LMM v. LKKV

FCMC 1062 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1062 OF 2013

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J U D G M E N T
(Custody, care and control, access and shared care)

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Introduction

1.  This is an application by a petitioner mother for sole custody and care and control of the only child of the family, a little boy K who is now 8 years of age. Likewise the father also seeks an order for sole custody and care and control. Each party proposes reasonable access to the other in varying terms.

2.  The central issue in this case is the “status quo” of the child and how that is to be viewed in circumstances where on the mother’s case she was “kicked out” of the former matrimonial home and on the father’s she had “abandoned her son”. There is no doubt that historically the mother was a full time care taking parent, whereas the father was the bread winner of the family. However for reasons that will be discussed in more detail later, the mother did not take K with her when she left the former matrimonial home, nor did she apply for interim custody and care and control at the first available opportunity. Instead she applied for and was granted access in the terms that she requested. By the time that the mother issued an application for custody and care and control the case had been running for approximately 21 months and trial dates had been fixed.

3.  In the interim the status quo of the child has changed dramatically. He went from being cared for by his mother on a more or less full time basis, to being cared for by his father, with the assistance of the paternal grandparents and a domestic helper. In addition the mother has re-partnered and she intends to marry after the divorce has become finalized. She is also working – albeit on a seemingly part time basis (despite her assertions to the contrary). Consequently it is not possible, even on her own case, for K to return to the status quo that he enjoyed previously. If K is to spend more time with his mother it will be in very different circumstances from those that he enjoyed previously.

4.  The court is now charged with determining what is in the best interests of K at this particular point in time, given the present circumstances and the fact that he does not appear to be thriving at present. According to Dr P’s most recent report (see paragraphs 54 – 57 below), K has regressed and he is exhibiting worrying behaviours first observed over a year ago. 

Background to the marriage

5.  This case has been before me on a number of occasions previously. On the 7 November 2012 I set out the background to the marriage in a judgment on maintenance pending suit. Some of what is said in that judgment is still pertinent now and is worth repeating as follows:

4. The wife on her case has been a full time wife since the marriage and a full time mother since K’s birth. Although well educated she says that she has not worked by agreement. Even had she wanted to work, given that she is a Malaysian national and has for the most part travelled around Asia because of her husband’s employment, she says she would not have been able to because she was on a dependant’s visa which precluded that as a possibility. I accept what she says in this respect.

I continued

10. The parties married in August 2001. They are both Malaysian nationals. The husband is an accountant and has held senior positions throughout the marriage both in house as a Chief Financial Officer and as a Chief Executive Officer with one of the magic circle accountancy firms. This was apart from a brief period of nine months in 2009 when he was inbetween jobs.  The couple travelled around the region in order to pursue various job opportunities of the husband. In 2003 they moved to Shanghai, in 2005 they moved from Shanghai to Hong Kong for a brief period and from there to Beijing, which is where K was born and then in 2007 back to Hong Kong. Although the wife worked prior to the marriage both in the finance field and as cabin crew, she has not worked in a full time capacity since the parties married. In  August 2005 K was born.

11. It seems that the marriage was not a happy one and by 2008 it was in serious difficulty with the wife alleging that the husband had formed a relationship with a work colleague. Consequently in November 2008 the husband transferred certain assets to the wife…

13. In October 2011 the wife moved out of the matrimonial home. Again there is a dispute over this. The wife says that she was forced out whereas the husband says that she moved out voluntarily in order to live with her boyfriend. In either event the wife did not take K with her…

The litigation

6. a) On the 8 October 2011 the mother issued proceedings for divorce based on two years separation – just over a week after leaving the father. These proceedings were initially defended. On the 4 December 2012 the parties eventually compromised the issue of the suit and it was agreed that the divorce would proceed on the basis of one year separation with consent. A second divorce petition was accordingly filed.

b) The mother did not issue an application for interim custody and care and control at an early stage. Instead on the 14 December 2011, she issued an ex parte application for access and she was granted an order in terms. The order of the 16 December 2011 gave her some access over Christmas and weekly access thereafter on Monday’s, Tuesday’s and Wednesday’s from after school until 7:00 pm.

c) On the 9 January 2012 a further order was made giving the mother access over Chinese New Year and also on every alternate weekend from 6 pm on Saturday to 6:00 pm on Sunday. Again an order was made more or less in the terms requested by the mother.

d) On the 29 June 2012 the father issued an application seeking to suspend access because of an incident in which the father alleges that the mother behaved in a bizarre and aggressive fashion towards K.

e) Following receipt of a short updated Social Investigation Report, access was not suspended. Instead an order was made whereby the school summer holiday was shared on a week on week off basis. This order is dated the 14 June 2012. The father says in his subsequent affidavit that it had never been his intention to permanently suspend access.

f) On the 25 October 2012 an order was made granting the father interim custody and care and control of K after the mother refused to return K to the father’s care following access. The father alleges that the mother was emotionally unstable at that time.

g) On the 7 November 2012 an order was made granting the wife maintenance pending suit of HK$40,000 per month and litigation funding of HK$10,000 per month.

h) In February 2013 the mother accused the father’s domestic helper of abusing K. She reported the matter to the police without discussing it first with the father. As a result K was hospitalized for approximately one week. There was a police investigation.  The allegations were not proven and the multi disciplinary case conference held following the incident found that the case was not established as a child abuse case. Nevertheless the domestic helper left the father’s employ. Whatever the rights and wrongs of this particular situation it is likely that this will have had a very traumatic effect on K. He also lost the only other long term stable adult influence in his life as a result.  

i) Shortly thereafter on the 6 March 2013 the mother applied for interim joint custody and care and control. This was refused given the fact that the trial on all matters was due to be heard in June 2013.

7.  Constant themes throughout the pleadings, in addition to those already identified, include the father’s claims that the mother is mentally and emotionally unstable. He says that she coaches the child and is guilty of manipulation. He also alleges that the mother had an ulterior motive in that he believes that she wants to use K to get more money from him.  The mother for her part maintains that the father’s care of K is not adequate and she also accuses him of being manipulative. It is of note that the parties were in mediation for a considerable period of time without success and that in addition they appointed another senior lawyer/mediator to help facilitate a private FDR. This was also unsuccessful.    

The issues

8.  The present issues before the court are:

What happened on the 30 September/1 October 2011?

How should K’s time be allocated between his parents in the short to medium term?

Given those arrangements what orders should be made for custody/joint custody, care and control, access and/or shared care?

What happened on the 30 September/1 October 2011?

9.  I have now had the opportunity to reread all of the pleadings and to review what each party has said in the witness box. It is clear from that the position of each has hardened as the litigation has progressed – especially in so far as the incident of the 30 September/1 October 2011 is concerned.

10.  In the mother’s very first affirmation dated the 13 December 2011, filed in support of her application for access, she described the incident thus:

11. Since 1 October 2011 I was not allowed to return to the H [the former matrimonial home].  I now live on my own in a serviced apartment at Suite A, HSH.

12. On 30 September 2011 at around 9 pm the Respondent and I had a serious dispute at home.  He cursed me in a very loud voice, threw his shoe towards me and threatened to hurt me.  I was very frightened and called the police.  This was the 6^th time I had called the police for help at times of desperation.  Later in the same evening he was arrested by the police suspected of criminal intimidation.  However upon his release from the police station at around 5 am on 1 October 2011 the CID police officer involved in the case advised me not to stay at the H for that night/early morning as the Respondent was still very unstable.  So in the middle of the night I went and stayed overnight at my sister’s home.  I did not take K because he was already sleeping and I did not want to disturb him in the middle of the night.

13. The next day 1 October 2011 I tried to call K but could not reach him and when I called the concierge of the H I was told that my access/resident card had been cancelled by the Respondent and that he had given instructions to the concierge that I was not allowed to enter the H and not to be informed of anything regarding K.  The Respondent also asked me, through the domestic helper, to return the door key and the mailbox key.

11.  The father did not respond to this version of events in his affidavit evidence until his 4^th affidavit dated the 11 July 2012, i.e. nearly 7 months after the mother’s affidavit was filed, when he says at paragraph 19 and 20 as follows:

19. Ever since the Petitioner began her new relationship, she and her boyfriend have been planning her move from the matrimonial home.  On one occasion, it was discovered that the Petitioner and her boyfriend were discussing strategies on how to hit me hard and to obtain my money.  At the same time, the Petitioner helped him remove several belongings such as the electric cooker from the matrimonial home to their pre-planned MOS residence.

20. On 5^th September 2011, the boyfriend even instructed the Petitioner to change all her bank statements to an address that would now be her residence. It was not until later that I began to understand her reason for calling the police on 30^th September.  This was done to allow the Petitioner to build a case in supporting her moving out of the matrimonial home and to maximize her potential monetary claim against me.

12.  He adds in his 5th affidavit of the 19 July 2012 the following comments:   

18. In response to paragraph 3, I crave leave to refer to paragraphs 19 and 20 of my 4^th Affidavit.  The Petitioner left the matrimonial home at her own accord and by no means was she “forced” to be separated from K.  As outlined in my 4^th Affidavit, the Petitioner left K at the matrimonial home wilfully and with plan.  Her moving out was purely initiated by her desire to live with her current boyfriend DW in early September 2011.  Coincidentally, DW was also the friend the Petitioner referred to in paragraph 31.  I genuinely believe that K was not her first priority in any event.  The Petitioner has been cohabiting with DW since she left the matrimonial home on 1^st October 2011 until now.

19. As to the Petitioner’s claim in paragraph 5 that she “failed to get proper access to K”. I repeat paragraph 6 above.  All access arrangements for K were based in accordance with the orders of Her Honour Judge Melloy.  The arrangements were made in accordance to the Petitioner’s own preference.

20. In reference to paragraph 7, on the night of 1^st October 2011, the fact was that the Petitioner’s sister MY and her friend EW were trying very hard to persuade the Petitioner to stay over MY’s residence in Happy Valley.

13.  It is clear from the affidavits filed and the evidence from the parties in the witness box that the marriage had been in significant difficulty for a considerable period of time. It is also clear that the parties had discussed the possibility of divorce. Both sides had obtained some legal advice as is evidenced by the letters and e-mails that have been produced during the trial.

14.  I accept that the mother had formed a relationship with Dr W from an early stage, although it seems likely that it did not become a fully committed relationship until much later. It is of note that both Dr W and the mother were consistently untruthful about this. In preparation for leaving the matrimonial home the wife identified a serviced apartment and on the 21 September 2011, prior to the incident, she paid a monthly licence fee of HK$14,300. It seems that she was not cohabiting with Dr W at that time.

15.  Notwithstanding that neither party could have anticipated the events of the 30 September 2011. I accept that the mother was advised by the Police not to go back to the matrimonial home and that given the circumstances she thought it best not to wake K and to take him with her – especially as at that stage she was only going to her sister’s for one night and historically she has had a very difficult relationship with her sister. Almost immediately the father changed the locks on the matrimonial home and informed management not to allow her entry to the apartment complex. I accept that in those circumstances that it would have been very difficult for the mother to simply take K with her in the week or so that followed. This is especially so given the letter from the father’s Malaysian lawyer dated the 29^th September 2011, i.e. the day before the incident, where the father makes it clear that he intends to contest custody. The letter states as follows:

We act for VLKK and refer you to the abovementioned matter.

Please be informed that our client wish to file for a divorce and as such kindly let us know whether you are agreeable to the filling of Joint Divorce Petition in order to safe time & cost of all parties concerned.

We have been informed by our client that you had an extra marital affair and have committed adultery recently whilst being married to our client.  Further thereto we have also been informed by our client that our client has sufficient evidence to prove the above statement and will tender the relevant evidence to the court to prove the above statement if the need arise.

Further thereto, please be informed that our client wish to take the custody, care and control of KLRS (the child to the said marriage) and can consider to give you the visitation rights/reasonable access to the said child.

Our client is however not agreeable to pay any maintenance to you due to the above captioned reason.  Kindly revert back and let us have your early reply soonest in the event you are agreeable to the filling of a Joint Divorce Petition.

This makes the father’s intentions very clear indeed. In these circumstances I do not think it is accurate to say that the mother “abandoned K” or that she was “kicked out” of the former matrimonial home.

16.  Unfortunately however the mother did not then seek an order for care and control at the first available opportunity in December 2011. Mr Egerton says that this is when the case began to go wrong from the mother’s perspective. I tend to agree. Instead of applying immediately for the child to be based with her, the mother simply sought access – which was granted on the terms that she requested. This was seemingly in order to fit in with her work schedule. The impression given was that she did not wish to seek care and control of K at that stage for her own reasons – whatever those might be. From her evidence in the witness box it seems that the mother’s overriding concern at that stage was that the father might seek to deport her as she only had a dependant’s visa. She was anxious to secure a visa in her own right before pursuing her claim for the custody and care and control of K. Thus although she said in the prayer of her first petition that she was seeking at first an order for joint custody and care and control and later an order for sole custody and care and control of K, she did not action this at all in the immediate to short term. In the meantime the father brought his parents over from Malaysia in order to help take care of K and he allegedly changed his work schedule so that he did not have to travel as frequently as before and could initially at least get home early to spend time with K.

17.  I accept that the mother was already planning to leave when the incident of the 30 September 2011 occurred but that she had hoped to do so in a more orderly and sensible fashion. This unfortunately did not prove possible. It seems that her intention had always been to take K with her. However once the incident of the 30 September took place events took a different and more litigious turn. It seems that the mother did not issue an application for care and control out of concern primarily for her immigration status although I would accept, as argued, by the father that she may also have had other reasons for not issuing an application at that time. The mother says that she always acted on the advice of her lawyers. I would accept what she says in this respect. This strategic decision however has had very significant ramifications, as the delay has meant that K’s status quo has altered significantly.

The law in Hong Kong

Custody, Care and control, access and shared care

18.  The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

19.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

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

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

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

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

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

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

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

20.  Both sides have referred me to the leading Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010 on the issues of custody, care and control and access. I do not intend to repeat all of what is said in that judgment, but given the way in which this litigation has developed, it seems to me that the parties should take on board the comments made by the Hon Mr Justice Hartmann, JA, when he said as follows:

The concepts of ‘custody’ and ‘care and control’

28. As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books.

29. Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

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

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

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

21.  This case, it could be said, is also another prime example. Both parents it seems want “sole custody” because each wants to “win” the right to make all of the decisions in relation to the child. The mother’s approach to medical issues during the adjournment is an example of this. She took the child to the Hong Kong Baptist Hospital without informing the father of the same. When told by the hospital authorities that she needed to seek the father’s approval for treatment because he had interim custody and care and control, the mother took the child to St Teresa’s hospital for treatment. When challenged on this in the witness box she seemed to have no concept of this being inappropriate behavior on her behalf. She felt that she had the “right” to do as she did because she was the mother. The Right Hon Mr Justice Hartmann continues:        

36. It is to be emphasized in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent.  Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

37. In the same case, Cumming-Bruce LJ, another experienced family judge, said:

“… it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

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

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

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

41. For this reason it is often said that there is a thin line between sole custody and joint custody.

He concluded

43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control.  This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child.

A shift in societal values

45. There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity.  The mother was best left to care for the child, certainly when the child was young.  The father was best left to provide financial support and to exercise rights of guardianship.  As for his contact with the child, visitation was deemed sufficient.  Today, such sexist views are obsolete.

46. Social imperatives change.  When they are important and lasting, the common law can, and should, keep pace with that change.

47. It is widely recognized today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.

He went on to discuss joint custody as follows:  

Joint Custody: the proper approach

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

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

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order or 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 recognizing 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.

22.  Thus it is generally accepted that joint custody means that the parents should, in an ideal world, be able to make the major decisions concerning their child’s life together. On occasions joint custody orders have been described as “aspirational”, (see the first instance decision in PD v KWW, which was upheld on this appeal). Counsel for the father points out that this approach has been criticized (but by a differently constituted Court of Appeal) in Y v P [2009] HKEC 1322, where Mr Justice Rogers referred to the order in that instance being “more a matter of wishful thinking than a matter of practical reality”. In CCMJ v SSM [2013] HKLRD 497, the Court of Appeal upheld an order for sole custody where the father had made the mother’s life unbearable and where it was held that he was “determined to ‘micromanage every aspect and every minutiae of a child’s life”. 

23.  In this case it is of note, as counsel for the wife has pointed out, that there are no immediate custodial decisions to be made. There are no issues with respect to K’s religious upbringing nor do any major decisions need to be made with respect to medical issues. K is currently attending an international school and he is able to stay there for the immediate future – certainly until June 2016. It is only in the run up to that that the parties will need to give some thought to K’s secondary education. As indicated above, both parties will need to be consulted in that process regardless of whether there is an order for sole or joint custody. I should add that this case will almost certainly be brought back to court before that time in any event.    

Shared care

24.  Orders for “shared care” as opposed to an order for “care and control” and “access”, are also becoming more popular – especially in high conflict cases. These orders are now more routinely made in the Family Court although they are still less common than other forms of order.

25.  In SKP v Y,ITT FCMC 17772 0f 2011 (unreported) the whole issue of legal terminology in the context of arrangements for children was considered.  In particular the difference between joint custody and joint care and control was considered when compared to an order for joint or sole custody and shared care.

Joint care and control

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

I continued

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

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

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

Detailed arrangements were then set out accordingly.

23. In TAC v VDC nee VDM FCMC 16497 2010 I made an order for joint custody and shared care. Again there was a very high level of conflict between the parents necessitating a very detailed order, which was again more reminiscent of a parallel parenting regime. I did not think it appropriate in that case for the important decision making power to vest in one parent only.

The evidence

26.  I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, or one of the other witnesses, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.  In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.

27.  I heard evidence from the father and the mother, the social welfare officer, the mother’s new partner and the father’s parents.

Each party’s proposals

28.  I asked each party to provide the court with a proposal in relation to K’s time in the alternative – i.e. if they had care and control, if the other side had care and control or if there was an order for shared care.

How should K’s time be allocated between his parents in the short to medium term?

The present arrangement

29.  At present the mother continues to see K every Monday, Tuesday and Wednesday from after school until 7:00 pm and every alternate weekend from 6:00 pm on Saturday to 6:00 pm on Sunday. The parties generally split the school holidays in some way.

The mother’s proposal

If the mother has care and control

30.  The mother proposes that instead of splitting the weekends as they do at present, that the parties alternate the weekends with the father having from 6:30 pm on Friday until Monday when he will drop K off at school on an alternate week basis. In addition the mother is proposing that the father see K for short periods in the weeks that there is no staying access i.e. from 6:00 pm – 8:30 pm on Wednesdays and Fridays. She is not proposing any staying access otherwise or that K see’s his father during the week when he has staying access.

If the father has care and control

31.  If the father is granted care and control however the mother proposes significant overnight staying access for herself as follows:

29. Alternate Weekend Staying Access from Thu 3:15pm to Mon 8:30am the following week;

o  Alternate Weekday Staying Access from 4:30pm Wednesday* to 6:30pm Friday, the week Mother does not have staying access.  Father picks K up from Mother’s place on Friday at 6:30pm after K finishes attending his sports lesson.

The mother wishes to arrange extracurricular activities for K whilst the child is in her care and says in particular that he will have an after school Chinese class on Wednesday afternoon beginning in January 2014.

32.  The mother makes no separate proposal for shared care. So in summary if the mother has care and control she is proposing limiting the father’s time with K quite significantly to an hour and a half twice per week and alternate weekend staying access. If care and control is granted to the father she wants a much more generous arrangement put in place whereby K sleeps at her place on either two or four nights per week also on an alternate week basis.

33.  The mother also makes proposals for the school holidays. She basically suggests that all the holidays be split as opposed to alternated in some way. Finally she notes that:

Summer School

The Mother and her partner Dr.W plan to bring K to a summer school either in Australia or the USA in 2015 or 2016, during Dr. W’s sabbatical leave.  Mother hopes Father would give a reasonable consideration and consent to it, as the benefit and interest of K.

The access arrangement will split and resume as 50:50 after the summer school ends and the child returns to Hong Kong.

The father’s proposal

34.  If the father has care and control he proposes that:

· M has staying access to K every week from 11:00am Sunday to 8:45am Tuesday (K stays overnight at HSH with M every Sunday and Monday) (i.e. for 2 nights)

· K will return to the H by school bus or F will pick him up after school on Tuesday and will continue to stay there with F and grandparents until Sunday morning when M picks him up from the H for the piano lesson (i.e. for 5 nights)

35.  If the mother has care and control he proposes that:

· F has staying access to K every week from after school on Thursday to 11:00am Sunday when M picks K up from the H to attend his piano lesson (K stays overnight at H with F and grandparents every Thursday, Friday and Saturday) (i.e. for 3 nights)

· K will be with M after the piano lesson at 12:45pm and will stay with her at HSH every week until she takes him to school on Thursday morning. (i.e. for 4 nights)

36.  If the parties have joint custody and shared care the father proposes that:

· M has staying access to K every week from 11:00am Sunday to 8:45am Wednesday (K stays overnight at HSH with M every Sunday, Monday and Tuesday) (i.e. for 3 nights)

· K will return to the H by school bus or F will pick him up after school on Wednesdays and will continue to stay there with F and grandparents until Sunday morning when M picks him up for the piano lesson (i.e. for 4 nights)

Thus in all three scenarios the father proposes splitting the weekend with him having Saturday’s and the mother having Sundays and that K stays with each parent for varying amounts of time during the week.  

The experts’ reports

37.  One of the difficulties in this case is the divergence of views expressed by the experts involved. By court order dated the 16 December 2011 a request was made for both a clinical psychologist report and a social welfare report. Other reports followed, including latterly an updated report from the child psychologist Dr P.

Clinical Psychologist’s report

38.  The clinical psychologist report dated the 16 May 2012 said that both parties blamed the other for the breakdown of the marriage and that

Each parent ... perceived that he/she was a better custodial parent of choice and wanted to protect K from the harms of the other parent.

39.  The report went on to comment on the mental condition of each parent as follows:

12.  The information gathered in the clinical interviews with the parents suggested that they both demonstrated adequate cognitive and emotional capacity to comprehend the consequences of their behaviors and make their own decision accordingly. No clinically significant problems were identified on their parts. With that cognitive and emotional capacity, they were impressed to be able to take care of K at acceptable level at the present stage.

The report stated that K

... appeared to be more emotionally attached to the mother than the father   

But that he was

... more spontaneous and cheerful when playing with the father than with the mother.

In conclusion the psychologist stated as follows:

27. The present assessment suggests that the parents loved K despite their marital breakdown and wanted him to have a good future.  Though each parent worried that the other parent might hurt K due to his/her problems, each parent demonstrated adequate mental and parenting capacity of taking care of K in the present assessment despite some limitations (e.g. with the father sometimes being submissive when K refused to follow his limits or instructions while the mother sometimes not being respectful to K’s views when they are different from hers). K also loved both parents with no sign of fear or avoidance though he appeared to be more emotionally attached to the mother and more cheerful when playing with the father.  He, however, worried that if he expressed his love of one parent to the other parent, the other parent would feel hurt and become angry with him.  The parents’ intense conflicts and negative views on each other appeared to have ruined their mutual trust on each other, blocked their communication, and trapped K in a loyalty conflict of being forced to choose between them.  Their concerns and worries about each other’s harms on K seemed to be rather catastrophic and reflected their lack of mutual trust.

28. Since there is no evidence substantiating each parent’s physical or psychological harms or behaviors on K, the parents’ access on K needs to be maintained and facilitated so that he can have the opportunity to develop his relationship with each parent based on his own experience.  The parents need to genuinely cooperate to free him from the loyalty conflict of being forced to choose between them.  In view of that, they are recommended to:

- recognize K’s benefits from having relationship with both parents which is the foundation of his future social and familial interpersonal relationship;

- grant K their permission that he can love the parents to free him from being forced to choose between them.

Unfortunately it seems that the parents have not been able to act on the recommendations made.

The Social Welfare Reports

40.  The social welfare officer submitted three reports dated the 4 June 2012, 20 July 2012 and the 30 April 2013 and she was in the witness box for just over three days. As will be seen there were some difficulties with her evidence. Generally speaking social welfare officers are invaluable to the courts and their insights and recommendations often form the basis of court orders. In the event that a court decides not to follow a social welfare officers recommendations reasons must be given.      

The report dated the 4 June 2012

41.  In her first report the social welfare officer recommended that sole custody be given to the father with very limited access to the mother on alternate weekends and over the school holidays. She recommended that the mother’s current access on weekdays be replaced by dinner access only as the present regime was not considered to be “beneficial” to K.

42.  In making those recommendations the social welfare officer said that she had not read the psychologist’s report, referred to above. The Social Welfare Officer explained that she was of the view that the clinical psychologist’s report dealt with different aspects of the case and that there was no need for her to read that report before filing her own. The report was infact sent to her and she then simply forwarded it to the court with her own report. Therefore she had not taken into account what was said in that report inter alia about the close emotional bond between K and his mother, although she did acknowledge that

Being the primary care giver to him in the past 6 years of his life, Ms L and K must have a close bondage and attachment.

She added

It was a bit unbelievable that Ms L had not included K in her plan when she stayed away from home on 1.10.2011, particularly when she had thought of divorce since 2008. Fortunately, the abrupt separation seemed to have not casted serious consequence on the child as progress had been shown in his school work while he had also become more sociable.  This had to some extent reflected the father’s effort in minimizing the adverse effect of the parents’ separation on the child.

43.  In her concluding remarks and recommendations she said in addition to paragraph 34 above that:

32. From the allegation of both parties, it was sure that both Ms L and Mr L had made their contribution to the family in the past.  Ms L was the housewife taking care of the son and family while Mr L was the sole breadwinner providing the family with financial support.  However, owing to the frequent disputes of the parties before and after their separation, particularly the arguments after the access in recent months, there is an absence of a foundation for them to work cooperatively.  Hence, joint custody in this case is considered not feasible.

33. In assessing their ability to be the custodial parent, Mr L has outweighed Ms L for his financial capability.  Considering the living environment, K has been living at the present abode since 2007.  The environment is familiar to him. Ms L’s current residence is just a family style hotel suites with most of the residents are short term tenants, such as tourists, short-term workers to Hong Kong, etc.  The environment or atmosphere there makes it a transitional place rather than a stable home and cannot provide a sense of belonging to the child.

35. From the observation to the interaction between K and his parents, it was sure that K related well with both parents and he enjoyed their company.  However, Ms L seemed to be lacking in the effective skills to manage K’s behaviour.  Besides, she had put leading questions to K during the investigating officer’s visit concerning the choice of custodial parent which had apparently put pressure on the little child.  Mr L, on the other hand, appeared to be more patient in dealing with K.  The father and son communicated freely and naturally with no guiding or leading questions from Mr L throughout the process.  K appeared to be more relaxed at his father’s home.

36. For the future child care arrangement, Mr L has a full time job and needs to go for business trips sometimes.  The child is mainly looked after by a domestic helper, who has been taking care of him for 4 years.  His parents who are retired persons, can also offer child care assistance to him.  Besides, Mr L has adjusted his working hours and cut down his business trips so that he can supervise K personally after work.  Ms L is a part-time teacher.  She can have more time to spend with K after school but she needs to work on Thursday, Friday and Saturday. Further, as indicated in her employment letter, she is expected to work full time in 12 months’ time.  If so, she has to employ a domestic helper to assist her.  In this regard, the quality of care from the new domestic helper to K is in doubt.

37. The residence status might cast some uncertainty on the child care arrangement in this case.  Ms L is now a dependant of the Quality Migrant Admission Scheme and is permitted to remain in Hong Kong till 29.1.2013.  There are variable for her residence status afterwards and the possibility for her to provide a stable nurturing environment for K is uncertain.  Since the parents’ separation, K had to face the breaking up of the family.  Further variations of the living and schooling environment as well as the caring arrangement are considered not desirable in his growth and development.  Mr L had been granted residence not desirable to his growth and development.  Mr L had been granted residence in HK through the Quality Migrant Admission Scheme.  He had extended his tenancy agreement at the present address commencing 1.1.2012 and the contract with the domestic helper for two years.  It was sure that the care to K is stable in the foreseeable future.  There is no need for him to adjust to new environment and the care giver if Mr L were his custodial parent.

38. On the whole, K has been receiving proper care no matter before and after the parents’ separation on 1.10.2011.  Regarding the future plan, Mr L has indicated a much more long term and stable arrangement in child care while Ms L can only present with a very temporary arrangement for herself and the child.  The existence of uncertainties from Ms L’s side is considered undesirable for the growth and development of a tender age child who had just overcome from the traumatic experience of his parents’ separation. Under such circumstances, the undersigned incline to recommend that the sole custody of the child of the family, namely LRSK be granted to the Respondent father, Mr LKKV with defined staying access on alternate weekend and long school holidays, including Christmas and New Year, Easter Holiday, Summer Holiday and Lunar New Year to the Petitioner mother, Ms LMM.  Considering the current disturbance to the child’s daily routines and school life originated from the access on Monday, Tuesday and Wednesday, weekday access is considered not beneficial to the child and is suggested to be replaced by dinner access.

44.  The Social welfare officer said in the witness box that she believed that the mother chose to leave K. She did not agree that it was reasonable for the child to be left at the matrimonial home on the 30 September 2011. She said that in her 22 years experience as a social welfare officer that she had never come across a case where a mother had left her child in similar circumstances. In other words the social welfare officer appears to have accepted the father’s version of what happened on the 30 September/1 October events, almost in its entirety

45.  I am concerned given that, that the social welfare officer may not have given sufficient weight to the close bond between K and his mother as identified by the clinical psychologist – especially bearing in mind the fact that the mother was the acknowledged primary care taking parent and K was only 6 years old at this time. In such circumstances it seems very likely that the mother was K’s main attachment figure. It is of note that even when challenged by counsel the social welfare officer would not accept that it might have been helpful for her to have read the clinical psychologists report before filing her own. I think she was wrong in this.  

46.  Another point of concern is the weight that the social welfare officer appears to have given to very negative comments made by the mother’s sister about the mother to the social welfare officer. She met with both the mother’s sister and the father’s parents. It is unclear why she would have met the sister given that she was not intended to have a care taking role with respect to K going forward. It seems that this was at the father’s request. When asked if she had told the mother of this she replied that she could not recall. An opportunity was given to the father to call the mother’s sister in order to clarify the situation. The mother’s sister did not wish to testify and the father did not subpoena her. Consequently I do not intend to attach any weight to paragraph 30 of the report or indeed to other references made to the sister’s views in other parts of the father’s evidence. 

The report dated the 23 July 2012

47.  This report arose as a result of the father’s application to suspend the mother’s access. The social welfare officer summarizes the father’s claims as follows:

(A1) The Petitioner had told the son not to follow her and even scolded him when they went shopping in the Sunshine Plaza;

(A2) The Petitioner had not paid the bus fare for K when they took the shuttle bus back to the Petitioner’s home after shopping;

(A3) The Petitioner had told the son to go outside the house and threatened to call the police and lock him in jail if he did not do so;

(A4) The Petitioner had called the police and the son had to press the end button to end the call;

(A5) The Petitioner had told the con that she would disappear and she wanted to die;

(A6) The Petitioner had scolded the son on every Monday, Tuesday and Wednesday;

(A7) The Petitioner said she wanted to die and she and the son were almost got hit by a car when they walked on the road;

(A8) The Petitioner had hit K with her hand and kicked the child’s body with her leg;

(A9) The Petitioner had used finger to poke the child on his head.

The father relied on a video tape of K recorded by him in which K is asked to recount these events and to “report” against the mother.

48.  In her conclusions and recommendations the social welfare officer says inter alia as follows:

24. To conclude, there were possibilities that both parents had exercised coaching to K to bad mouth the other party which had imposed pressure on the little boy who was cautious in mentioning his parents in front of the investigating officer. Both parents had to be blamed for imposing unnecessary psychological burden on their beloved son who was just 6 years old.  Besides, the findings also showed that Ms L might have acted out impulsively without caring about the safety of K during the access time.  Yet, from the observation on the mother son interaction during the home visit, K still enjoyed the company of his mother without any fear.  Together with the favourable comments from her friends, there was no significant ground to suspend Ms L’s access to K and it was also the right of the child to have access to his non-residing parent.  Therefore, Mr L’s application to suspend Ms L’s access was not supported.  However, Ms L should learn how to keep her temper or emotion under control and pay more attention on the child’s safety when he was staying with her.

As indicated above access was not suspended.

The report dated the 30 April 2013

49.  The social welfare officer commented on the views of K as follows:

25. K was brought by his father on 19.4.2013 and his mother on 21.4.2013 to meet the investigating officer alone.  He was taller and thinner but looked pale and tired.  He was no longer energetic and cheerful but appeared to be pre-occupied for some of the time.  He told the investigating officer that he liked to live with his mother.  Yet, he also told that his mother was always angry with him and told him to go back to The H.  He said he did not know how he had made his mother angry.  He recalled on certain occasions that his parents had fought against each other in the public and he found their acts annoying and did not like to witness this happened again.  He also asked the reasons for him to go to hospital so often and asked if it could it be minimized?  For his favourite sports, he liked playing football and basketball but not tennis.  He also liked playing piano but he said he only practiced it in his father’s house on Saturday.  He seldom practiced it in his mother’s house and had missed some piano lessons when he was with mother on Sunday.  He also like watching TV programmes and it was his father who accompanied him to watch the programmes at home.  On the whole, K was impressed to be nervous in these two meetings and stopped abruptly whenever his parents were mentioned.  He always asked about the time for him to leave.  He was apparently torn between his beloved parents.

50.  In conclusion she said that

29. To conclude, this is a high conflict case with both parties keen to claim the sole custody of the child of the family.  Their numerous complaints towards each other could have settled if they could put aside their negative feeling originated from the marital failure and working towards the well being of their son.  It was a pity to see that they had put a lot of energy to win the case at the expenses of their beloved child.

30. From the individual interviews with K, he said he liked to live with his mother.  However, the emotion and care from his mother seemed to be unpredictable and insecure as he was always told to go back to his father’s home when his mother was angry with him.  He was confused and vulnerable in such situation.  He felt more contented with the care from his paternal grandmother and enjoyed the company of his father.  Despite that his mother and Dr W also played piano, it was strange that he only practiced his piano in his father’s house.  He was also annoyed for witnessing the fighting/disputes between his parents in the public but he was helpless.  Instead of being a victim of suspected child abuse, he was already a victim of his parents’ disputes.  In this aspect, both parents had to be blamed for their failure to keep their emotion under control in front of their beloved son.  The high intensity of their disputes had turned K into an unhappy, inattentive and absent-minded child.  The sooner their disputes stopped the better to the healthy growth and development of K.

31. This time, Ms L presented with a strong readiness and child care capacity to claim the custody of K.  She had secured a full time job with flexible working hours so that she could take care of K after school.  She also planned to remarry so as to provide a more complete family to K.  Owing to his busy work schedule and heavy job responsibility, Mr L had to rely on his parents and the domestic helper in child care when he was at work.  Yet, he had proved his genuine concern about his son through his readiness to negotiate whenever he had arguments with Ms L.  He was serious in supervising K in completing his home assignment from school and from K at home.  His messages with the school teachers were also in depth, detailed and aimed at a fruitful and mutual sharing, showing that he was able to keep track of his son’s schooling and daily routines.

32. Screening through the parties’ arguments over the access arrangement, Ms L was impressed that she was overwhelmed by her negative feeling towards Mr L that made her overlook the need of K.  Even she was clear that would not be good for K to run around between two homes after a long school day, she still declined the suggestion from Mr L to pick up K directly from school on the days of her visiting access just because of the expenses incurred.  Besides, her weak ability to comply with the court order about access and her failure to respect Mr L as the parent having the interim custody and care and control in handling the son’s matters, especially the suspected child abuse incident which had led to the hospitalization of K, had reflected her impulsiveness which might bring risk to a little child who relied on his parents to protect him.

33. In view of the foregoing and the best interest of the child, the undersigned incline to maintain the recommendation made in the first social welfare report dated 4.6.2012 that:

(1) the sole custody of the child of the family, namely LRSK be granted to the Respondent father, Mr LKKV with defined staying access on alternate weekend to the Petitioner mother, Ms LMM;

(2) school holiday more than two days should be equally divided and the parents shared the first or second half in alternate year to minimize arguments and facilitate planning.

51.  Of note is the fact that the social welfare officer conducted a home visit with the father on this occasion but not the mother. She said that this was because she wanted to meet the new helper. However it also meant that she saw K in his father’s home but not at his mother’s. She did not consider this important. I think she was wrong in this also. It seems to me that it is very important, especially in a high conflict case such as this, for both parents not only to be treated equally, but to be seen to be treated equally. Otherwise there is a perception of unfairness – whether it is real or imagined.

52.  Mr Egerton for the mother put to the social welfare officer that she had allowed her subjective views of what was right and wrong to colour her reporting. The social welfare denied this and said that she had come to the conclusions that she did based on her professional judgment. I am however concerned that the social welfare officer seems to have made a value judgment about the mother and that this has influenced her approach to this case.

53.  Given all of the above and as will be seen later in this judgment, I have decided not to adopt the recommendations made by the social welfare officer.

Dr P’s reports

54.  Dr P filed two short reports arising out of her observations of play sessions with K. Although my understanding had been that the play therapy would continue after the hearing was adjourned I was very concerned to learn that K had not had the benefit of seeing Dr P in the interim. That situation has now been rectified. For the avoidance of doubt K should continue to see Dr P pending further order.

Report dated the 14 August 2012

55.  Dr P commented as follows:

In general, based on my observations of K, he is an introverted child and would either avoid or internalize his negative emotions and experiences.  He does not have the internal competencies to deal with such profound stressors in his world now. If the parents are not astute to his needs and concerns, K will suffer from internalizing behaviors such as depressive moods, withdrawal or using inappropriate behaviors such as regression or psychosomatic behaviors to express himself.  This could adversely affect his normal development and coping towards his parents’ separation.

My view is that K is adversely affected by the separation of his parents and this may be attributed to the lack of insight and discretion from both parents to protect K, a child who is only turning 7 years old from their acrimonious relationship.  K appeared to have a warm and loving relationship with both parents.  Therefore like all children in divorce, he longed to get his parents back together.  K is burdened and suffering from being caught between both parents.  Due to K’s age, he is not able to fully express or comprehend his feelings and understanding of the stressful situations at home or the actions taken by the adults.  K will continue to feel vulnerable and overwhelmed by these stressors and may have problems with healthy adjustment if both parents do not make concerted effort to protect K from their ongoing conflicts.

My recommendation is that K will continue to benefit from play therapy sessions; at least through the legal proceedings since there can be much unsettling issues and situations arising from them which can impact on K.  The session will continue to focus on building his competencies in adjustment to his parents’ separation, his acute sensitivities towards parents’ conflicts, mood and feelings as well as his general developmental needs.

I would also continue to work with both parents to guide them in protecting K from the acrimonious situation so that K can develop normally, gain relief from the tension and anxiety, and finally, adjust to the inevitable changes in his family.

Report dated the 26 September 2013

56.  Dr P added:

3. Since then, both parents reported a few critical incidents such as the child abuse case, hospitalizations and accident in school that could have impacted on K and his well being.  There are endless reports from each parents regarding miscommunications and mistrust over caring for K.  Legal letters were sent to one another each accusing of the other of negligence.  The sad reality is that both parents are not looking at K’s well being as their priority; an innocent and helpless child who must be protected from their differences; instead, each of them appeared to be putting K at risk of emotional dys-regulation.

4. It was easy to build rapport with K.  He remembered the play space and our relationship.  K was very engaged as usual.  It is disappointing to see that K’s needs, experiences and emotions had not changed since the last time we met which was 11 months ago.  He continues to exhibit overwhelming negative emotions.  His play and his thought processes continued to be disorganized and unfortunately more chaotic and aggressive.  This is obviously a reflection of his world now – astute to his parents’ conflicts and his family situation.

5. When K first arrived for his therapy, he appeared to be preoccupied, cautious and not spontaneous.  He was serious and only chose to play with one type of toy (puppets) and one play theme (destruction).  In his play, he also exhibits very flat affect and emotional reaction.  I am concerned that K may already have been traumatized by this high conflict divorce.  It is important to note that children of K’s age lacks the ego strengths and cognitive emotional inhibitors necessary to cope effectively with the impact of trauma, in this case the trauma of the divorce and the on going conflicts.  There are many ways to respond to one’s traumatic experiences and K’s responses to these critical events appeared to be emotional numbing where he demonstrated constricted emotions.  This may explain his play behaviors and general affect.

6. Throughout his 7 sessions of play therapy, his overarching play themes were aggression and conflict.  In every session, the recurring play scene is that he would set up scenes of war, using the same few puppets, with each team having different numbers of helpers to fight and destroy each other.  A few occasions, he labelled the puppets as his mother, his father and Uncle D; with his father in one camp and his mother and Uncle D as the other.  At other times, he will use another puppet to represent himself while the other puppets attack him.  It was heart breaking to watch his helplessness and frustrations in dealing with his reality.  It is important to note that many children do exhibit anger and aggression after divorce; however, these emotions should subside after a few months.  In addition, research has shown that the more a child is drawn into the marital conflict, the more emotional upheaval the child will experience (Amato & Booth, 1996; Wallerstein, 1991).  In this case, K has been caught in his parental conflict for more than a year, he is likely to be confused, frustrated, angry, and have loyalty conflicts.

7. In one of earlier sessions, K came into the playroom and reported to me that he would like to stay with his mother.  Only when I reassured him that I would not be the one making the decision and that our time together is not for him to take sides; that he appeared to be relaxed and can continue to play.  During this session, I confronted Ms L, she informed that K would consistently make this comment whenever he is with her.  Again, this reflects on the loyalty conflicts that K is suffering between his parents.  Even if Ms L has not consciously coach K to say this, K may already have his divided loyalties and will tell each parent different and opposing things about what they want.

8. Similar to the previous times I met with K, he continues to test boundaries and limits in the playroom.  Ms L also reported that K appeared to be rigid with rules and be inflexible with changes.  She also reported that he might have some social difficulties as well.  When K was younger, she was concerned if he was on the Austistic Spectrum.  However, I am more inclined to look at K’s behaviors as a reaction to this on going trauma.

It is important for the Court to refer to my previous brief report on K (Dated: 14 August 2012) as K has regressed and still exhibits all the behaviors observed a year ago.  My recommendations remains and should be enforced.  K still does not have the internal competencies to deal with such profound stressors in his world now.  If the parents are not astute to his needs and concerns, K will suffer from internalizing behaviors such as depressive moods, withdrawal or using inappropriate behaviors such as regression or psychosomatic behaviors to express himself.  This could adversely affect his normal development and coping towards his parents’ separation.

My view is that his parents are unable to separate their roles as parents and spouses.  They can’t peacefully make decisions for K’s welfare and negotiate issues related to K, hence putting K at an increased risk for problems.  In addition, with their continual open conflict between each of them, K feels that he has to take sides, this increase K’s emotional turmoil and also the feeling of loss and abandonment, perceiving that he is losing his non-custodial parent.

My recommendation is that K will continue to benefit from play therapy sessions for an extended period of time.  The session will continue to focus on building his competencies in adjustment to his parents’ separation, his acute sensitivities towards parents’ conflicts, mood and feelings as well as his general developmental needs.

I would also continue to work with both parents to guide them in protecting K from the acrimonious situation so that K can develop normally, gain relief from the tension and anxiety, and finally, adjust to the inevitable changes in his family.

57.  This report makes for very difficult reading. It is clear that K is in serious difficulty principally because of this ongoing litigation and that some changes need to be effected in order to try to ensure his mental and emotional stability going forward.

The mother’s case

58.  The mother seeks an order for sole custody and care and control of K. She seeks a return to what she regards as the status quo where she was the primary care taking parent. She says that she is more available that the father to look after K on a day to day basis. She says that she now works at Kumon on Mondays, Tuesdays and Thursdays from 9:30 am – 2:00 pm. It appears that her work schedule is quite flexible and that changes can be made by agreement with her employer. She wishes K to spend the majority of his time with her and Dr W. She says that she intends to take care of K herself and that she does not intend to employ a domestic helper.

The father’s case

59.  The father maintains that K is doing well where he is and that his present status quo should not be changed. He says that he is able to continue to take care of K with the assistance of his parents and a part time domestic helper.

60.  Each side makes countless accusations against the other – most of which I do not intend to go into in any depth - save as to comment quite generally that research has shown that it is not divorce that harms children, but the level of conflict between the parents. Both parents are guilty of contributing towards the continuing high level of conflict between them. Efforts now need to be made to rectify this.

The character of the parties

The mother

61.  The mother is softly spoken and was measured in her responses in the witness box. It was very unfortunate that despite her repeated assertions to the contrary, that the father was also able to show that she mother had lied on oath – in that it was clear that she had been having a sexual relationship with Dr W at the times identified by the father, despite the mother’s repeated protestations that this was not true. Her general credibility and indeed that of her partner Dr W was significantly compromised as a result.

62.  However it is clear that she loves K and that she wants to be a full time parent to him. I am sure that she is close to him and that he loves her deeply. Unfortunately her actions have on occasions had very serious and negative consequences. For example she filed a Police complaint against the father’s domestic helper without raising any issues with the father first. The result from K’s perspective was very unfortunate – he was asked to report against the helper (and presumably his father) and was kept in hospital for a considerable period of time. At the end of the day the helper, who had been in the family’s employ since K was very young, left and returned to the Philippines. The mother seems to have given no thought to the consequences of her actions which led to K losing the only other constant adult presence in his life apart from his parents. I am also very aware of the Social Welfare officer’s comments about the domestic helper and I am concerned that this may in part have led to this situation. 

63.  In addition the mother has also on occasions acted in an irrational and emotional way – putting K in the middle of the conflict including refusing to return K to the father after access, arranging for K to have his baby teeth extracted without seeking the father’s permission and also taking K to hospital during the adjournment – again without informing the father of the same. This is the sort of behaviour that can damage a child.

The father

64.  The father came across as an intelligent man who appeared to also have limited insight into the effect that the present conflict was having on his son. From his perspective K is doing fine. It was of note that the father placed a great deal of emphasis on academics and that there did not appear to be much scope for sport or other forms of extracurricular activities. I was particularly concerned that he did not arrange for K to continue to see Dr P in the interim – despite the fact that his son was clearly struggling on an emotional level. The father did not seem to recognise this. There also appears to have been a dispute between the parents about payment of Dr P’s fees, which seems to have influenced the decision making. In my view this was unforgiveable – although I would accept that the fault for this state of affairs lies with both parents. The mother also complains that the father’s physical care of K is inadequate. Although I would accept that it is “good enough” – the fact remains that K was diagnosed with balantitis during the adjournment and that this must have been very sore and should have been picked up by a responsible adult looking after him at the time. However I have no doubt that K is also close to his father and that their bond is now more established given the fact that he has been based with him for the last two years.  

65.  Just as the mother has on occasions acted in ways that are not in K’s best interest, likewise the father has done the same. For example he also asked K to report against his mother and recorded K doing just that, in support of his application to suspend access. Again such behaviour is likely to have had a negative effect on K.

The other witnesses

Dr W

66.  Dr W filed evidence in support of the mother. I would accept that he has a good relationship at the moment with K, although they have not yet lived together on a permanent basis. Dr W also has a son, who is about K’s age. It is unfortunate that the impression given in the pleadings at times was that Dr W wished to somehow replace the father in the eyes of K, so keen was he to support the mother’s case on custody. 

The paternal grandparents

67.  The paternal grandparents each gave evidence. They came across as being dedicated grandparents, who on hearing about their son’s difficulties agreed to assist as best they could. But they are quite elderly and it would clearly not be appropriate for them to take on a main care taking role for K for the majority of the time. This is especially so given the fact that the mother is also available to take care of him. (See L v C CACV 333 of 2007, Aslam v Ali CACV 144 of 2003 and P v P, CA 256 of 1996).

Conclusion

68.  Given all of this then how should K’s time be allocated between his parents in the short to medium term? I am concerned that the present arrangements are not working as well as they might, although this may in part be due to the continuing high level of conflict between the parents. Given the fact that K was originally cared for his mother on a more or less full time basis and that he was emotionally attached to her, it seems important that he should spend more time with his mother than he does at present. I am however concerned that K has not lived with Dr W before on a full time basis and that this will all be very new to him. He is also attached to his grandparents and he has got used to spending more time with them. He is also very close to his father. Given all of that I intend to make an order for the shared care of K with a view to ensuring that he continues to spend sufficient time with all of the important adults in his life, with whom he has formed an important attachment:

69.  School terms – on a fortnightly cycle:

a. On the first week of the cycle, which in the absence of an agreement to the contrary shall be the week beginning the 16 December 1013, K shall be in the care of his mother from Saturday at 6:00 pm when she shall pick K up from H until Thursday morning when K is dropped off at school; (i.e. 5 nights)

b. On the second week of the cycle K shall be in the care of his mother from Sunday at 12:45 pm when she shall pick him up from piano until Thursday morning when K is dropped off at school; (i.e. 4 nights)

c. K shall be in the care of his father for the other periods of time i.e. from Thursday after school until either Saturday at 6:00 pm in week one or Sunday at 12 noon in week two; (i.e. 2 or 3 nights)

70.  In this way K shall spend 9 nights per fortnight with his mother and 5 nights per fortnight with his father. This is also in keeping with his present regime whereby K sees his mother every alternate Saturday evening, all day Sunday and after school on Monday, Tuesday and Wednesday – the only difference being that he will spend the nights with his mother on the week days and the weekend arrangement will be slightly altered. In this way K will spend significantly more time with his mother than at present – but he will also have an opportunity to see his father and grandparents on a regular basis.

71.  Each parent shall be responsible for K’s homework and extracurricular activities/play dates etc when he is in their care. In the event of any minor illness, each parent will have the authority to take whatever action he or she deems appropriate in terms of medical care. Each parent will need to inform the other parent as soon as possible after the event. Any major decisions e.g. the necessity for an operation for example shall be decided upon by the parents together and in the absence of an agreement by the court. Each parent shall also be responsible for providing a set of clothes including a full school uniform for K when he is in their care. A dedicated e-mail account shall be set up in order to discuss any relevant matters pertaining to K only. It is also directed that the parties appoint a parenting coordinator to assist them with day to day decision making going forward.

72.  School summer holidays

The father has not provided a full proposal for the holidays saying that the present arrangement works out just fine. In contrast the mother’s proposal is quite complicated. For the avoidance of doubt the school holidays shall be divided on a roughly 50:50 basis. In the event that the parties are unable to reach full agreement on this, liberty shall be given for each party to file a further submission in relation to the same within the next 28 days. In so far as the school Christmas holidays are concerned, in the absence of any agreement to the contrary the school Christmas holiday shall be split with the father having the first week of the holiday and the mother the second week. K breaks up on Friday 20 December. K spends Thursday’s and Friday’s with his father ordinarily. Therefore the school holiday arrangement shall commence on Saturday 21 December. K shall therefore remain in the care of his father from Saturday 21 December until Saturday 28 December when K shall be picked up by the mother at 6:00 pm. K shall be in the care of the mother from then until the evening of Sunday 5 January 2014 whereupon the school term time arrangement will come into effect. Therefore K will remain in the care of his mother until Thursday 9 January.           

73.  Public holidays

a) When public holidays occur during school holidays or weekends they shall be considered part of K’s school holidays or weekends and shall be subject to the provisions referred to above;

b) When public holidays occur during other times, the parties shall care for K alternatively. For the avoidance of doubt the father shall care for K over the first public holiday and thereafter the public holidays will be alternated.     

Given these arrangements what orders should be made for custody/joint custody, care and control, access and/or shared care?

74.  In the circumstances it seems to me that the appropriate order in this case should be one for shared care. What though of custody? Neither party was willing at the end of the day to concede custody. Both would like an order for sole custody. There is little doubt in my mind that both parents have behaved inappropriately at times and both have exerted unacceptable and unreasonable pressure on K, so anxious have they each been to “win” custody. Both have made very serious allegations against the other, with little thought, it would seem, to the effect that this might have on their son. To use the term best loved by psychologists, neither seems to have any true “insight” into their own behaviour or its effect, so intent was each of them on “winning” this litigation, whatever the cost. The effect has been to seriously compromise the mental stability of their son who may have been traumatized by the actions taken by each of them within this litigation. In an ideal world, and if the law allowed, I would not make any order for custody in this case. Given that this is not possible I will make an order for joint custody. In doing so I acknowledge the high conflict nature of this litigation and the fact that the parties find it difficult to communicate with each other. I should reiterate however that I do not find either parent more capable than the other of being a sole custodial parent. I make the order for joint custody in order to enable each of them to make appropriate decisions in relation to possible custodial issues whilst K is in their care – especially for example in relation to medical issues. For the avoidance of doubt each parent should be able to take K to a hospital if he is ill or needs medical attention whilst they are caring for him. In so far as other custodial issues are concerned, I will be bringing this matter back in 15 months time i.e. in March/April 2015. If the parties are unable to reach any consensus in relation to K’s secondary schooling then the matter may be raised with the court then. I will also give liberty to apply generally in case any other custodial issues arise upon which they are unable to agree.

Costs

75.  Given the nature of this dispute I will make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs. There shall be certificate for counsel.

Orders            

76.  For the avoidance of doubt orders shall be made as follows:

1) There shall be an order for joint custody of K with shared care of him as set out in paragraph 69 – 73 above;

2) An updated SIR be called for in 15 months time;

3) Leave be given to the parties to file and exchange written submission on school holidays within the next 28 days in the event that full agreement cannot be reached in the meantime;

4) Liberty to apply on an urgent basis and otherwise;

5) There shall be no order as to costs and certificate for counsel. 

77.  Finally I would like to take this opportunity to thank both counsel for the measured way in which they approached this case, notwithstanding its inherent difficulties.