FJ v. DTD

FCMC 14138/2012

[2020] HKFC 50

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER of 14138 of 2012

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JUDGMENT
(Variation of Custody and access)

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The Application

1.  This is the application of the petitioner mother (“mother”) to vary the custody and access arrangements of her son : C, born in February 2008 (12 years old).  The respondent father (“father”) strongly opposes the application.

2.  This has been a high conflict case for 10 years since the parties’ separation in 2010.  On 10 September 2014, the learned Deputy District Judge A. Yim, after a 6-day trial (“2014 Trial”), made an Order that joint custody of C be granted to the parties with care and control to the mother and defined access to the father, including day access and staying access each week.  Holiday access, including Summer holidays and Christmas holidays, were to be shared equally in principle, with the parties free to make their own arrangements for their holidays with C.  There was provision for daily video calls or telephone calls. Neither party was to remove C from Hong Kong without leave of the court. 

3.  There have been several court orders for variations of the access arrangements since, including, inter alia, on 9 June 2015 (summer access) and 15 September 2015 (advance notice and overseas access), 13 June 2016 (Christmas and Summer access in 2016), 21 November 2016 (access in November), 27 November 2017 (interim telephone access, day and staying access), 13 June 2018 (suspension of overseas access), and 11 December 2018 (access for 2019 and advance notice of Hong Kong access), 20 May 2019 (overseas trip to Gothia with the mother).  The general removal restriction was also removed.

4.  The mother took out the present summons on 4 May 2017 seeking: -

(a) to grant C unhindered access in and out of Hong Kong with the mother;

(b) the father’s access to C be limited to designated days and telephone call access be limited to two times a week;

(c) the father’s access out of Hong Kong be limited to two weeks at a time;

(d) updated social welfare reports to be provided on whether C wishes to travel to Indiana in the summer 2017;

(e) sole custody of C to the mother.

5.  Since then, access has been ordered to take place in Hong Kong.  The trial was originally scheduled on 11 December 2018, but was re-fixed to 26 August 2019 by the learned Deputy District Judge D Cheung due to the absence of the father on the first day of trial.

6.  On the same day, the learned Judge allowed paragraph (c) of the Summons to be amended to “the father’s access to take place in Hong Kong and there be no overnight access”. He ordered that overseas access to be temporarily suspended pending the outcome of the trial.   He further directed that C shall not be removed from Hong Kong for more than 3 days without leave of the Court but provided that if either parent gives a general undertaking to the court to return C 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. (“Restriction Order”).

7.  For the moment, the father’s access is ordered to take place in Hong Kong with telephone access on Tuesday, Thursday, and Sunday. 

Background

8.  The parties and C are all American citizens, the father from Indiana and the mother from California. The father is now aged 49 and the mother 53.  Both are well educated. They got married in 2005 and separated in 2010.  Decree absolute was granted in May 2016.  C is the only child to the marriage.  There have been numerous disputes on financial and access issues between the parties, and they had to seek assistance of the court throughout the years. 

9.  The father received his bachelor degree of science in Indiana.  In 2005, he stayed mainly in Hong Kong and set up his own business here.  He later got his MBA in Hong Kong.  His mother passed away in 2010 and his father in March 2012.  In or around this period of time, he traveled between Hong Kong and Indiana to operate his father’s business in Indiana.  He also formed a new romantic relationship in Indiana.  He finally returned to Indiana to live with his current wife.  Four children were born to the new relationship.  They are now aged 6, 4, 2 and 3 months respectively.  The father’s siblings and their families also live in Indiana.

10.  After the closure of his father’s business in mid-2016, he experienced unemployment and change of employment. In January 2019, he started his new employment as a Director of Strategic Partnerships in a group company in Indiana and received stable income.  He was awarded substantial damages in a commercial lawsuit in or around April 2019.

11.  The mother is of Chinese origin, born and raised in California. Her family members reside in California.  She received her bachelor’s degree of arts and juris doctorate degree in law in the United States.  She then practiced law in several companies and became a U.S. licensed attorney. Since early 2000, she has been staying in Hong Kong. Starting from 2007, she has been the Managing Director of a bank in Hong Kong.  She was diagnosed with serious illness in 2014, and has been in good health since 2015.

12.  C continued to be in the mother’s care and control when the father moved out of the former matrimonial home in September 2010.    At present, he lives in Hong Kong with the mother and is in Grade 6 at an international school.  He has been a key member of the school soccer team for more than 5 years.  He joined at least 3 overseas international soccer tournaments in December 2018, April 2019 and July 2019 respectively. In 2019, he was awarded a prize for his outstanding achievements in soccer by his school.

The Mother’s Case

13.  It is the mother’s case that there have been significant changes in circumstances since the 2014 Trial. The existing custody and access arrangements are not working for C.  Full consideration should be given to his firm views and wishes : not to have holiday access in Indiana or staying access, telephone access to be reduced from three times to twice per week, all removal restrictions to be removed.

14.  The mother complains the father to have held a distorted view.  Instead of acknowledging the son’s wishes are genuinely held, he leveled false accusations of alienation and access-obstruction against her.  Not only he has rarely exercised access after the 2014 Trial, he has the practice of delaying confirmation of his access plans and refusing to accommodate C’s wishes and diary, leaving both the mother and C in anxiety and uncertainty. 

15.  The lack of trust and hostile communication between the parties has caused great stress to her.  She has tried her best to shield C from the conflict between the parties, but C is old enough to work things out by himself and express his own views.  The level of mistrust between the parties is higher than ever and they have had to repeatedly return to court to resolve child-related issues. She therefore asks for the custody and access arrangement to be varied for the best interest of C.

The Father’s Case

16.  The father complains that the mother, with great determination to exclude him from C’s life, has been aggressively seeking to restrict his rights to access C by repeatedly removing C from Hong Kong during the father’s access time without leave of the court and making numerous Court applications to vary the existing access orders.

17.  He says that he had operated his father’s business in Indiana until its closure in July 2016.  Thereafter, he had to struggle for survival : unemployment, change of employments, losing commercial lawsuit.  He therefore could not afford frequent travel to Hong Kong for access or court hearings.  The mother took advantage of his financial difficulties and succeeded in obtaining several court orders to limit his access to C, including suspending overseas access. It was only until around April 2019 he finally succeeded in his commercial lawsuit and managed to secure a stable employment that he immediately instructed legal team to oppose the present application.

18.  He criticized the mother to have planted seeds of dissatisfaction into C and instilled her own plan of alienating C from him by telling C that the father was not respecting his views and wishes, damaging C’s relationship with him.

The Law

19.  Applications concerning arrangements for children are governed by s 3 of Guardianship of Minors Ordinance, Cap 13 (“Ordinance”), which states that: -

“GENERAL PRINCIPLES

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

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

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

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

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

20.  It is useful to make reference to the checklist as set out in the English Children Act 1989, UK when considering issues relating to custody and access. The checklist includes the following factors:

(a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding; the child’s physical, emotional and educational needs;

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

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

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

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

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

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

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

(i) 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 a regular basis;

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

21.  It will be a matter for the Judge whether or not to utilize the checklist as a way to ensure the matters relevant to the child’s welfare are addressed, and the Judge may cherry pick those factors which are relevant to the case before her :  H v N (children: variation of interim order) [2012] 5 HKLRD 498

The Legal Principles on Custody

22.  Of proper approach to the issue of whether a joint custody order is to be given, the Court of Appeal made clear in Y v P [2009] HKFLR 308 that whether the parties can cooperate is an important factor, such that the best interests of the children are protected :

“21. On this appeal, the first matter which must be considered is the question of custody. In this respect, attention has been drawn to the decision in ML v YJ, HCMC 13 of 2006, a decision of Rimsky Yuen SC, sitting as a Recorder, given on 23 May 2007. The Recorder’s judgment usefully sets out the law relating to custody. As the Recorder pointed out in paragraph 24, the first consideration as to whether to grant joint custody to both parents or sole custody must be the welfare of the child. The Recorder went on to state that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. The Recorder continued:

“(3) A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children.  Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’s upbringing.  However, if it is clear that a joint custody is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties.  As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.”

......

24. The important point, nevertheless, is whether given the existence of the lack of co-operation between the parties it would be right to order there be joint custody.  The basis upon which the judge so ordered appears to have been what has been referred to as aspirational….  In my view that is more a matter of wishful thinking than a matter of practical reality.”

23.  The importance of cooperation was echoed by another Court of Appeal case of PD v KWW (Child: Joint Custody)[2010] 4 HKLRD 191 :

“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.

57. At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”

24.  The focus will be on the impact of the child, and joint custody will not be ordered solely on an “aspirational” basis, as explained by the Court of Appeal in CCMJ v SSM [2013] 3 HKLRD 497 : 

“18. The learned judge made the order after expressly considering the principles in Y v P and PD v KWW. Those principles include the court’s recognition that if in a particular case it is clear that joint custody was unworkable, a joint custody order should not be made solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties (Y v P, para. 21).  The court would not make a joint custody order as a matter of “wishful thinking”; it must consider the “practical reality” of the situation (para. 24).  The court has recognized that “there may be occasions when the ability of the parents to reach any sensible accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable” (PD v KWW para. 57).”

25.  In brief, the law enjoins the court shall regard the best interests of the child as the first and paramount consideration.  In doing so, the court shall give due consideration to the views of the minor, if approximate, and any material information including social investigations report. There shall not be any discrimination against the father or the mother.  The exercise involves a careful evaluation of all the relevant circumstances and merits and demerits of the alternative proposals as they seemed likely to bear upon the minor’s interest : H v N (Children: variation of interim order) [2012] 5 HKLRD 498 at §21.

The Legal Principles on the Views of the Child

26.  In exercising the court’s power for child arrangements, consideration must be afforded to the view of the minor if, having regard to his age and understanding and to the circumstances of the case, it is practicable to do so : section 3(1)(a)(i)(A) of the Ordinance.

27.  The focus is on the child’s welfare, and not the rights of parents as set out in Gillick v West Norfolk and Wisbech Area Health Authority & Anor. [1986] AC 112 (HL) at §113 H :

“that the parental right to control a minor child deriving from parental duty was a dwindling right which existed only in so far as it was required for the child’s benefit and protection; that the extent and duration of that right could not be ascertained by reference to a fixed age, but depended on the degree of intelligence and understanding of that particular child and a judgment of what was best for the welfare of the child.....”

28.  With these principles in mind, I now turn to consider the arguments of the parties.

The Reports

29.  There have been a number of reports prepared for the present application including 4 social investigation reports prepared by Ms. Lau (respectively dated September 2017, May 2018, November 2018 and August 2019) and a clinical psychologist report prepared by Ms. Lam dated July 2019 (collectively the “Reports”) (Ms. Lau and Ms. Lam collectively the “Two Professionals”).  An international social investigation report had once been called for but was subsequently dispensed with as agreed by the parties because of some administrative difficulties of the relevant institutions.

30.  It is noteworthy that the Two Professionals made similar observations on the relationships among the parents and son.  They gave substantially the same opinion and made the same recommendation : sole custody of C be granted to the mother. 

31.  Ms. Lau made observations in her reports that the parents’ high conflict and no improvement on their communication and cooperation in co-parenting as reflected in their ongoing arguments, joint custody seemed to make the son more stressful and vulnerable.  Given the mother is still the main carer responsible for making all major decisions for the son and the father, living in Indiana, had little involvement in the son’s life, sole custody to the mother is still a preferred choice so as to reduce parental conflict on important issues, and to safeguard C’s best interest and maintain his stable life in Hong Kong.

32.  Ms. Lam made similar observations :

“there is extreme distrust in the parental relationship. Each parent is preoccupied with their own theories of the other parent being psychologically disturbed: the mother considered the father as a sociopath and the father considered the mother as having a behaviorally problem dominating and controlling the son: alienating him. In the current assessment, there is insufficient evidence to suggest that there is any psychological disturbances or personality issues for both parents. Considering the chronicity of the legal dispute, the court proceedings have continued to hurt the parental relationships with both of them busy attacking each other while defending themselves.......

The mother who is the primary carer (given that the father lives overseas) was observed to be a capable mother always following the child’s lead while maintaining clear structure. It may be worthwhile for the courts to consider appointing the mother as the custodian parent.”

33.  Mrs. Irving, counsel for the father, seeks to challenge the recommendations of the Two Reports. Her attacks focus on the Two Professionals’ analysis on the question of whether the mother had improperly influenced C on his views on access arrangements.  In particular, she complains that Ms. Lau was just repeating what the mother had said verbatim, without having critically analyzed and properly considered the arguments of the father. 

34.  It is clear to me that the Ordinance stipulates that social investigation reports, like all other material information, shall be considered by the Court when determining what is in the best interest of the child.  The social investigation officers are generally regarded as the “eyes and ears of the court” because they have carried out the background investigation and are able to provide details of the family situation which are not otherwise available to the court.

35.  Having a close study of the Reports, I am satisfied that the Two Professionals’ observations, opinions and recommendations are the results of comprehensive investigations and assessments.  They conducted a number of in-depth interviews with both parents and C, obtained feedbacks from them, reviewed relevant information and administered various assessments.  They gave detailed analysis on the words and conducts of them, and their interactions.  They have interviewed the child individually and in the presence of each parent separately.  They have considered the background of the parties, C’s daily life, education, wishes and other relevant facts and factors.  The Reports show that they were fully aware of the concerns and the diverging views of the parties over the custody and access issues and managed to hold a balanced view. 

36.  Mrs. Irving’s’ specific arguments will be dealt with further below.  Suffice it to say that, I am satisfied that the recommendation of sole custody to the mother was made after serious investigation and analysis on the information before the Two Professionals.  Ms. Lau rather unusually chose not to make any detailed recommendations on access arrangement. Notwithstanding that, the observations and investigations made by her and Ms. Lam have proved to be very useful in assisting this court in making the decision. 

37.  I nevertheless remind myself that the Reports are neither a special category of material information, nor should the recommendations 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.

C’s Views

38.  In the Reports, the Two Professionals reported C’s views on access arrangements with the reasons he gave in details.  They both considered those are the genuine views held by C.  A brief summary of C’s views is set out as follows: -

(a)   C does not want to go to Indiana for access: because he does not know what actual arrangement will be.  He feels awkward with the father’s family which he has not met after August 2016.  He does not know much about his stepmother and his half-siblings and whether they can get along. He is uncertain about how the father will manage the family dynamics or how the father will react if he does something wrong.  He is afraid that he may not be able to talk to his mother as much as he wants. He also wants to stay in Hong Kong with his friends and for his favourite activities.

(b)   he does not want to have staying access even in Hong Kong : because he got sick after staying access with the father in the hotels in Hong Kong in the past.  He prefers to sleep in his own bed at home and have more time for his own activities.

(c)   he wants to reduce his telephone access from 3 times a week to twice a week, on Thursday and Sunday (not Tuesday); from 7-8 p.m. to 8-9 p.m.: because he is usually busy on Tuesday and has difficulty in answering telephone calls from 7 to 8 p.m. because of absence at home, homework, activities or clash of dinner time or daily necessities.

(d)   he does not want the father to go to his school or participate in his activities : because the father is a stranger to his school teachers and schoolmates.  He feels weird and embarrassing to handle their responses and questions.

(Collectively as “C’s Views”)

39.  The father does not accept those views are C’s genuine views. He regards them as the product of the mother’s alienation.  On the contrary, the mother contends they are the result of the father’s failure in considering the son’s developmental needs or arranging access with certainty, making C insecure and unable to plan his own timetable.

40.  The father’s accusation of alienation was specifically investigated by Ms. Lam who detected no significant indication of alienation.  She opined that there might be impression that the mother plays the dominating role as the mother is supportive of C and always speaks up for him, being his advocate.  Ms. Lau made similar observations. 

41.  On the evidence before me, I believe C’s Views are C’s genuine views.  I am impressed, as the Two Professionals did, C has demonstrated level of maturity that is beyond his age.  By a review of his words, conducts, interactions with the parents and the Two Professionals, C impresses me as a mature, smart, assertive, energetic and well-organized child. 

42.  I have detected no unreasonable or illogical bias in favor of the mother from C. Instead, he has maintained a balanced view of both parents.  He described them as nice.  He kept emphasize that he loves them both and he knew they love him. He recalled both positive and negative memories with each of them. He also gave a balanced and age-appropriate description of likes and dislikes towards each parent.  He has not demonstrated strong dislike towards his father.  He regarded his father as loving father and he trusted that his father would fly to Hong Kong for him if he experiences life crisis. 

43.  He clearly understood his position and was able to account for the relationship among the parents and himself in a cogent manner as recorded in Ms. Lam’s report: -      

“[C] reported that he knows that his parents are not getting along because they are fighting in Court for him. He said that he has never seen them fight yet he knows that there are in arguments because he was put through this evaluation process. When asked about his parents’ financial situation, he said he does not know. When asked if his parents hurt the other parent, he said no. It appeared that parents did a good job in protecting him from being affected by adults’ issues; yet as he matures, it is inevitable that he found out about the parental conflicts through his direct observations and experience.”

44.  He is not only able to give clear and reasoned explanation for his views on access arrangement by referring to his personal knowledge and experience, he is able to provide a fair and honest view on his parents which does not indicate bias in favor of the mother.  It is recorded that when he was “questioned whether his mother supports him to see the father. He said she does not prepare him for a visit. He said that his mother never mentioned anything yet he could feel that his mother may not like his access with his father. Yet, he believed that he could choose to see his father freely and that his mother would respect his views. From what he described, it appeared that [C] sensed that his mother may not like the access time yet he is not afraid to go against his mother’s will and chose to be with his father if he wishes to as he trusts that his mother would respect his wishes.” 

45.  When challenged with the mother’s influence on him by the father, his outright reply was that “I have the power to change the schedule” and the mother would respect his views.  His position sits comfortably with the many instances that the mother was observed to have followed his lead during the investigation by Ms. Lau. He also assertively expressed his needs for more activities to the mother than his timetable could allow and the mother could agree.  He said that he wanted to be himself to do the right things and do what he wants.  His growing demand for independence is sufficiently reflected in his words and acts.

46.  As Ms. Lam recorded that, “During the discussion task, [C] took lead and invited the mother to talk about the sixth grade schedule. Again, we see [C] actively expressing his needs to his mother.  [C] asked for more activities while the mother asked for quiet days. It appeared that there are more activities that [C] wants to do than his timetable actually allows. In the post-discussion meeting, [C] said that this illustrates his point as to why he cannot see his father daily when his father is in Hong Kong because seeing his father will take away his time from attending those activities such as playdates, sport and competitions. From what was observed and this reflects the usual mother-son interactions, it appeared that it is [C] who wants to schedule more activities for himself and hence, it is thus questionable if there is any evidence to support the claim the mother schedule activities that competes with the father’s access time.”.

47.  The various incidents as stated in the Reports suggest that C is capable of identifying what each of his parents want yet he is not afraid of expressing his wishes despite knowing that doing so will upset his father or his mother. There were occasions that he stopped his mother from treating him the way he did not like (clothing, nickname, body touch, discussion about activity-arrangements) and that he actively expressed his views and made proposals for the mother to follow and she did (many incidents as task-performance; activities-arrangements).  As rightly pointed out by Ms. Lam “[C] is able to set clear boundaries with his mother and that he is not afraid to say no to her despite his tendencies to be caring towards her.” 

48.  He is energetic and has been busily engaged himself in many activities as soccer, basketball, tennis, table tennis, golf, Boy Scout, church activities, chess (stop piano and mandarin class lately).  He has joined a number of sports teams, academic tuitions, tournaments and overseas competitions.  He is so active that he has repeatedly urged the mother to arrange more activities for him even in the presence of the professionals.  It is particularly noted that he is fascinated by soccer.  He has been the key member of his school team for 5 years and is proud of his achievements in soccer.  He has participated in many activities about soccer including overseas soccer tournaments.

49.  His eagerness and assertiveness is reflected in his writing of his ad hoc letters to reiterate his views on access arrangement and in another occasion, his immediate re-arrangement of his activities upon receipt of the father’s schedule, all completed on his own initiative without involvement of the Mother and in the presence of Ms. Lau.  His timetable is obviously of great concern to him.  He has repeatedly consulted the Two Professionals about the father’s travel schedules so as to arrange his timetable.  His practice of arranging his timetables was demonstrated in his rescheduling of the access arrangements in the presence of the father in June 2019.

50.  His reluctance for access in Indiana is understandable in consideration of his lack of contact with the paternal family, his stepmother and his half siblings after August 2016.

51.  Reviewing the many incidents and verbal exchanges as recorded in the Reports against his background, I agree with the opinion of the Two Professionals that C is mature enough to understand what is going on around him and to form and express his own views and wishes.  The reasons he gave in support of his views are appropriate to his age and background.  He was able to justify his views with reasons from his own experience and observations.  It is obvious to me that he is not easy to manipulate or influence and has a strong urge for a well-structured life showered with his favorite activities.  The father’s access schedule concerns him much.

52.  I can find no strong indication of alienation or improper influence on him by the mother (which I will elaborate further below).  He holds firm view that his father and he love each other.  He was observed to be happy with the father and enjoyed his attention in the past.   I form the view that he wants to see his father in person but just would like to have well-scheduled access arrangements which could accommodate his activities.  His repeated requests for the father’s access schedule and for direct dialogue with the father on access arrangements for years are strong indicators. 

53.  So far the father has produced no direct evidence in support of his allegation of alienation. He relies heavily on the WhatsApps messages with the mother’s former domestic helper in 2015 and 2017 to show that the mother had couched C, monitored his telephone calls with the Father, and slapped C.  Both the mother and C denied such allegations.  Given the domestic helper concerned gave neither affidavit evidence nor oral evidence in these proceedings, those WhatsApps messages are untested hearsay evidence which is uncorroborated by any independent evidence and contrary to the observations of the Two Professionals. 

54.  There was also evidence that the said helper was served with several warning letters for her poor performance and integrity and was finally dismissed in July 2017, over a year before the father disclosed those WhatsApps messages in his affidavit of June 2018, and some of the messages were around the time of her dismissal.  In the circumstances, I could attach no weight to such untested hearsay evidence.

55.  Further, Ms. Lau has specifically investigated into the father’s allegation of the mother manipulating the phone calls between the father and son.  The son’s explanation corroborated the mother’s allegation that the mother was not always at home during the telephone access and that she always asked C to answer the phone calls.  He sometimes did not answer them because he was in the washroom, having dinner or not at home, and lately, intentionally not to answer at times because of his frustration with the father withholding his consent to his school trips particularly the school soccer tournament trip to Gothia.  After all, Ms. Lau could find no camera or recording device for telephone-monitoring at their home.

56.  For reasons aforementioned, I believe that C’s Views are genuinely held by him.  I remind myself that how far the wishes of the child should be a determinative factor and how weighty they are varies, depending on the circumstances of the case.  The court makes its decision, having regard to but not constricted by the wishes of the child, fully conscious of the fact that his best interest may well diverge from his wishes.

57.  Undoubtedly C’s Views as echoed by the mother will have an effect of substantially dwindling the father’s original access arrangements.  I should now consider the positions of the parties.

The Mother and Son

58.  The mother impressed the Two Professionals as a loving mother who genuinely cares about C’s well-being.  The mother-and-son relationship was observed to be intimate and close.  The son is happy, healthy, doing well at school and energetic in his social life with outstanding achievements in sports.

59.  The mother is an intelligent woman.  In so far as C is concerned, I have no doubt that she has been as involved in C’s life as it has been possible to be.  She has been personally involved in his activities and maintained close relationship with the school.  The loving relationship between the mother and son is well-illustrated in the Reports. 

The Father and Son

60.  The mother has repeatedly questioned the father’s love for C.  Much has been said about his personality.  At any rate, neither the father nor the mother was found to have any significant psychological difficulties as confirmed by Ms. Lam. 

61.  I have no hesitation in believing the father loves C deeply.  Not only because of the observations of the Two Professionals, the father’s conducts in the past 10 years speaks for himself.  He has been fighting tooth and nail to retain a relationship with C and trying hard within his own limitations to keep connection with C.  In the last few years, he experienced the closure of his father’s business, the death of his father and employer, unemployment, change of employment and loss from lawsuits. 

62.  Apparently he has been heavily engaged in managing his financial situation and looking after his new family with young children.  It is understandable that he has limitations in exercising access.  Child-access in Hong Kong could be costly to him.  I share the views of the Two Professionals that his limitations of time and fund might probably create an impression to the mother that he did not really care about C.  The truth is even if he did not come to Hong Kong for access, he continued making efforts in exercising telephone access as shown in his telephone records. 

63.  That said, the reality is he had little involvement in C’s life.  He did not know much about C’s performance at school or developmental needs.  He was not able to give any concrete answer to child-care questions: how the father-son relationship progressed, his past involvement in C’s life, how he would manage child-access in Indiana and the relationships between C and his half siblings. Finally, he acknowledged frankly to Ms. Lau and in Court that custody is in fact a symbolic right to him.

64.  Truly forming a new family with 4 young children and living in Indiana was the father’s own choice.  His heavy duty in Indiana and the geographical distance unavoidably deprives him of sufficient time and means to take care of C. Interaction between them is limited.  While the father complains the mother to have obstructed his access and alienation being the main cause of his relatively remote relationship with C, he appears to have ignored the importance of addressing C’s developmental needs and planning ahead for the development of the father-son relationship.  Sadly, his uncertainty on travel and access arrangement has ended up being a big issue between the son and him.

Respect C’s views

65.  There is compelling evidence to show that C has tried hard to communicate his views on access arrangement to the father through the Two Professionals, the Mother, phone calls, written letters and face-to-face conversations.  Helplessly his efforts met with no success.  The father holds a firm view that C has been manipulated by the mother and C’s Views are the mother’s tactic to prevent him from access to his son.  He has insisted not to discuss access arrangements with the son in the sincere hope of saving C from being put in the middle of the conflict between the parents and being used by the mother as a messenger for her. 

66.  Probably the father has not noticed that his son has grown up to the extent that C was able to form his own views and express his own wishes, regardless of the Two Professionals’ repeated advice to have direct meaningful discussion with C on access arrangements.  C told Ms. Lau that each time when the father came to Hong Kong, it was stressful to sort out the access arrangement and he said “it’s hard to agree things with dad” such as the time of access.  The undesirable consequences are C has become more and more frustrated and even “felt slightly angry at his father for not respecting his wishes despite expressing them to him repeatedly. He said that he cannot enjoy being with him while feeling frustrated with him.” and “he is beginning to doubt his trust in his father, he said it is because every time he asked for his father’s permission to go to Gothia his father would say he will talk to his mother.” as noted by the professional. 

67.  I share the view with the Two Professionals that the father is encouraged to take into account of the wishes and concerns of his son and to work out better arrangement and communication with him in future.

Trust and Communication

68.  It is tempting to blame the mistrust between the parties for the father’s reluctance to accept the son’s views.  Their conflict has persisted for over 10 years leading to a number of court applications.  They did not communicate directly, but only by emails or correspondences between their solicitors, which have largely been acrimonious.  The mother painfully complained the father to have damaged their relationship by serious misconducts in the past 10 years: unilaterally commenced proceedings for an application for defined access contrary to their understandings in 2012, theft of substantial funds from her, secret “wedding ceremony” with his current wife, forming a new family in Indiana without her knowledge, forgery of documents. 

69.  Apparently her grievances have not been reduced and in fact seems to have deteriorated further after the 2014 Trial.  The mother complained the father to have unilaterally changed the School Child Care Arrangement Form in 2015 to the effect that he replaced the mother to be the key guardian for C with an incorrect address. The father gave evidence in court that his information was updated incorrectly because of a computer problem. 

70.  There were other complaints as the father repeatedly using the mother’s personal email account instead of her designated email account for communication according to the court order; passing documents to her through Ms. Lau without notifying the mother that an urgent Summons was include therein; forgetting the time of access but wrongfully accused the mother of denying access on 15 June 2019.  The mother reiterates that those were acts of the father calculated to cause her stress and anxiety.  I appreciate the fact that the mistrust between the parties is deep-rooted and increasingly aggravated over time.

Uncertainty of Access Arrangements

71.  She accuses the father to have falsely asserted in the 2014 Trial that he would split his time between Hong Kong and Indiana for access arrangement but in fact, left Hong Kong completely and despite the court order, only chose to exercise access with C for about 121 days in the past five years since September 2014.

72.  She feels resentful towards the father for not prioritizing access time with C and challenges his access proposal were designed to suit his own convenience rather than C’s interests.  He failed to provide travel and access schedules as ordered (annual schedule with regular updates) and had the practice of giving uncertain answers to her requests about access arrangements, late notices of access arrangement or cancellation, paralyzing C’s schedules and causing distress and anxiety to C and her.

73.  In Court, the father admitted that he bore some responsibility for the infrequency of his access because of his financial difficulties and his not taking access at Christmas in 2014, spring break in 2015, Chinese new year in 2016, spring break in 2016, October break in 2016, Christmas in 2016, Chinese new year in 2017, Spring break in 2017 was not the mother’s fault. 

74.  There were emails and solicitors’ correspondences which show that the father’s access plans were often ambiguous and usually confirmed at a late stage.  For example, he only confirmed not to exercise assess for Chinese New Year in 2017 and Spring break in 2017 just a few days before the scheduled access time. 

75.  There were also occasions that the mother facilitated the father’s access in Hong Kong despite only short notices were given to her.  The father’s requests for access in June 2017, November 2017, June 2018 were accommodated.  Despite the mother’s repeated requests for the exact dates of access for June and August 2019, it was only on 22 May 2019 and 2 August 2019 that the father started to work out his access schedule with the mother.  It is noteworthy that the mother offered day access every day during the father’s 9-day stay in Hong Kong. Yet, C worked out his own adjustment and cut off or shorten some access.

76.  I opined that the father’s practices are undesirable which must have caused great difficulties to the mother and C to plan their schedules.  Predictability and certainty of access is crucial for providing a stable life with security for C.  It is also a commitment to his son to show his care and concern.  However, despite repeated requests of the mother and inquiry of this court, the father has not put forward any travel or access schedule.

Overseas Trips

77.  The mother’s discontent about the father’s belated consents to C’s school overseas trips also causes concern.  It is said that the father took more than half a year to agree on the school Mandarin Immersion summer camp trip to Hangzhou, mainland in summer 2018 (“Hangzhou Trip”) and more than 8 months for agreeing on the school soccer tournament trip to Gothia, Sweden in summer 2019. (“Gothia Trip”).

78.  Both trips were mentioned time and again by C and were clearly very important incidents to him.  He himself has anxiously approached the father and the Two Professionals for the arrangements. The belated confirmations from the father has actually upset him and he confessed he became angry at his father for these.

79.  The father complains the mother to have deliberately arranged activities during his access time and blamed him for the delay.  For the Hangzhou Trip, the father blamed the delay for not receiving the mother’s email.  For the Gothia Trip, he emphasizes that in response to the mother’s email about the Gothia Trip on or around 21 September 2018, he expressed his hope to have access in Indiana with C for the first half of the summer holiday by an email on 27 September 2018. Besides, he acceded to the mother’s other requests for taking C on two other trips to Thailand and Singapore.  Notwithstanding that, she signed C up and paid for the Gothia Trip without replying to his emails about summer arrangements. She then told C his father was refusing the trip, telling him to arrange it with the father, putting C squarely in the middle, and damaging the relationship with the father.

80.  The mother explains that the tournament was a very important one to C which had a deadline and C, the coaches and the parents put much pressure on her and therefore, she had to register and pay for it.  She referred to her email to show that she had started to ask for the father’s consent from 21 September 2018 and actually suggested to swap her second half summer time with the father in order to work things out with him but ended up with no success. 

81.  I appreciate the fact that the father who was not able to travel to Indiana with C in 2017 and 2018 would definitely desperate for exercising his right of access as he always considers access with him (and his family) is important and should take priority over other activities.  Admittedly, the Order which suspended overseas access has disappointed him.  It was nevertheless unrealistic for him to insist on, even to Ms. Lau on 18 January 2019, taking C for access in Indiana from 13 June to the end of August 2019 and offered to take C for the Gothia Trip, when he was aware that the overseas access had already suspended. He also admitted to Ms. Lau that he actually did not financially afford to take C for the Gothia Trip.  His request for more than two months’ access was not supported by any court order.  Finally, it was only until the mother’s application to the court and before the hearing on 23 May 2019 the father then consented to the school trip.

82.  Besides, I am slow to regard that as the mother’s deliberate plan to prevent the father from child-access.  Instead, it demonstrates the difficulty of the parties to make arrangement for C.  It was an activity arranged by the school soccer team to which C has been a member for years.  The tournament was important to C who is fascinated with soccer and derives much satisfaction from it.  He earnestly treasured this opportunity to test his ability.  The mother’s pressure from the son and his soccer team must be real.  The anxiety and frustration caused to C by this 8-month approval process was overwhelming as reflected in the Reports and his own letters but, in fact, evitable, if the father gave more thoughts to his son’s views and the parents would be able to communicate amicably.

83.  On the other hand, I also regard the delay was partly caused by the mother who failed to constructively reply to the father’s email dated 27 September 2018. It was only until January 2019 she then put forward substitute access proposal.  After all, no agreement was reached until May 2019.

84.  I should add that Mrs. Irving’s criticisms of Ms. Lau being critical of the father for not letting C go to the Gothia Trip but not of the mother arranging the said trip knowing that it would clash with the father’s access under the Court order is a misconception of Ms. Lau’s position. 

85.  By a fair reading of her reports, I do not find Ms. Lau has ever taken up the role of judging the culpability of the parties, laying blame or being protective of the mother as suggested.  What is clear is that she has tried hard to understand the concerns and diverging views of each party and C, to make enquiry, analyze their respective positions and make recommendations.  Nowhere in her reports has ever supported breach of Court Order or defended the mother.

Alienation and Access in Indiana

86.  In this application, the father bitterly accuses the mother to have strived to cut off his connection with C.  He complains that in the very first scheduled summer access after the 2014 Trial, in 2015, the mother suddenly took C to California without leave of the court or his consent.  He was left with no choice but urgently enlisted the assistance of the Court for the whereabouts of C and the handover of C in California. 

87.  In the summer of 2016, she sought to vary the overseas access order from pick up from California to Hong Kong, making the matter difficult for him.  In the summer of 2017, she made a late application to the court to halt summer access on the ground of C’s reluctance to go and threat of abduction.  She chose to send the summons to his Hong Kong address, knowing him to be in the United States, ending up with an order of suspending overseas access without his representation.  It was in relation to this application that an investigation report was prepared when C told Ms. Lau that he wanted to go to Indiana but was scared that his mother would be angry if he said so.  Eventually the father arrived in Hong Kong but returned to Indiana alone. 

88.  I can see the source of the father’s grievances.  The mother’s explanations that her trip in 2015 was arranged urgently to receive medical treatments for her serious illness from a specialist in California does not free the relationship between the parties from resentment.  The mother’s conduct should not be encouraged.

89.  The fact is the summer access arrangements have never been smooth.  The subsequent summer access became even more complicated.  While I agree that the mother had acted in a way that appeared to be a deliberate plan to obstruct the access in Indiana, I however could not ignore the fact that the father’s conducts did cause some real concerns to her.

90.  During the summer access in Indiana in 2015 and 2016, the mother complained she was unable to speak to C in a couple of days, finally calling in protective services for assistance in one occasion. She also accuses the father of taking C to Wisconsin, his sister’s home and summer camp without notifying her.  The missing of C drove her to despair.  The father had not denied the mother’s accusation of his failure in notifying her until he gave evidence in court.  In any event, the mother’s contemporaneous emails making inquiry about the where-about of C, coupled with the father’s email in providing the address of Wisconsin was sent out in 2016, the mother’s complaint is well-founded. 

91.  Given her fruitless attempts in locating C in several occasions during the summer access in 2015 and 2016, and the father was ordered to take C only to California or Indiana, her worry about access in Indiana ending up with court applications is understood.  Besides, in consideration of her arrangements in facilitating the father’s access in Hong Kong in the same period, I believe she had real concerns on access in Indiana.  I therefore do not take the view that those were the mother’s deliberate plans for cutting-off access.

92.  I also believe her actions were partly to address the son’s concern who has constantly been reluctant to go to Indiana except one occasion. The father complains that that is not C’s genuine view as it runs counter to what C told Ms. Lau on 5 June 2017 : C was afraid to tell his mother that he wanted to go to Indiana because she would be angry.  The father regards this as a clear example of the mother couching or putting improper pressure on C. 

93.  For a better understanding of C’s position, the whole series of events have to be taken into account.  Indeed, Ms. Lau gave a detailed account on this issue. She talked to C individually on the issue of going to Indiana for four times in 2017.  On the first time on 31 May 2017, she met C individually to explore his views on going to Indiana.  C said that he wanted to stay in Hong Kong instead of going to Indiana for that summer.  The message was communicated to the father by email who did not agree and requested a joint interview with C to talk about it when he was in Hong Kong. 

94.  However, when he met C in the interview on 5 June 2017, he refused to talk about the issue and, then played with C.  When he was sitting at some distance from C, C told Ms. Lau that he was fine if he was to go to Indiana that summer but was nervous to tell the mother as she would get angry.  In a private talk with Ms. Lau on 26 June 2017, C clarified that he gave his previous view of going to Indiana because he felt pressure to tell his wish in the presence of the father.

95.  In the fourth private talk on 28 July 2017, he completed a questionnaire seriously and gave consent for Ms. Lau to share his views with both parents.  He expressed his wishes were that his parents would not be so mean to each other. He loved them both and he knew they both loved him.   When his father was in Hong Kong in June 2017, he wanted to see him for longer time.  He knew that his mom was sad when he went to Indiana. Regarding his views on access in Indiana, he said “when I feel like it” and that year he did not feel like it. Since then, C has consistently given his view against access in Indiana.

96.  On the evidence before me, the incident on 5 June 2017 was the only occasion on which C gave a different view on access in Indiana.  Shortly after that, he clarified his position with Ms. Lau at the first opportunity, and gave an explanation for the change of his position: the view was given in the presence of the father and he felt pressure. 

97.  His view in the fourth interview speaks even louder.  C was serious in that interview.  He completed the questionnaire seriously.  Knowing that his views would be released to both parents, he still held a balanced view about both parents and honestly expressed his feeling: he loved them and they loved him; he did want to stay with the father longer when the father was in Hong Kong and he knew the mother would be sad if he was in Indiana.  It was under such circumstances that he said he would only go to Indiana to his liking but not that summer. His position has remained the same since then.  Together with C’s reasons of not going to Indiana as elaborated above, I believe his view on not going to Indiana is genuine.  There is no significant indication of alienation or undue pressure by the mother.

98.  Mrs. Irving’s complains Ms. Lau to have refused to acknowledge the mother’s reluctance to comply with Court order and instead chose to excuse the mother had some concerns and presented C caring about his mother’s feelings.  For reasons aforesaid, I am not convinced.  Such complaints ignored Ms. Lau’s detailed analysis of the intimate relationship between the mother and C and that the son was mature enough to sense her mother’s feeling from her expressions and acts even though she did not express her feelings in words. C knew that the mother did not actively encourage him for access and he could sense that she did not like it. Ms. Lau also confirmed in court that she had indeed concerned about whether C’s view expressed subsequently (that he did not want to go to Indiana) was influenced by the mother even though it was not mentioned in the reports.

99.  Likewise, I am not impressed by the argument that Ms. Lam has failed to consider the aforementioned incidents were an extreme step for the mother to have taken and that Ms. Lam’s analysis must be faulted.  Such argument neglects the analysis of the intimate interrelationship between the mother and C.  Ms. Lam did not regard such events as an indication of negative influence by the mother.  She opined that there is positive and negative impact from the mother and parental alienation cannot fully explain this situation.

100.  I agree with the Two Professionals.  Even though the mother dislikes the father and has made applications to stop access in Indiana, there is no solid evidence to suggest that either parent has ever spoken negatively about the other parent to C.  Instead, C holds a balanced view on both parents.  The evidence shows that C has been mature enough to sense what his parents wanted, the likes and dislikes, through observing their facial expression and actions. Given C has a strong emotional bond with his mother, who is his primary caretaker for years, it is therefore logical for him to sense that his mother has been unhappy for his access in Indiana.  This however cannot be regarded as alienation.

101.  More importantly, C justifies his wishes of not going to Indiana with his personal reasons which are appropriate to his age, background and experience.  It is understandable that a 12-year old boy would be reluctant to stay with the father’s family of 6 members, whom he has had no contact after the summer of 2016, for several weeks, not knowing what his daily life would be and whether they could get along.  It is natural that he would have a better sense of security to stay with his mom in his own home enjoying his activities with his friends.

102.  In the premises, I do not find the incidents relating to access in Indiana support the allegation of alienation.  It is C’s genuine view of not going there.

Unauthorized Trips

103.  Sadly, the tensions between the parties continue and even as recent as since the Gothia Trip.  The mother arranged overseas trips with C without the agreement of the father or leave of the Court notwithstanding the removal restriction imposed by the Restriction Order.  Her explanation for the trip in February 2019 was that it was a one off experience which C had wished for and that the bad experience in working out the Hangzhou Trip and Gothia Trip with the father deterred her from seeking the father’s agreement.  She apologized for that. 

104.  She however did it again and took C to Santiago at Christmas in 2019.  Mrs. Irving’s accuses the mother to have abused the trust placed in her and reminded her of the serious consequences and sanction of flouting Court order.  The mother confirms she understood.

105.  In the absence of a court order or the agreement of the father, the mother absolutely had no right and should not have brought C out of Hong Kong contrary to the Restriction Order.  The requests of the son, the fear of the father disagreeing with those trips and the other reasons she gave might provide her with some considerations for relief from sanction in the past but they are not a valid license to repeatedly disregard the father’s rights and Court order. Such conducts must stop and removal restriction is necessary for her. 

106.  The father has the rights to know the whereabouts of C and to maintain the child-access.  The history shows that generally the father was willing to give consent to C’s overseas trips if reasonable notice had been given to him and those trips did not clash with his access time.  The son’s concerns about his school summer overseas trip arrangement could be addressed by imposing a notice system which I would elaborate further below.  Having considered all the circumstances of this case, including the conducts of the mother, her application for uplifting the removal restrictions should not be allowed. 

Telephone Access Arrangement

107.  The father says that telephone access has been far from satisfactory.  The situation got worse and from December 2018 to May 2019.  A majority of his telephone calls were unanswered, and if they were, those would be a “got to go” response.  The mother is criticized to have allowed C to “breach” the court order. 

108.  In Court, she said that she had walked through the court order with C, asked him to answer the calls, and if he did not, he would receive lectures from her.  She would not punish him for that would not help him.  She affirmed that it is absolutely important for C to have a good relationship with his father and she had tried her best to force him to abide with the order, but it has been difficult because he is a human being.  She asked the father to respect C’s Views on telephone access. 

109.  Again, the father criticizes Ms. Lau to have defended the mother on her non-compliance of the court order on telephone access.  I am not convinced.  I fail to see how Ms. Lau not further exploring with the mother whether there were consequences (punishments) for C (after the mother’s explanation on her efforts on explaining the order, asking C to answer the phones and giving him lectures) when he occasionally failed to answer the father’s telephone calls would have any material impact on Ms. Lau’s analysis when her analysis was resulted from a detailed examination of a considerable amount of more significant facts and incidents which I have set out above and should not repeat here.  There is no solid evidence that the mother has obstructed the telephone access as alleged.

110.  I take the view that the cause of the significant deterioration of the telephone access was explained by C to Ms. Lau :  he became more reluctant to answer the phone calls since 2018 because he was angry with the father for not acceding to his repeated requests for approval of the Gothia Trip.  There were also occasions that he was not at home or was busy.  He also said that the father’s telephone calls still did not show a telephone number. 

School Activities

111.  Of C’s resistance to the father going to his school or participating in his activities, it is suggested to have arisen from the occasions that the father got on to C’s school bus and went to his school in 2017.  The mother said in Court that C was actually fearful of his father.  However, when confronted that this was a new fabrication, she gave no valid explanation.  Such suggestion is contrary to all the evidence before me and is unbelievable.  C had told Ms. Lau that he was fine with that incident.  Ms. Lau also reported that C was observed by the school to be happy with the father.

112.  In my judgment, the mother has overreacted to the situation.  She gave an account of how she herself was taken by surprise when she unexpectedly met the father at school in that morning and she always had a fear of him.  What is clear to me is that the son’s concern, as expressly explained by him, focuses on how to handle the responses of his schoolmates and teachers: he felt weird and embarrassed to handle their responses and questions for the father was a stranger to them.  Such concern is natural in his age and should not be interpreted as a fear of the father (by the mother) or a plan of alienation (by the father).  At any rate, I find no reason why a father should be prohibited from attending his son’s school or participating in school activities providing that sufficient notice has been given to the mother and the son for their preparations.

Fun Activities

113.  Mrs. Irving’s further relies on the mother having the history of arranging fun activities for C during the father’s access time and telling him about it, which may be regarded as an implicit message to the Child that there are better things to do than seeing his father, as agreed by Ms. Lam, as a proof of alienation.  Such argument is premised on a misconception of Ms. Lam’s position.  Ms. Lam has in fact supplemented that a balancing exercise between the child’s needs, the father’s needs and the relevant circumstances is always required when assessing those situations.

114.  On the evidence before me, I am not persuaded that this is a case of alienation or the mother instilling her own plan of obstructing the father’s access into C. I accept that there were occasions in the past when her behaviour has been a cause of some concerns, in particular in the very first year after the 2014 Trial.  In fact, the parties have both behaved undesirably at times during the course of this litigation. 

115.  In my view, the observations of the Two Professionals are correct.  The father’s perception may be partly caused by the mother’s advocacy for the son’s welfare as observed by Ms. Lam that “it appeared that the mother actively advocates for C even though he is more than capable of expressing his wishes. It is questionable as to whether that would create an impression that the mother has a powerful influence on C’s views on access.”

Impact on C

116.  Having reviewed the evidence relating to the many disputes between the parties over the years and their demeanor in Court, I share the views of the Two Professionals that the parties have mistrusted each other to the extreme.  The Two Professionals have repeatedly recommended sole custody to the mother due to the parties’ deep-rooted mistrust, inability to communicate, high conflict and the negative impact on C.  Neither party has any due insight to how their attitudes and mistrust has affected C, nor is there any real likelihood they could have direct communication over parental issues.

117.  Not only the parties suffer, C was observed to be stressful and constantly urged for cessation of arguments between his parents.  Sadly, the continuous witness of the parents’ high conflict and ongoing court proceedings since 2 years old has undoubtedly been causing harm to him and affecting his healthy bonding with both parents.

118.  Looking all the matters in the round, C’s Views on access arrangements reflect valid concerns. While I appreciate the father’s sincere intention to show the son his unconditional love and to share his family love with him, avoiding getting him embroiled in the conflict with the mother, he might not have fully realized the growth and developmental needs of the adolescent son, leading to the frustration to C.

119.  The reality is the father-and-son relationship deteriorated significantly after the Hangzhou Trip and the Gothia Trip.  The father’s good intention in posting videos of C to the YouTube for sharing but without C’s prior knowledge in August 2019 was met with C’s strong disapproval and demand for immediate removal of it.  Such event has further aggravated the situation.  Recently C has explained that he still loved his father but found himself not understand his father, losing trust on him and indeed angry at him.  He could not therefore enjoy being with the father while feeling frustrated about him. 

120.  As observed by the professional that “Another factor

affecting the father-son relationship is C’s frustration towards the father for disrespecting his views; which C felt that he has expressed so clearly and frequently that his father cannot have missed these messages yet C does not feel the father responded.  It appeared that C is losing his trust in his father.”. I agree with the Two Professionals’ view that good and effective communication is an effective tool in achieving long-term loving relationship.

121.  I form the view that it is for C’s best interest to provide him with a well-structured schedule with certainty.  It will be stressful and difficult for the mother and C to organize his schedules if the father is unable to provide his access schedule at a reasonable time and the parents’ communications are full of accusations.

122.  Regrettably, all the proposals for resolving their problems through mediator, conciliator, and parental coordinator were not accepted by either or both parties.

Custody

123.  It is clear in my mind that one needs to be extremely careful when considering how a step further is to be taken. The situation, as it stands, is to give priority to the children’s sense of security and well-being.

124.  If the parties are not able to engage in any sensible dialogue with a view to come to a reasoned solution, I do not think an order of joint custody in favour of the parties will be to the best interests of C. All of the Reports have recommended sole custody to the mother.  The reasons behind these recommendations were summarized in the last social investigation report:

“Considering the parents’ high conflict and no improvement on their communication and cooperation in co-parenting as reflected in their ongoing argument, joint custody seemed to make the son more stressful and vulnerable.”

125.  As elaborated above, there has been no improvement on the parties’ communication and cooperation in the past few years.  On the other hand, there has been a significant change of factual circumstances which make the joint custody unworkable.  The parties have been locked in bitter litigation which have continued to hurt the parental relationships with both of them busy attacking each other while defending themselves. 

126.  C is entering an age when his education is increasingly important, as well as his social life and extra-curricular activities he will pursue. In the past, tensions arose over the communications with the school and the School Child Care Arrangement Form.  The situation would likely get worse when C enters higher level of school. The parents’ high conflict and ongoing court proceedings in custody and access issues has been doing harm to C and affecting his healthy bonding with both parents.

127.  The practical reality is whilst the mother is at home taking care of C, the father lives in Indiana busy at raising a family of 4 young children and struggling for his career, his involvement on C has been minimal.  C has been doing fine at school with good achievements in sports and obviously enjoying his life. His timetable provided by the mother demonstrates his well-structured routines.  This is a good reflection of the mother’s ability in taking care of the son on her own.

128.  Mrs. Irving’s seeks to argue that as there are no real custodial issues as warranting and necessitating sole custody, given the school, religion, health, residence are well established, the existing custody order should not be lightly interfered. She says that the mother has acted to exclude the father even at a time when she did not have sole custody.  An order for sole custody will only “give her green light that she is ‘in charge’”.  She argues that there is no detriment to C to his parents having an order for joint custody.  On the contrary, it is in his interests, so that both parents have equal custodial rights and equal involvement in the decision making process for him.

129.  In my view, the inherent problem of this argument is that we are concerned about the welfare of the child and if his welfare is best served by granting custody to one of the parents, the previous arrangement would not pose a hurdle to the court’s decision.  The fact is the father had minimal involvement in C’s life and his views on child care matters remain unclear.  It is his confession to Ms. Lau and in Court that custodial right is indeed only a symbolic right to him.

130.  It is important to note that a parent with sole custody is not

at liberty, and does not have the right to make major decisions about the child without reference to the other parent : Y v P. Further, the father’s fear of the cut-off of the father-and-son relationship can be removed by well-structured access arrangement.  I also take note that the mother has updated the father with the activities, medical issues, religious participations and school performance of C from time to time. 

131.  I accept Mr. Marwah’s submission that the change in circumstances since the 2014 Trial warrants a variation of the existing orders in order to reduce the conflict between the parties and to suit C’s developmental needs.  Consequently, and somewhat reluctantly, I have come to the conclusion that there shall be an order for sole custody to the mother given the very high level of continuing conflict between the parties and an order for joint custody was tried previously and it did not work.  To compel attempts at co-operation will not protect the interests of C but only leave him more vulnerable. This is a matter of some regret.  The sole custody order is however made upon the mother’s undertaking to the Court which I will set out further below. 

Access Arrangement

132.  For access arrangement, it goes without saying that the father and son connection must be maintained.  It is encouraging that C has explicitly and continuously requested to maintain face-to-face contact with the father.  He however requested access to be arranged in Hong Kong without access in Indiana or staying access and to have the access time be reduced.  I agree with the Two Professionals that a progressive approach should best serve the interest of C and to restore trust in the father and son relationship. 

Access in Indiana

133.  In Court, I have explored on how the father would address C’s Views on access arrangements.  Similarly, the father was advised by the Two Professionals to do some research on child development and to be more knowledgeable about what kind of dynamics C would encounter if he goes to Indiana, which would help C feel more secure and prepared.

134.  It is encouraging to see that the father’s final proposal has tried to respond to some of the son’s worries for access in Indiana (C will have his own room, will not have to babysit his half-siblings, will have various sports activities, the same telephone access arrangements with the mother as he has, etc.).  That said, it remains unclear of what would be the daily routine, house rules, meals and traveling plan and more importantly, how the siblings-relationship and step-mother-and-son relationship could be built.  Still, no fixed schedule of access with specific date was provided despite repeated requests.

135.  Indeed, much has to be done to settle C’s anxiety before resumption of access in Indiana.  He enjoys his life in Hong Kong and urges for more time for his own activities and friends.  His relationship with the father has been significantly deteriorated because of the Gothia Trip, and even further, after the YouTube event.  It is natural and logical that he will feel stressful for staying with the father’s family whom he is not familiar with, in a place strange to him, for a couple of weeks.

136.  The father needs time and efforts to rebuild the trust and loving relationship which was undermined by the minimal connection and misunderstandings with C in the past.  The fact is C has, at times, shown his strong disapproval of access in Indiana at this moment and his determination to refuse if forced.  Forcing C to do something which distresses him will only serve to further damage his relationship with the father.  I do not think access in Indiana is in the best interest of C at this moment.  Such question can be re-visited when there is satisfactory progress in rebuilding the relationship between C and the father and his family together with a more appropriate arrangement for access. 

Staying Access

137.  I take the view that access in Hong Kong should be the starting point and the father is recommended to prioritize C by coming to Hong Kong more consistently and predictably.  This is the key to rebuild the father and son relationship. With the father’s improved financial condition and a more flexible access arrangement framework, his ability to come to Hong Kong to exercise physical access is secured. 

138.  I do not think that access in Hong Kong should be limited to day access regardless of the reasons given by the mother and C : C got sick after staying access with the father in the hotels and he prefers to sleep in his own bed.  I do not ignore the fact that C has plenty of experience in travelling overseas and staying in hotels (Italy, Mainland, Singapore, Spain, Sweden, Thailand, the United States).  Hotel-staying should not pose an obstacle to staying access. Staying access is necessary to provide more flexibilities to fill the access with meaningful activities and more opportunities to communicate knowledge and understanding in daily life.  It will not affect C’s daily life due to the father’s promise in Court to keep C’s daily routines and scheduled activities during his access time.  He also promised that as his financial condition has improved, better hotels with pleasant environment and facilities would be arranged for C.  He stresses that he has shown his sincerity in financially supporting C by paying off part of the outstanding maintenance recently.

Reduction of Access Time

139.  Of the request for reduction of access time, I accept the professional’s opinion that such request is age-appropriate given his developmental need for peer recognition and increasing autonomy/ independence. It is reasonable for a person of his age to urge for more time to spend with his friends and for his activities instead of being with parents. 

140.  A framework more realistically aligns with his developmental needs and the building of the father-and-son relationship is necessary.  The father requests for 75% of almost all of the long holidays are rejected by the mother because of the father’s track record of seldom access and no access in Spring break.  I find the father’s requests unrealistic without giving due regard to C’s Views and developmental needs, and would probably lead to more frustrations to C.  A balancing exercise is required.  On the other hand, I believe that his limited access in Hong Kong in the past years was partly caused by his financial difficulties which could be improved along with his recent financial improvements.

141.  I form the opinion that part of C’s summer time should be allowed for his increasingly busy commitments and academic advancements into higher school level.  Soccer forms an essential part of his daily life which brings him good health and satisfaction.  He obviously treasured the opportunities for participation in the overseas soccer tournaments arranged by his school in the past few years.  I will give priority to such school activities.  I should also allow some time for preparatory tuition classes for higher school level which are common in Hong Kong.  In the past, he won an award for advanced mathematics.

142.  Coupled with the mother’s promises to sacrifice part of her summer time for the father’s access time so as to allow more time for tuition class and school overseas activities for C, I would allow 3 weeks for summer access in Hong Kong.  In view of the school overseas activities were usually arranged in June and July in the past, I would order the summer access to start on the first day of August each year but allow flexibility for the parents to agree otherwise.

143.  On the other hand, I should accede to the father’s request to have access to C when he has a chance to come to Hong Kong in ordinary days.  This is upon the father’s undertaking given in Court that he will fit in the routines and scheduled activities of C and the mother needs not reschedule C’s activities to accommodate his irregular access.

Telephone Access

144.  Absent any valid reasons for objection, C’s request for varying the telephone access to 8 to 9 p.m. should be entertained.  It is common for the teenagers in Hong Kong to have activities, dinnertime and social gatherings before 8 p.m. 

145.  I however take the view that telephone access on Tuesday, Thursday and Sunday should be maintained.  I do not see how just a telephone call will severely affect C’s homework or daily life on Tuesday.  Constant communication is necessary for building up relationship.  The flexibility of telephone access should be widened to include communication applications which provide video chat as Skype, FaceTime.  This will provide useful means for communication among C, the father and his family members in Indiana.  I however should order such arrangement to take place on Sunday to allow more time for C to adjust himself to this.

146.  The mother has provided an undertaking that she would facilitate such access by providing the necessary equipment and devices as well as proactively encouraging C to answer the father’s calls.  The father is encouraged to provide his telephone number for C to call him or return call.

Notice system

147.  A stable and predictable daily routine is crucial for C to foster healthy development and stable emotion.  Clarity on access with proper notice in advance is a must.  It is important for the mother and C to have advance notice of access so as to make plans for C and to give him a sense of security.

148.  Uncertainty of the father’s access plan and short notice of access arrangements will definitely cause stress and anxiety to the mother and C, which are the subjects of the mother’s major complaints in the past.  Regrettably, the father has not provided his traveling schedule or access plan despite repeated requests and, without justification.  His proposal to provide only 14 or 21-day advance notice for long holidays will not be accommodated.  This is plainly insufficient for the mother and C to plan C’s schedules for long holidays.  To resolve the difficulties of the mother and the son and to avoid further arguments in future, a notice system should be imposed.  I also take note that the school adopts the practice of requesting the parents to show interest in the overseas trips a number of months prior to those trips.

School communication

149.  I find no reason why the father should not maintain direct access to the school portal for the purposes of getting updated information from school, such as receiving regular updates about C’s activities, school progress and performance, information and circulars for parents, report cards, newsletters updates.  He should have the right to participate in school activities for parents.  He however should give sufficient notice and time to the mother and C for them to prepare themselves for his participation.  This is sensitive time for C’s development into an adolescent teenager.

Travel restriction

150.  As explained before, the travel restriction is a constant source of conflict between the parties. Be that as it may, I cannot neglect the fact that the mother had the history of bringing C out of Hong Kong without notifying the father, and at times, the father could not exercise access including telephone access. The father has a right to know his son’s whereabouts and maintaining access with the father is important to C.  Subject to the special arrangement for the overseas trips arranged by the school as elaborated above, the existing removal restriction should be maintained. 

Order

151.  Having considered all the evidence and the submissions (together with the access proposals) of both parties, I form the view that for the best interest of C, the existing custody and access arrangements should be varied. 

152.  I order that all the standing orders in so far as they provide the present right of custody and access arrangements be varied as follows: -

(1)             sole custody be granted to the mother with care and control be continued to the mother.

(2)             defined access be granted to the father as follows: -

Spring break/ Christmas holidays

(a)              The father shall have access during the Spring break and Christmas holidays.  The holidays shall be shared equally with the mother.  The holidays are to be split into two halves, the father shall take the first half of the holidays for 2020 and the second half for 2021.  The sharing pattern be rotated every year unless otherwise agreed by the parties in writing.  The Spring Break access shall start in 2021.

Summer Holidays

(b)             The father shall have 21 days out of the Summer holidays.  Subject to paragraphs (c) to (e) below, the summer access shall start from the 1st day of August each year unless otherwise agreed by the parties in writing.

(c)              If the school overseas trip C intends to join take place during the father’s summer access (limited to one single school overseas trip for such purpose), such school overseas trip shall take priority over the father’s summer access providing that the mother notifies the father in writing together with the copies of the relevant school notices (with specific dates, destination and purpose of the trip) and a proposal of substitute access period of 21 consecutive days within 7 days from the date of receipt of such school notice.  The period of such trip shall be confined to, and shall not be extended beyond the exact period of the school trip.

(d)             The father shall have the right to decide the substitute access period providing that he notifies the mother of the exact dates of the substitute access in writing within 7 days after receipt of the mother’s notice.  Failing which, the mother’s proposal shall be the access period for the relevant summer unless paragraph (e) applies or otherwise agreed by the parties in writing.

(e)              The father shall give no less than 56 days’ notice for any change of the scheduled access.  Failing which, the mother will not reschedule C’s activities to accommodate the new access schedule.

(f)               The father shall confirm his flight schedule in writing to the mother no less than 21 days before the commencement of the access.  Failing which, no access will be arranged unless otherwise agreed by the parties.

(g)             All access during Spring break/ Christmas/ Summer holidays shall take place in Hong Kong unless otherwise agreed by the parties in writing.

(h)             All access during Spring break/ Christmas/ Summer holidays shall include overnight staying access and run consecutively.

Irregular Access which does not fall into the Spring break/ Christmas/ Summer holidays

(i)               The father shall have access of C in Hong Kong for not more than 3 consecutive days in each occasion providing that he serves a notice of access in writing on the mother setting out the exact dates of access and his flight schedule no less than 21 days before the commencement of the access.  Such access be arranged as follows : -

(aa) school days except Fridays : 2.5 hours

(bb) Fridays and non-school days: overnight staying access

For staying access : the father shall be responsible for arranging C to attend all activities which are scheduled before the service of his notice. 

Practical Arrangements

(j)               The father shall provide the address for overnight staying access and the contact telephone number to the mother in writing no later than 14 days before the commencement of the overnight staying access.

(k)             if the father fails to exercise the scheduled access, there be no substitute access for the father.  For other reasons, any default access shall be made up by the mother as far as practicable before the father leaves Hong Kong according to his schedule provided in advance.

Telephone access

(l)               The father shall have telephone access directly with C on Tuesdays, Thursdays and Sundays between 8 p.m. and 9 p.m. according to the Hong Kong time by the designated landline phone.  The telephone access on Sundays shall include communication through video chat as Skype, FaceTime.  The mother shall provide the father with contact telephone number and exact time for telephone access no later than 7 days before C leaves Hong Kong.

Activity

(m)           The father shall have access to the school portal for the purpose of obtaining information about C and activities for parents.  The access be limited to the scope as described and authorized to the father in the School Child Care Arrangement Form attached to the Order of Deputy District Judge D. Cheung dated 11 December 2018.  The mother shall make necessary arrangements with C’s school to give effect to this.

(n)             the father shall be at liberty to participate in any school activities for parents and meeting with C’s teachers providing that he has given notice in writing to the mother for not less than 7 days before such activities.

Removal Restrictions

(3)             the Restriction Order of Deputy District Judge D Cheung dated 11 December 2018 do stand but be varied to the extent to provide for one summer school trip as provided in paragraph 2 (c) above.   

(4)             all communications between the parties on arrangements for access and travel for C shall be made through their designated e-mails address unless otherwise agreed by both parties.

Undertakings

153.  I shall hold the mother to her undertakings given to the court that :

(a)     the mother shall notify the father in writing of the new land-line number for telephone access within 3 days from the date of change of the number of the land-line.

(b)     the mother shall provide necessary equipment and devices of communication applications which provide video chat as Skype, FaceTime to facilitate telephone access within 14 days from the date hereof.

(c)     the mother shall update the father with religious participations, extra-curricular activities, school performances (which are not available in the school portal) within 3 days from the date of receipt of such information.

(d)     her undertaking to update the father with the progress of C given to the court on 11 December 2018 shall continue.

154.  I shall hold the father to his undertakings given to the court

that for the irregular overnight staying access which does not fall into the access during Spring break, Christmas or Summer holidays, he shall be responsible for arranging C to attend all activities which are scheduled before the service of his notice to the mother under paragraph 2(i)(bb) above.

Costs

155.  Given this is a child related matter, I will make no order as to costs of this application.  This Order Nisi shall be made absolute within 14 days from the date of this judgment unless either party applies to vary the same by way of summons.

156.  I thank Counsel for their assistance.