V v. W

FCMC 4191/ 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4191 OF 2012

----------------------------

----------------------------

__________________

RULING
(Expert Reports)

__________________

The Application

1. This is a 30-minute application taken out by the petitioner mother (“the Mother”).

2. This is also the latest combat between the parties arising from the battle on relocation ignited by the Mother by way of her application dated 19 May 2014.  In her application, the Mother, an XXXX, applies to have the two children of the family to be relocated with her back to XXXX.

3. Now what is before the court is the Mother’s application taken out on 23 September 2014, seeking the appointment of two single joint experts.  The first expert is a psychologist.  Paragraph 1 of her summons seeks the following order:-

That there be a single joint expert psychologist appointed to prepare a report on the family pursuant to the Petitioner’s Summons dated 19 May 2014 seeking permanent removal of the two children of the family and matters relating to custody, care and control and access mattes to be filed 14 days prior to the hearing commencing on 5 November 2014.

4. The second expert is an immigration expert.  The Mother asks for the expert’s opinion on her Hong Kong immigration status and the same to be filed 14 days prior to the hearing commencing on 5 November 2014.

The Background

5. The Mother’s application must be seen in the context of her relocation application.  It was taken out after the CDR hearing of 17 September 2014 and just about 1½ months away from the trial of her relocation application scheduled to commence on 5 November 2014, with 5 days reserved.  Prior to the CDR hearing, the Social Welfare Officer (“SWO”) had prepared her report (“SIR”) specifically for the purpose of the relocation application.  The SWO was not in favour of the Mother’s proposal.

6. In addition to this report, there were also two Social Investigation Reports dated 11 January 2013 and 14 January 2014 on the custody and care and control issues.  There is also an International Social Investigation Report dated 11 September 2014 and lodged on 13 October 2014. 

7. I think it is not in dispute that prior to the CDR hearing, there was no suggestion on the part of the Mother that any expert was required.  It was at the end of the CDR hearing that Mr Marwah, counsel then acting for the Mother, indicated to the court that the Mother would require the expert opinion of a psychologist.  Up to then, there was not any formal application nor was there any mention whatsoever of the need for an immigration expert.

8. It is now recognized by the parties that if the Mother’s application is allowed, the trial will have be vacated and re-fixed.

9. For the purpose of the present application, I do not think I need to set out the family background of the parties.  Suffice to say is that the Father is XXXXX and the Mother XXXXX.  The Father has been working as a pilot here since March, 2008 and before April this year, the Mother had been staying in Hong Kong as a dependent of the Father.  I understand she has now obtained a visa to stay for another year on her own.  She came to Hong Kong in June, 2008.  By June, 2015 she will have been staying here for 7 years.  There are 2 children of the family, both boys, the elder son L is now aged 7 and the younger son B is aged 4.

The Applicable Legal Principles

10. I believe the parties have no argument over the applicable principles regarding expert evidence.

11. To start with, in the present case, leave must be obtained from the court for adducing the expert evidence proposed by the Mother:  O 38, r 36(1), RHC. 

12. Leave may be granted when the matters of opinion are on questions on which the court cannot be expected to have the requisite knowledge or experience.  The function of an expert witness is to provide for the court an opinion as to the significance of or interferences to be drawn from proved facts, in a field in which the expert possess special knowledge and experience which is beyond that of the court.  Expert opinion evidence is permitted (when other opinion evidence is usually not) because that opinion will assist the court in reaching the correct and fair conclusion.

13. The Hong Kong Civil Procedure (2014) (Vol 2) has the following commentary at Para J1/58/3:-

Evidence relevant to a matter or issue in the proceedings - Both the common law and Section 58(1) require that the proposed evidence be relevant.  Section 58(3) declares that the concept of “relevant matter” includes an issue in the proceedings in question.  The word “relevant” is used in section in the sense that evidence is relevant if it is helpful to the court in arriving at its decision on one or more of the issues to be resolved: Wong Hoi Fung v American International Assurance Co. (Bermuda) Ltd & Another [2002] 3 HKLRD 507.

14. The party proposing to call a person to give expert evidence must demonstrate that there is a need for such evidence:  see Hong Kong Civil Procedure (2014), (Vol 2) at Para J1/58/8.

A Psychologist Report

The Mother’s Arguments

15. Mr Coleman, senior counsel for the Mother, submitted that the SIRs do not cover the necessary ground as to the psychological evaluation of the family, not least because the SWO is not qualified to cover that ground.  Rather, the reports reveal precisely the need for such independent expert opinion.  The need for the psychologist report arises not as a result of the recommendations of the SIR but as a result of the root towards that result.  He drew my attention to the Mother’s supporting affidavit where she referred to a number of internal inconsistencies, factual inaccuracies and absence of necessary consideration on the part of the SWO, some of these matters are right for psychologist.

16. He accepted that whilst some of these inconsistencies may be put to the SWO in her cross-examination, nevertheless he emphasized that the prevalence of these internal inconsistencies undermines the very factual underpinning of the recommendations.  Mr Coleman helpfully set out the Mother’s concerns as follows:-

(1)   it inaccurately places reliance on the Petitioner’s boyfriend living with her and the children in XXX; when in fact this is not part of her evidence;

(2)   it is clear that the children had heightened knowledge of the proposed removal plans notwithstanding the Petitioner’s undertaking not to discuss the proposed removal with the children; and the fact that the Petitioner has abided by her undertaking;

(3)   it reveals inconsistencies between the findings of the SWO of a loving relationship between the Mother-children and the ‘hostile’ behaviour of the child L during the observation periods;

(4)   it does not take proper account of the different domestic arrangements in the parties homes and that there are more chores and responsibilities in the Petitioner’s home than the Respondent’s and, when taking this into account, whether the children are of an age and maturity to express views on which home is preferred over the other ;

(5)   it inaccurately relies on the Respondent’s assertion that he would move to XXXX (and hence resign from his employment) if the relocation was granted, which is inconsistent with the Respondent’s evidence;

(6)   there is no consideration/assessment of the Respondent’s ability to properly care for the children taking into account that his job by nature takes him out of Hong Kong;

(7)   it places too much weight on the children’s homes and schooling arrangements in Hong Kong when L is 7 and has just started Primary 2 and B is 4½ and still completing kindergarten, and it does not properly consider the future education options for the children in Hong Kong;

(8)   the Respondent cannot be said to have stable accommodation when he lives in a two bedroom home and shares his bed with both growing boys and his domestic helper lives in the second bedroom;

(9)   there is no consideration of the children’s welfare in the event the Petitioner cannot remain in Hong Kong due to loss of visa;

(10)   there is no consideration of the children’s welfare for when they are in the Respondent’s care and taking into account his flying roster; and

(11)   there is no consideration of the Petitioner’s changed living circumstances of loss of maintenance, and how this has impacted her and the stress it has caused her and why her household may be tense compared to the Respondent’s.

17. Mr Coleman submitted that the court will be greatly assisted by the provision of a psychologist report in resolving these various matters and in providing an expert consideration of necessary ground. This is not something the court can or should do unassisted by such an expert.

The Respondent’s Arguments

18. Ms Sum’s main argument is that the court does not require a psychologist to challenge the findings of the SWO as he or she will be subject to cross examination at trial.  The court can then decide whether the recommendations made by the SWO are to be accepted.  If the Mother’s application were to succeed, this would mean in every case where one party does not like the findings of the SWO, which in reality would happen in almost every contested case, an expert would be required to put right the SWO’s errors.  The Mother has not proved any exceptional circumstances which required assessment by a psychologist. 

19. Further, it is obvious that the Mother does not like the conclusion of the SIR and the evidence given by the SWO at the CDR hearing.  Therefore, she is trying to ‘fish’ for another report that she hopes will find favour with her application.  This is a fishing expedition and a costly exercise.  It is unnecessary and it is inimical to the needs of the children that this matter delayed again.  The Mother had had ample opportunity to properly consider her removal application including whether expert evidence would be required.  The delay will cause more uncertainties to the Father and the children and they need finality in the matter as soon as possible.

Discussion

20. Ms Sum is certainly correct in pointing out that the Mother took no action and only intimated her wish to appoint a single joint psychologist at the CDR hearing, having heard the oral evidence of the SWO, which was against her application.  At that time, there was not even any mention of her intention to appoint a single joint immigration expert. 

21. Clearly, the Mother was utterly unhappy with the investigations carried out by the SWO and also her recommendations. 

22. To start with, the application is framed in an overly general term:  to prepare a report “on the family”.  There is no reference of any particular or specific purpose for which the report is to be obtained or any particular aspect or problem that the psychologist is asked to focus on.  Not every relocation case requires a psychologist report.  Thus, the question is whether a psychologist report is required in this case?  To me, the answer lies at whether the facts or the peculiar features of the present case or whether the presence or absence of particular behaviours of the parties or the children call for the opinion of a psychologist in order to assist the court in its deliberation.  In this connection, it is to be noted that no question was ever put to the SWO during the CDR hearing as to whether it had ever crossed her mind that a psychologist report was necessary.

23. The Mother argued that many of the underpinning facts are factually wrong, the SWO failed to give due considerations to this and that and there are contradictory or inconsistent findings.  Despite all the imperfections and pitfalls on the part of the SWO as alleged by the Mother, on which I do not need to come to any conclusion for the purpose of the present application, I fail to see how a psychologist may be able to address the concerns raised by the Mother.  By way of an example, the Mother challenged that there is no consideration or assessment on the part of the SWO of the Father’s ability to properly care for the children taking into account that his job by nature takes him out of Hong Kong.  Even if the SWO has, as a matter of fact, failed to consider this, I wonder how a psychologist would be in a better position than that of a social welfare officer in making the assessment. Ultimately, it is the court’s duty to find whether the SWO has failed to get the facts right or has failed to give due regard or considerations to any of the matters after having heard not only the testimony of the SWO but also the testimonies of the parties and their factual witnesses, if any.  It seems to me that what the Mother is asking for is effectively the obtaining of another SIR.  I do bear in mind that L (the elder son) is said to have shown certain ‘hostile’ behaviour towards the Mother as reported in paragraph 29 of the SIR dated 3 September 2014 in which the SWO observed that L dodged when the Mother planned to give him a kiss and at the beginning L refused to assist in making tofu cake and sausages stick.  After being reminded by the Mother, L offered his assistance.  To me, the SIR must be read as a whole.  In the same paragraph, it was observed that “… The children played continuously at their play corner after making food.  In sum, they were observed to have supporting interaction and the mother-children relationship was impressed to be full of love…”.  I do not find any suggestion of abnormality of behaviour on the part of the children.  There are no alarming circumstances which call for a psychologist expert report. 

24. Mr Coleman mentioned that there are now already conflicting recommendations.  The Hong Kong SIR does not recommend removal whilst the International SIR satisfies with the arrangement proposed by the Mother and gives a contrary recommendation.  Be that as it may, leaving the question of whether the International SIR would be in a position to give a recommendation in the absence of an interview with the Father and an observation of his interaction with the children aside, I do not think a further psychologist report would help.

25. For the above reasons, the Mother’s application for a psychologist report is rejected.

Immigration Expert

26. As regards the immigration expert, the Mother said in her supporting affidavit dated 23 September 2014 that the report would be on her immigration status so that the court can have expert evidence as to what ability she has to remain living in Hong Kong, including her ability to obtain employment and generate an income and conduct her everyday life so that she can provide to the best of her ability and care for the children.  She said she is concerned that the SWO has not fully considered that if her relocation application is not granted then how her immigration status impacts the children if she is removed from the children’s everyday lives. 

27. The Mother’s case is that she does not wish to remain in Hong Kong even if she has the ability to do so.  She wishes to return home with the children so that they may have long term stability, in terms of living, education and up-bringing there.  However, if her application for relocation fails, she would try to remain in Hong Kong because she is not leaving without the children.  Therefore, the court should know the likelihood of her ability to stay.  To be more precise, her ability to obtain some kind of visa to remain in Hong Kong. For this reason, an expert opinion is needed.

28. I accept that the likelihood of her being able to stay is one of the considerations that the court may take into account in its deliberation as to whether or not to allow the children to go, especially when the court is minded not to allow the application.  It is also of some relevancy to the extent that if the court is inclined to refuse the relocation application, then the court may need to consider this matter in the context of the care and control arrangement in Hong Kong.

29. Mr Coleman submitted that the expert is sought on matters involving consideration of specific factual matters (albeit by reference to or in the context of some law) as can identify the likely or potential ability of the Mother to remain in Hong Kong in any given set of circumstances.  They are not matters falling within the ordinary knowledge, experience or competence of the court. 

30. It is common ground that the law gives the Director of Immigration a very wide discretion as to whether or not to permit a person to stay in Hong Kong and if he does, what the conditions are.  The likelihood of the Mother being able to get a permission to stay is a mixed question of law and facts.  The parties are going to give their evidence in trial and their legal representatives may address the court on this issue by way of submissions. To me, the issue is entirely a matter of Hong Kong law.  Expert evidence on matters of Hong Kong law is inadmissible.  As such it is for submission and not for expert opinion:  Hong Kong Civil Procedure (2014), (Vol 2), at para J1/59/3. 

Order

31. For the above reasons, the petitioner’s summons is dismissed.

Costs

32. As it is an application in relation to children’s matters, I give an order nisi that there be no order as to costs.