school project, especially compared to the support given by herself and the maternal extended family.

122.  Lastly, the Mother suggested the Father is not a suitable care and control parent given he is of the opposite sex, and his ability to care for the Child is questionable in light of the Sex Video Incident in July 2020.

123.  Both the CP and Mr Chung made clear in their oral evidence that there is no concern for the Child to spend extended time including staying access with the Father by reason of their different gender. As stated in CP Report §26 and elaborated in oral evidence, the Child said she was not upset by the Sex Video Incident and she did not think about it anymore. The CP did not discern any problem in this regard.

124.  Ultimately, the Mother objects to a drastic change to the current access arrangement in the form of a week-on-week-off time split as the Child has been with her and her family since birth, and that she feared it would engender a lot of dispute. She is also of the view that the arrangement lacks stability and is not in the Child’s best interest.

Father’s View

125.  On the other hand, the Father says he is a more suitable care and control parent.

126.  In support of his prowess in supporting the Child’s academic and sport development, he relies on the comment at CP Report §43 that the CP was impressed by his ability and thoughtfulness to arouse the Child’s interest in topics and activities, and also the effective way he teaches the Child mathematics. He also relies on 2^nd SIR §17 where Mr Chung recorded the Child saying she appreciated her father’s efforts in teaching her Chinese and Mathematics.

127.  The Father also relied on a WhatsApp message sent by the Mother on 22 January 2017[xii] whereby she suggested hiring a tutor to assist with the Child’s studies, and that she would not involve herself in the Child’s studies after she did much of the work that got the Child admitted into the School. I do not think I can place much weight on a message made 5.5 years ago, when it is not disputed in recent years, the Mother and indeed the extended maternal family supported the Child’s studies, as the Brother confirmed in his oral evidence.

128.  In answer to the Father’s cross-examination, Mr Chung emphasized that whereas teaching the Child personally is good, it is equally good to engage private tutor if it can help the Child as the Mother did. He was keen to make the point that he would not pick one parent over the other to support the Child’s academic pursuit, and that both parents should collaborate.

129.  The Father spent some time cross-examining each of Mr Chung, the CP and the Mother on his proposition that the Grandma is emotionally unstable and not suited to give care and support to the Child. I refer to my analysis at Section F above, and in particular, the fact that the Father himself confirmed in answer to my questions that he accepted the Grandma and the Child are on good terms and have a good relationship. As such, I do not think this is a point which should be taken against the Mother.

130.  The Father explained that without a long-term child arrangement in place, he had not made the changes which he is prepared to make if the Child is ordered to spend more time at his residence, such as to hire help to assist with child-caring and domestic duties or even to move to a larger space.

Conclusion

131.  As stated in the beginning of this Judgment, I have no hesitation in accepting that both the Mother and the Father love and care for the Child very much. I also draw from the CP Report, SIRs and their oral evidence that both parents are able to provide suitable care to the Child. I accept the recommendation that the Child should be spending substantial time with both parents in order to benefit from their equal love and care, and their different strengths. I also bear in mind the improvement in the Child’s emotions and stability after staying access with the Father resumed pursuant to the CDR Order.

132.  Given the subsisting level of conflict between the parents, I consider a parallel parenting regime under a shared care and control order to be in the best interest of the Child: SKP v. Y, ITT §22. This in line with the interim shared care order dated 16 July 2020.

133.  In setting out how time is to be split below, I bear in mind the following considerations:

(1)  The Child’s strong wish to spend quality time with both parents with equal sharing of weekends and long holidays, and a mere slight preference to stay with the Mother in contrast to a strong preference clearly expressed in earlier reports;

(2)  Each parent is able to meet the Child’s physical, emotional and educational needs, but it is best that they collaborate so the Child can benefit from their respective strengths;

(3)  The Child’s relationship with each parent has been observed to be good and intimate, and also with the maternal family especially Grandma;

(4)  I have described the Sex Video Incident and the Female Toilet Incident at which the Child was involved. Luckily, neither of the CP nor the SWO identified any harm suffered by the Child. I note in particular that the CP Report §26 stated the Child no longer felt unhappy or upset about such incidents;

(5)  any change to the Child’s living arrangement during term time would be entirely new in the post-separation years, and therefore it should be introduced in an incremental manner so that not just the Child but also the parents and extended families can adjust to the changes and sort out the practicalities of extra help and amenities;

(6)  the fact that the Child is now 12 years old and thus moving onto adolescence with the maturity, social life and self-care ability that comes with that age. The possibility of attending an overseas school has been raised by the Child herself, and it would be to her benefit to spend sufficient quality time with both parents before such important decision is made; and

(7)  the fact that both parents are agreeable to facilitating the Child’s electronic access with the other parent and in particular, the Father made clear this can be done with the Grandma when the Child is spending time with him.

134.  I understand that the Child has just commenced her secondary education at the School for this academic year. As such, I am minded to continue with the present arrangement under the CDR Order for the first school term, save that weekend staying access with the Father during term time be increased to once every 2 weeks and adjustment be made so that the Child spends Sunday with each parent on alternate basis.

135.  Starting from the second term after the Christmas holidays, I shall adopt Mr Chung’s recommendation for a week-on-week-off arrangement during term time as well, with pick up and drop off at 8pm Sunday at the main gate of the Mother’s residence. I bear in mind the fact that the Father has the use of a private car, therefore it is more convenient that he travels to the Mother’s residence. Given the Child will be spending a week at each residence, it is possible that she would have to bring certain items to and from the two flats where it is not practical to keep two separate sets for her. It is therefore better that any shuttling take place over the weekend with less time pressure, and so that items need not be brought to and from school.

136.  Given all handover is to take place at either the School or the main gate of the Mother’s residence, I do not think it is necessary to make an order that the Mother does not involve her relative(s) or family member(s) during pick-up arrangement of the Child.

137.  It would be to the Child’s benefit to be exposed to both parenting style, and I accept Mr Chung’s evidence that notwithstanding the differences between the two residences and their localities, it would be feasible for the Child to attend school from either abode. The Father would be able to become more involved in the Child’s school and extra-curricular activities. The present collaboration over summer classes that extends to the other parent’s time with the Child also inspire confidence.

138.  The incremental approach to transition is made with the view of giving the Child sufficient time to settle into a new and first term in secondary school, and also that the parents, especially the Father, be given time to put in place further support, such as hired help or arrangement with his family members / friends, so that the Child can stay at his home on a more extended basis.

139.  In this regard, I do not agree with the Father that changes to the care arrangement should take place immediately because he considers he can support the Child’s academic and sport pursuits personally and that their relationship is close. One must bear in mind the practicalities of transitioning into a week-on-week-off arrangement during term time. I urge both parties to make good use of the remaining months in 2022 to ensure the new arrangement takes place smoothly.

140.  Given the level of conflict between the parents and the changes that are to come, I consider it appropriate that the SWO continue to supervise this case for another year and provide updating reports in 6 and 11 months’ time.

141.  I also direct that the parties do engage a joint parenting co-ordinator to be recommended by the SWO to assist with the care arrangement and transition.

142.  Lastly, I urge both parties to lay the past to rest and put forth the best version of themselves as parents for the sake of the Child. It is obvious their good efforts in the past year had a very positive and noticeable impact on the Child, who blossomed under their nurturing, love and support. Having seen the parties for 5 days and heard from Mr Chung and the CP, I believe both parents genuinely love the Child and would be able to facilitate a shared care arrangement that is in her interest.

I.  Long holidays and special days

143.  The parties are agreed on the equal sharing of long holidays. I order that for long holidays other than the summer holiday, the first half be to each parent alternately. As for the summer holiday, I accept the Mother’s proposal as reflected in the summer arrangement for 2022 that rotation be made on 2-week basis such that the Child is not deprived of the physical company of a parent for too long.

144.  Each parent will also have the care of the Child on special days, ie. their birthdays, Father’s Day and Mother’s Day. They will have alternate day care of the Child on her birthday.

145.  In his open proposal, the Father raised the point that because he has not had the chance to spend time over long holidays and special days with the Child from October 2020, he asked to care for the Child over the entire first summer and Christmas holiday after trial, and for all short holidays for 1 year after the trial. He also wished to have the Child’s birthday for 2 consecutive years after trial.

146.  This was not seriously pursued at the trial, but in any event, I do not think it is in the Child’s best interest to be deprived of time with the Mother over future holidays in the manner proposed.

147.  I will simply direct that the Father is to have the first half of the next long holiday, which I understand to be the October term break. He shall also have day care of the Child’s birthday on 24 May 2023. The rest will be arranged on alternate basis with the Mother.

148.  In the absence of submissions on the possession of the Child’s travelling documents and future travel plans, I make no directions and urge both parents to apply their good sense in this regard in the spirit of co-parenting.

J.  Conclusion

149.  Due to the matters set out above, I now order as follows:

(1)  The parties be granted joint custody of the Child with shared care and control;

(2)  Care arrangement from the date of this Order until the last day of school before Christmas holiday 2022 on 2-week rotation:

(a)  Week 1 (being the week when this Order is made):

Friday: The Father is to pick up the Child directly from School at the end of the school day (or at the main gate of the Mother’s residence at 3:30pm if it is a non-school day) and return her to the Mother at the main gate of the Mother’s residence at 8pm;

Sunday: The Father is to pick up the Child at the main gate of the Mother’s residence at 1pm and return her to the Mother at the main gate of the Mother’s residence at 6pm;

(b)  Week 2: the Father shall have staying access from Friday after school (or from 3:30pm if it is a non-school day) to Saturday at 8pm. He shall pick up the Child directly from school or the Mother’s residence as the case may be and return the Child to the Mother at the main gate of her residence on Saturday 8pm;

(3)  Care arrangement from the start of the second term in January 2023 on 2-week rotation:

(a)  Week 1: the Father shall pick up the Child from the Mother at 8pm on Sunday at the main gate of the Mother’s residence;

(b)  Week 2: the Father shall handover the Child to the Mother at 8pm on Sunday at the main gate of the Mother’s residence;

(4)  Long holidays lasting for 4 days or more other than summer holidays, to include Christmas, Lunar New Year and Easter:

The Mother and Father do share such long holidays equally, the first half of the holidays be to each parent alternately, starting with the Father to have the first half of the October 2022 term break. The handover of the Child shall be conducted at 12:00 noon on the first day and 8:00pm on the last day at the main gate of the Mother’s residence;

(5)  Summer holidays: the parties do share summer holidays equally on a 2-week rotation basis. The handover of the Child shall be conducted at 12:00 noon on the first day and 8:00pm on the last day at the main gate of the Mother’s residence;

(6)  Birthdays:

(a)  The Mother/ Father shall have day care of the Child on her/ his birthday even though the birthday may not fall within her/his week of care of the Child. For school day, the Mother/ Father shall pick up the Child from the school and handover the Child at the main gate of the Mother’s / Father’s residence (as the case may be) at 8pm. For non-school day, the Mother/ Father shall pick up the Child at 12:00 noon and handover the Child at the main gate of the Mother’s / Father’s residence (as the case may be) at 8pm;

(b)  The Mother/ Father shall have day care of the Child on the Child’s birthday alternately even though her birthday may not fall within her/his week of care of the Child. The Father is to have day care of the Child on 24 May 2023. For school day, the Mother/ Father shall pick up the Child from the school and handover the Child at the main gate of the Mother’s / Father’s residence (as the case may be) at 8pm. For non-school day, the Mother/ Father shall pick up the Child at 12:00 noon and handover the Child at the main gate of the Mother’s / Father’s residence (as the case may be) at 8pm;

(7)  Mother’s / Father’s Day:

The Mother/ Father shall have day care of the Child on Mother’s / Father’s Day irrespective of whether that day falls within her/his week of care of the Child. The Mother/ Father shall pick up the Child at 12:00 noon and handover the Child at the main gate of the Mother’s / Father’s residence (as the case may be) at 8pm;

(8)  The parent not having the care of the Child do have unrestricted telephone or videochat access to be facilitated by the other parent. The Father do facilitate unrestricted telephone or videochat access to the Grandma when the Child is in his care;

(9)  There be a supervision period of 12 months from the date of this order by the Director of Social Welfare. Updated reports be submitted in English in 6 months’ time and in 11 months’ time;

(10)  All interim access orders shall be discharged when this shared care arrangement takes effect;

(11)  the Child shall not be removed from Hong Kong without leave of the Court but provided that if either parent gives a general undertaking to the court to return the Child to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the said Child from Hong Kong for any period specified in such written consent;

(12)  The parties are directed to engage a joint parenting co-ordinator to be recommended by the SWO. Parties should write a joint letter to the SWO inviting his recommendation within 21 days from the date of this order and lodge a joint letter informing the Court of the identity of the chosen joint parenting co-ordinator within 14 days thereafter;

(13)  A penal notice shall be endorsed. Personal service of this court order shall be dispensed with;

(14)  Given that this is a child related matter and neither proposal of the parents is accepted by this Court, I shall make an order nisi that there shall be no order as to costs including all reserved costs, to be made absolute at the expiration of 28 days.