NLC v. YMF

FCMC 8442/2018

[2021] HKFC 203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8442 OF 2018

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JUDGMENT

( Variation of custody & costs )

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1.  There is only one issue in this trial, namely whether an existing order made by consent on 17 September 2018 that the petitioner (“mother”) shall have sole custody of the only child of the family (ie a boy of 12 years old) should be varied 15 months after it was made to a joint custody order, pursuant to a summons taken out by the respondent (“father”) on 20 December 2019 (as amended on 18 May 2020).

Background

2.  The mother, now 44, is a full-time housewife and financially dependent on the father during their marriage.

3.  The father, now 47, used to work in various electronics and information technology-related companies. He quitted his job in 2012, and since then, he relies on his investment returns and rental income.

4.  The parties started dating when they were in university way back in the 1990s, and got married in 2005.  Their son was born in December 2008. He is now 12 years old and just started his secondary schooling this September.  He was diagnosed with autism spectrum disorder in 2016,[1] and strabismus/squinting eyes since 2010.

5.  The parties also had a daughter born in 2011, but sadly the baby daughter died after 1 week upon birth. This had caused tremendous grief to the mother, as the father told the social investigation officer that she was passive after the death of the baby daughter. Since then, the communication between the parties became less. There was no sex between them since 2014.

6.  It is not denied by the father that he had an extra-marital affair with his colleague in 2007. Their affair ended later and the parties stayed on with their marriage. However, he had another affair in 2016 when he started dating with his then girl-friend (now his present wife). [2] He later told the mother that his first son with the girl-friend was born in May 2018. 

7.  Two months later in July 2018, the mother filed her petition for divorce relying on the behaviour of the father.[3] He did not defend the petition.

8.  As at the time of the petition for divorce, the parties had not filed any Form Es. But it was known that the major family assets were held by the father. He owned 3 properties registered in his sole name. There was a 4^th property in Tsuen Wan registered in the joint names of the parties, and the mother was the borrower of the mortgage loan. According to one of the emails sent by the father to the mother on 6 September 2018, the net value of Tsuen Wan property at that time was $4,150,000.

9.  By a consent summons dated 7 September 2018 which was made into a consent order dated 17 September 2018 (“Consent Order”), the parties agreed that the mother shall have sole custody, care and control of the son, with reasonable day access to the father.

10.  Their ancillary relief was settled pursuant to a consent order dated 29 January 2019 (“AR Order”). In gist, the father was to keep all 4 family properties, including the Tsuen Wan property made possible by the mother’s transferring her interest in it to him. In return, he was to pay her a lump sum of $8,500,000, periodical payment of $20,000 for her and of $10,000 for the benefit of the son.

11.  Upon settlement of children and financial matters, decree absolute was granted on 15 March 2019.  A month later, the father married his girl-friend in April 2019. Their 2^nd son was born one year later in May 2020.

The application

12.  By his summons dated 20 December 2019 (as amended), the father seeks to:

(1)  vary the existing order of sole custody to one of joint custody; and

(2)  have more extensive access, including staying access.

13.  A children dispute resolution (CDR) was held before me on 16 October 2020, during which the parties settled on the issue of access, including staying access.

14.  However, they were unable to agree on the variation of custody. The father insisted that he should have joint custody of the son. The mother, however, said that there was no material change of circumstances to justify the variation, but was willing to offer her undertaking (“Undertakings”) to provide the father the following information within 3 days of receipt of the same in order to address to his concern:  

(1)  The user name and password of the online website of the son’s school;

(2)  Date, time and venue of the son’s medical follow up consultations;

(3)  Parents’ day, briefings/introduction session/open day of secondary schools.

The parties’ respective case

15.  The father relies on his 2^nd to 4^th affirmations in support of his application. In my view, his major grounds boil down to the following:

(1)  Way back to the time of their divorce, he was pressurised to accept the Consent Order because the mother had told him that she would not let him see the son unless and until he agreed with her proposal on custody/access as well as ancillary relief matters. In fact, he was not able to see the son for almost a week way back in August 2018 when the parties were negotiating for settlement of custody and ancillary relief matters;

(2)  He has concern that the mother will make important decisions for the son regarding his future education without any input from him, as she has not kept him informed of the son’s medical condition and/or allow him to attend the son’s medical consultations. A joint custody order will prevent her from unilaterally making decision for the son without considering his best interest;

(3)  His 2^nd marriage has settled down well and the son gets along well with his new family;

(4)  To push for the best interest of the son.

16.  The mother relies on her 2^nd affirmation to oppose the father’s application. She firmly believes that the status quo on sole custody should be maintained, because:

(1)  There is no material change of circumstances;

(2)  It is a strategic and well-planned move of the father to induce her to settle on the ancillary relief on a “no-disclosure” basis, after which he now re-litigates on the children issues.

Applicable law

17.  To begin with, it has to be reiterated that this trial concerns an application for variation of custody of the son granted solely to the mother pursuant to a consent order. The father is required to show, as the burden of proof lies squarely on him, that there is a material change of circumstances (See: C v S (Wardship: GMO) [2017] HKFLR 562, per B Chu J at §65).

18.  Then, under section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192, the court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18.  Apart from that, the general principles governing applications concerning children as set out in section 3 of the Guardianship of Minors Ordinance, Cap 13 also apply (See: section 48C of the Matrimonial Causes Ordinance, Cap. 179).  Section 3 states that:

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

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

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

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

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

19.  When dealing with children matters, the family court often refers to the “welfare checklist” set out in the English Children Act 1989 and in the recommendation of the Hong Kong Law Reform Commission’s report on custody and access of 7 March 2005.[4] It is now rather settled law in Hong Kong that:

(1)  although the welfare checklist has not yet found its way into our statute, judges may, as it is not compulsory, make use of it as an aide-mémoire.;

(2)  it is not mandatory for a judge to set out the welfare checklist mechanically item by item to demonstrate that he/she has considered the same;

(3)  the welfare checklist is not meant to be exhaustive. Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

(See: H v N [2012]5 HKLRD 498 per Poon CHCJ (then Poon J) at §§26-33 of the judgment; ZJ and XWN (Leave to Appeal: Child Relocation) [2018] 2 HKLRD 644 (Lam PJ (then Lam VP) and B Chu J) at §25 and §28 of the judgment).

20.  Reference is also made to the illuminating words of Hartmann JA (as he then was) in the oft-cited case in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191:

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

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

35. Equally, the father fears being deprived of joint custody because it is his view that society will perceive that he has thereby forfeited the rights and responsibilities of a father, being left only with the residual right to spend time with his daughter and the residual responsibility of making a financial contribution to the cost of her upbringing. 

36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent.  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 of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

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

21.  With these principles in mind, I shall begin by looking at the social investigation report.

Social investigation report (“SIR”)

22.  On the direction of the court, a social investigation report dated 29 April 2020 was prepared by Ms Chan (“SWO”) who was also called to give evidence in court.

23.  In giving her view that joint custody should be granted, the SWO gave the following comment in her report (translated from Chinese):

“39. Although at this stage the lack of trust between the parents makes them difficult to reach consensus, they are always the parents of the son and their relationship with the son will never change. Both parents have the duty to co-parenting. In the long run, the care and love shown by separated parents to the son will help him flourish physically and psychologically in a healthy way. Besides, joint custody will bring best interest to the son, and thus should be considered. As both parents have the duty to co-parenting, and since they possess the criteria for joint custody because they had made utmost effort to arrive at consensus on the issue of access in the past and they did not have big argument on the son’s medical, education and religious matters. Therefore, joint custody may be considered and tried out.”

24.  In addition to her report, the SWO explained in her oral evidence that she has worked as a social welfare officer for 27 years and has 4 years’ experience in preparing social investigation report. She would normally recommend joint custody unless the parents have immerse difficulty in agreeing on major issues involving medical, education and religion.  If it is a variation application, she would consider the reasons for making the previous order and why a party wants to vary the custody order.

25.  In so far as this case is concerned, the SWO acknowledged that the parties had difficulty in coming into agreement, in that it took a lot of time and effort for the parties to arrive at a consensus. This was especially difficult for the mother, as the father changed the access time from time to time on last minute, such that she needed to work out the new time table with the father on one hand, and to take care of the son and teach him to do homework on the other hand. In the end when agreement was able to be reached, it was mostly (about 70%) that the mother gave in to the father’s request.

26.  It is settled law that while the court has to give due consideration to any material information including any report from the SWO, the court is not bound to accept or follow the recommendation therein. The status of the “recommendation” of the SWO cannot be escalated to the “decision” of the court. (See: Naziya Aslam v Ali (Custody and Removal) [2009] HKFLR 294 at §27-§28; ZJ v XWN (supra) at §44; In Re C (A Child) [2016] Fam 253 at §72).

27.  In this case, I am not able to embrace the recommendation of joint custody made by the SWO because:

(1)  The SWO emphasized that joint custody was in the best interest of the son. When asked why, she elaborated that if joint custody was granted, the father would have to bear responsibility about the son on custody and finances; he might participate in major decisions of the son. With respect to SWO, a parent has to bear the financial contribution to a child of the family according to the reasonable needs of the child and the paying ability of each parent. It is not correct to say that the father in this case would have to bear the financial responsibility of the son only when a joint custody order is made;

(2)  Even according to the father’s own case, he could participate and is participating in the son’s major decisions without a joint custody order. According to his oral evidence, the trio of them (ie the father, the mother and the son) together made 2 important decisions recently, one on whether the son should do the eye operation, and another about the son’s choice of secondary school. This in turn shows that the sole custody order has been working well so far;

(3)  The SWO agreed in her oral evidence that under sole custody arrangement, the mother would not unilaterally make decisions on the son’s matters but would discuss the important matters with the father;

(4)  Above all and with respect to the SWO, when she was answering questions on why she recommended joint custody, I observed that she was hesitant and sometimes rather slow in giving her response to the questions being put to her by the mother’s counsel, giving me an overall impression that she was not very certain as to her own recommendation.

Ascertainable wish of the son

28.  As said, the son was born in 2008 and will be 13 years old this December. Although he has autism spectrum disorder, he is of high average range of intellectual functioning. It is noted that there is no allegation from either party in this trial that the son’s autism spectrum disorder would hinder him in giving his view on custody.

29.  During a one-to-one interview, the SWO was told that the son would like to live with the mother, though he enjoyed spending time with both parents. However, he did not express any view on custody and would let the judge decide.

30.  In his 4^th affirmation, the father said that it is not only him who desires a joint custody order, he believed that the son also wants both parents to have his joint custody.[5] He went even further to say in his oral evidence that the son has not expressed his true view on custody to the SWO. According to him, the son is very close and attached to (嗲) him. He also said that the son is not shy to express his view on topic(s) with which he has concern. He gave the example of what was spoken by the son when they were cycling together in late 2018 or early 2019. He told the son that he would have overnight access at his place later. He said that the son reacted by asking “why later? you are my papa?” This, the father said, is the triggering event for him to consider applying for joint custody. However, the son was sandwiched between the parties, and thus did not want to say anything to the SWO which he knew would be make known to the mother and would make her unhappy. He gave the example that after he had disclosed some photos of the son’s smiling faces in the affirmations of this case, there was a change in the son’s attitude when taking photos with him. Thus, he concluded that the son dares not express his true view to the SWO.

31.  I take it that the father would wish to advance that the son’s true wishes is to have his custody granted to both parents jointly. I would reject this straight away for the reasons set out below.

32.  First, this allegation of the son’s not daring to express his true view to the SWO was never mentioned in any of his affirmations. It only came out for the first time during the father’s oral evidence. He offered no explanation why such allegation could not have been made earlier in any of his affirmations.

33.  The allegation was never put to the SWO when she was giving evidence.

34.  I thus have the overall impression that this is something which was made up by the father as he was giving his oral evidence, which should not be believed by the court.

35.  Second, according to the SWO, she asked the son during the one-to-one interview if he wanted both parents to make decisions on 3 major areas (ie education, medical and religion) for him, but the son expressed no view and said that he would let the judge decide. Yet, he went on to give very clear and detailed view on access. In gist, he viewed that the living and access arrangement should be maintained, especially that he would like to spend the 2^nd sunday of each month with the mother. He preferred to spend only ¼ of the Christmas and Easter holidays with the father, since he needed to prepare for examination after those long holidays. For Chinese New Year and summer holidays, he preferred to spend the first half with the father.

36.  The rhetorical question to ask is this: if the son is so close and attached to the father and most importantly, will voice out his view on topic(s) of his concern, why he did not or dared not tell the SWO that he preferred both parents to make major decisions for him, if it was really his true wishes? This cannot be explained away by the father’s allegation that the son did not say so because he did not want to make the mother unhappy. After all, there is no allegation nor any evidence that the son is coached by the mother not to express his true view to the SWO.

37.  Third, while the father alleged (but is already rejected by me) that the son dared not express his actual wishes (that he wanted the parties to have joint custody) in the fear that the mother might not be happy, the opposite may as well be true, ie the son dared not express his true wishes of maintaining the status quo of sole custody rested with the mother, in the fear that the father might not be glad upon learning his true view.

38.  Taking into account the totality of all the evidence of this case, I would say that my overall reading of the son’s view is that he is satisfied with the current arrangement, including custody arrangement, about him, subject to his views on access way forward. His view should be respected and given due weight.

Pressurised to agree sole custody

39.  In this trial, the father spent not an insufficient part of his affirmations and/or his oral evidence on the circumstances why he consented to sole custody be granted to the mother way back in 2018. In a word, he said that the mother knew full well that he cared about the son a lot, and thus she unilaterally brought the son away to stay in her maiden home on 15 August 2018 and did not allow him to see the son unless he agreed to her proposal on custody and ancillary relief matters. For the period from 15 to 25 August 2018, save and except on 22 August 2018 when he went up by himself without an invitation to the home of the maternal grandmother in an attempt to see the son, he was not able to see him, despite he had repeatedly called or messaged the mother.  He then went on to say that once he indicated on 23 August 2018 that he accepted her proposal, she bought movie tickets on 25 August 2018 for him to meet the son on 26 August 2018. Hence, he said that,[6]

“31. …By denying me access to the [son], I was put under tremendous pressure by the [mother] to agree to the terms with respect to the final arrangements of the [son] and ancillary relief as set out in the Consent Summons, including [her] demand for sole custody, care and control of the [son] and reasonable daytime access to [me].”

40.  I would point out from the outset that if it was the true case of the father that he was pressurised or coerced to agree to the Consent Order on custody and access, technically the proper course to take is to file a formal application for setting aside the Consent Order.

41.  That said, however, I do not believe at all that he was pressurised or forced to accept the mother’s proposal and in the circumstances alleged by him.

42.  First and to be exact, the father was not able to see the son from 15 August to 21 August 2018 for about 7 days only. He went, on his own without prior notice to the mother, to the maternal grandmother’s home to see the son on 22 August 2018 at around 8.30 pm.  He tried hard to paint, but incorrectly, a picture in his 2^nd affirmation that he was not allowed by the mother to go into the flat to see the son, and that he could only peep into the flat to see the son, [7] which is starkly contradicted by his 4^th affirmation in which he confessed that he was actually able to enter the flat and met the son. [8]

43.  Pausing here, it must be pointed out that it is not the case that he did not know where the mother had taken the son to. From the WhatsApp messages between the parties, one can see that he already knew that the mother had taken the son to the maternal grandmother’s place on 14 August 2018. He even commented with a smiley emoji like this,

“That’s great (smiley emoji) (from [the son’s] stance)” [9]

44.  As such, there is no room for him to suggest (and thus I do not believe in him) that since he could not see the son, he was worried about him, when in fact he knew full well that the son was staying at the maternal grandmother’s place where he himself said was “great” to the son.

45.  Second, the father was legally represented and/or had the benefit of obtaining legal advice all along and at least since the end of July 2018, which makes it unbelievable that he or his legal representative would turn a deaf ear or a blind eye to any alleged pressure or coercion exerted by the mother.

46.  The inter partes correspondences of the parties show that the mother through her solicitors sent out her proposal on custody and ancillary relief to the father’s solicitors by letters dated 14 and 16 August 2018. [10] Between 14 August and 22 August 2018, the father’s solicitors did not make any reply to these letters, let alone to complain that the mother had not let the father see the son. Then, on 23 August 2018, the father’s solicitors replied to the mother’s and agreed to her proposal of sole custody be given to her with reasonable day access by the father.  It is very telling that nowhere in this letter or other letters from the father’s solicitors before the Consent Order was made did he ever allege or suggest that the mother used the son to coerce him to agree to her proposal, or words to that effect.

47.  The father seems to suggest that he did not wish to escalate the tension between the parties and thus did not resort to his solicitors to resolve the issue of custody and access. This is not accepted by me. I find it illogical and unexplained that while he could or was prepared to express his view on the ancillary relief proposal of the mother in the said letter of 23 August 2018 (ie he did not agree to the timing of lump sum payment suggested by the mother but gave his counter-proposal), he did not express his concern or counter-proposal on custody of the son.

48.  Pausing here, it has also to be pointed out that the parties would appear before the court in a first appointment hearing on 17 September 2018, during which the court would deal with the custody and ancillary relief matters. Parties would have to file and exchange their Form Es 28 days prior to the hearing.[11] In my view, the father could have raised his complaint of the alleged obstruction to access and/or of the alleged pressure exerted by the mother on him in the forthcoming first appointment hearing. It remains sceptical why he chose not to do so, but instead chose to be allegedly “pressurised” by the mother to agree to her proposal and finally sign a consent summons before the first appointment hearing.

49.  As the consent summons on global settlement of custody and ancillary relief was filed on 7 September 2018, neither party filed any Form E in this case.

50.  Third, he deposed in his 2^nd affirmation that at the time of the divorce when they were discussing about possible ancillary relief arrangement, he had made it clear to the mother on a number occasions that he preferred having a joint custody order, but he changed his evidence when he was in the witness box. In the witness box, he confessed that he had not requested for joint custody during the divorce proceedings, and that he brought up the topic of joint custody, for the first time, in or around March 2019.  By a letter dated 25 April 2019, which was just about 1 month after the grant of decree absolute, he formally through his solicitors requested to have joint custody and staying access.

51.  As a matter of fact, one can see from the WhatsApp messages or emails between the parties from 14 August 2018 to 6 September 2018 (they signed the consent summons on global settlement on 7 September 2018) that although the father commented about wanting to see the son on one or two occasions, the major and central theme of his messages/emails was on the ancillary relief arrangement. Nowhere in any of such messages/emails did he ever suggest a joint custody arrangement. 

52.  Fourth, the father tried hard to impress the court that once he consented to the mother’s proposal on 23 August 2018, she arranged the son to go to the movie with him on 26 August 2018.

53.  I have read and considered in details the correspondences between the parties from 15 August (when the mother and the son stayed at the maternal grandmother’s place) to 7 September 2018 (when the consent summons on global settlement of custody and ancillary relief matters was signed by both parties), including their WhatsApp messages, emails and solicitors’ letters. In gist, the mother proposed in her solicitors’ letter dated 16 August 2018 to receive a lump sum of either (i) $8,000,000 on/before 31 December 2018, or (ii) $8,500,000, of which 6,500,000 was to be paid on/before 31 December 2018 and the balance of $2,000,000 was to be paid on/before 30 June 2019. In a word, she preferred to receive $8,000,000 by the end of 2018. However, if the father needed time to raise the funds, she can defer that to mid-2019 but to receive $8,500,000.

54.  The father’s solicitors replied on 23 August 2018 by saying that they “agreed”, but in fact went on to counter-propose the following:[12]

“Agree. Our client will pay a lump sum of $8,000,000 within 14 days of decree nisi in full and final of equal sharing of the family assets.”

55.  Notably, the father had not entered into appearance in the divorce proceedings by 23 August 2018. His solicitors did not file a notice to act and Form 4 (acknowledgement of service) until 29 August 2018. The main suit still had a long way to reach the stage of decree nisi. As a matter of fact, decree nisi of this case was granted on 29 January 2019 (which was after the deadline of 31 December 2018 preferred by the mother).

56.  It does become clear to me that the father had not “agreed” to the mother’s lump sum proposal. It is too simplistic for him to argue that they had not reached an agreement on the timing of the lump sum payment only. Looking at the chronology set out in the preceding paragraph, I would say that they had not reached an agreement on the amount as well as timing of the lump sum payment. This must be correct, because the emails from 23 August to 6 September 2018 between the parties show that they were still discussing about the terms of settlement, with the major focus on the father’s request to vacate the mother’s ancillary relief notices registered against the 4 family properties. He wanted the notices be vacated upon signing the consent summons, whereas the mother insisted that in order to protect the interest of her and the son, the notices would be vacated only upon full payment of the lump sum.

57.  Yet, before an overall agreement on the timing and amount of the lump sum payment, and vacation of the ancillary relief notices were reached, the mother had, on 23 August 2018 and on her own motion, asked the father if he would wish to take the son to the movie on the coming sunday before school term began. In the result, the father was able to meet the son on 26 August 2018 for movie. 

58.  It is thus abundantly obvious that the father’s allegation was not true. I reject his allegation.

59.  Fifth, it was not denied by the mother that she did not take the call or respond to the father’s messages between 15 to 22 August 2018. She explained that she was in a very confusing state at that time.

60.  Her mother (ie the maternal grandmother), who had brain tumour in the past, just learnt about the divorce, as a result of which she had very unstable mood. The mother needed to take care of the weary maternal grandmother. She also had to prepare for the new school term of the son.

61.  Yet at the same time, the mother said that she was distressed by the fact that the divorce case was not progressing smoothly, as the father refused to accept service of the petition which was filed on 5 July 2018. Instead, he tried hard to persuade her to change to another solicitor of his choice, and in fact had taken her to see a Solicitor Lee. He told her to withdraw her petition for divorce, vacate the ancillary relief notices registered by her against all 4 family properties, and file another new petition the next year. He explained to her that the registration of such ancillary relief notice had made him unable to raise any finance for his investment.

62.  Notably, by then, the mother had registered her ancillary relief notice against all the 4 family properties, about which he was not at all happy. For example, on 24 July 2018, he messaged the mother and demanded,[13]

“仲想傾(?) 明天之内出封信，收回個註， 過咗明天， 你自己負責。”

(Transliteration: Issue a letter by tomorrow and vacate the registration of the ancillary relief notices. After tomorrow, you will take full responsibility).

63.  Upon due consideration, I believe in what the mother said of the aforesaid matters that had brought her into a very confusing state. Her explanation was logical and reasonable.

64.  I would add one more observation of myself and it is this. The mother just came to know that the father had a baby with his girl-friend in May 2018. Common sense tells that this must be a very hard strike to her to find out that her husband had yet another extra-marital affair. Even more worse, he had a baby with his girl-friend, and since then, he chose to spend a few nights within a week away from the family to spend time with the girl-friend and the new-born baby. He also chose to attend the birthday dinner of the senior relative of the girl-friend on the sports day of the son. He left home every saturday and sunday after breakfast or lunch and spent the rest of the day with the girl-friend. In such circumstances, it is understandable that the mother was not able to face the father any more around that period of time and wished to spend some lonesome time by herself away from him.

65.  In my view, since the father was not often spending time with the son since May 2018, I do not believe that it would make much difference to or impact on him that he did not see the son for merely 7 days between 15 to 21 August 2018, which in turn weakens his allegation that he was coerced or forced to accept the mother’s proposal on custody or access.

66.  To sum up, I do not accept the father’s allegation that he was pressurised by the mother to accept a sole custody order. It is he himself who did not ask for joint custody at the time of divorce. It now falls upon him a duty to prove that there are material changes of circumstances that would warrant the sole custody order be varied to a joint one (See: C v S (Wardship: GMO) (supra)), which brings me to the following analysis.

Making unilateral decisions for the son

67.  Another major reason put forward by the father for varying the Consent Order from sole to joint custody is that he is prejudiced by unreasonably deprived of the opportunity to play an active role in major decisions about the son, and this constitutes one of the change of circumstances.[14]

68.  He said that during the marriage, although he was busy managing his investment, he made sure that he spent quality time with the son. He was also involved in his school activities and took turns with the mother to accompany the son to attend medical appointments. However, since the divorce, he was not able to be involved in the son’s medical follow-up consultation because he was prevented by the mother from doing so. He said that she used the excuses that her family members (mainly the maternal grandmother) would accompany the son to attend medical consultations and thus asked him not to attend.

69.  He thus has concern that he is being cut off by the mother from being informed of the son’s health condition and that major decisions (ie proposed corrective surgery on his squint) would be made without considering any input from him.  He also has concern that the mother would make major decisions regarding the son’s future education, in particular his secondary schooling, without any input from him.

70.  Firstly, I shall begin my analysis by pointing out that I do not believe that the father was very involved in accompanying the son to attend medical appointments, at least not in 2018 when the girl-friend was pregnant and later gave birth to their son in May 2018.  The so-called involvement about the son’s school and/or medical matters that he could give as an example in his 2^nd affirmation (filed at the time when he took out his summons for variation of custody summons) was merely his participation in the sport’s day of the son for 2016-2017, which was about a year before the petition was filed. [15] He described in the same 2^nd affirmation that the son got to receive speech therapy and physiotherapy up to 2-3 times a week, when in actual fact such therapies were already stopped far back in 2014.

71.  It thus becomes clear to me that the father has exaggerated his involvement in the son’s school and medical matters.

72.  Secondly, it does not occur to me that the father has made any or sufficient effort to be involved in the son’s major matter when the opportunities arose.

73.  For example, despite the mother had told him in July 2020 that the son’s various medical appointments would take place on 3 July 2020, 19 October 2020 and 10 December 2020 respectively, he did not attend the medical appointment on 19 October 2020, nor did he tell her that he would not attend. He tried to explain away his non-participation by saying that the mother had sent him a batch of photographs by WhatsApp messages showing medical appointments of the son, but since he was on the street at that time, he did not save the medical appointment dates in his diary.

74.  I reject his explanation right away. Nowadays, everyone carries a smart phone which has a calendar function.  The father could have easily marked the medical appointment dates when he received the WhatsApp messages from the mother, if these dates meant real importance to him. Also, even if he was really on the street at the material times, he could have marked those dates when he was back to his home, if again he took the medical appointments of the son seriously.  

75.  For another example, it cannot be disputed that the mother had provided the online log-in password of the intranet of the son’s school to him on or about 3 July 2020, which means that he could have easily and freely logged-in the school’s intranet to see the school calendar and important school events, such as school notices or circulars about the online introduction seminars/talks of various secondary schools that were available for selection by the son (as the son would be promoted to secondary school in September 2021).  

76.  However, the plain fact is that the father simply did not bother to read the materials/information available on the school’s intranet; he merely relied on the mother to tell him what was/were important information/events. To be exact, he did not even bother to click into the school notices or circulars to take a closer look of the relevant information about the introductions/briefing of secondary schools, merely because there were so many notices or circulars on the school’s intranet and he could not bear reading all of them. He gave the excuse that it was his habit to place reliance on someone (in this case, the mother) on whom he had trust. Two points can be taken and they are these:

(1)  This excuse does not sit well at all with his own evidence in his 2^nd affirmation which stated that he wished to be involved in making decision for choosing the son’s secondary school;

(2)  It does not make any logical sense for him to say that he had trust on the mother to tell him what was/were important in the school’s intranet on one hand, but on the other hand, advanced a case that the mother would continue to keep him “uninformed about major matters relating to the [son].” [16]

77.  I have not overlooked the explanation offered by the father. He said that although he did not read the school notices or circulars, he had asked his elder brother (who is a school principal who happens to know the school principal of the secondary school that the son is interested in). Yet, he has not conveyed or shared the comment obtained from his elder brother, if any, with the mother. Strictly speaking, it is he, now asking for joint custody, who did not share out important information with the mother.      

78.  Thirdly, according to the SWO, she does not have any concern that the mother would make any major decision for the son without consulting the father. Hence, his worry or concern that he would not be able to participate in the son’s major matters does not begin to take flight.

79.  Lastly but not the least, the major decisions that the father said he was afraid of being excluded were the son’s corrective surgery on his squint and choosing which secondary school.  These major matters were already discussed and agreed by the time of this trial. As the father told in his oral evidence, in or about October/November 2020, both parties and the son were able to discuss and agree that the son should receive the corrective surgery. In January 2021, the parties made a major decision together on which secondary school that the son should choose as his first choice.  It is thus clear that the father’s worries were already solved by the time of the trial, despite that only a sole custody order is place as at the trial, so that the need for variation to joint custody is no longer engaged. 

Relationship with his new family

80.  There is another alleged material change of circumstances put forward by the father, as he says that his new family is now settled down and the son is able to get along well with his new family.

81.  In my view, whether the son can get along well with the father’s new family is a non-pointer on whether sole custody should be varied to a joint one.

82.  The SWO also shared the same view that the son’s relationship with the father’s new wife/new family is not a factor per se in changing the sole custody order.

83.  The son’s relationship with the father’s new family may have a bearing in access arrangement. As a matter of fact, when the Consent Order was made, the father agreed to have reasonable “day” access to the son only. As analysed above, I do not believe that he was pressurised by the mother to accept reasonable “day” access. It was he himself who was hesitant to seek overnight staying access. Here is what he said in his 2^nd affirmation:

“33. As a result, I was reluctant but ultimately did not oppose the suggestion of reasonable daytime access to the [son] proposed by the [mother] as I anticipated that the [son] (who was 9 years old at the relevant time) was still a bit young and might not ready to spend the night away from his mother yet. I also anticipated that I might re-marry any time after the Divorce Proceedings was completed. Hence, I was hesitant to seek overnight staying access as I was not sure yet whether (a) my new resident would be suitable for the [son] and (b) the [son] would get along with my new wife.”

84.  Despite the Consent Order provides for reasonable “day” access only, the mother was agreeable to let the father have staying access to the son once a month in July to November 2019. I accept that such arrangement was stopped in December 2019 because when the mother tried to formalise the arrangement through each other’s solicitors, the father averred that no agreement had been made.

85.  Be that as it may, the access arrangement including staying and long holiday access, was already settled during the CDR.

Fighting for the best interest of the son

86.  The father says that he is fighting on behalf of the son for joint custody in his best interest. He deposed in his 4^th affirmation (translated from Chinese):

“33. Joint custody is not only “something I want” ([the mother] so described in her paragraph 13), but I also believe that this is something the son wants. If I do not fight for joint custody now and give this up, I believe that my son will question me in the future why I did not fight for him.

34. Also, my fight for joint custody is not to deprive [the mother] of her custodian right. I only hope that I can experience the growth of my son together with him and to give the relevant caring. I hope that my caring is reasonable and legal....” (the underlined is my emphasis)

87.  In my view, the above quoted paragraphs of the father’s affirmation reflect that he has mixed up the concept of “custody” and “care”.  

88.  In PD v KWW (supra), Hartmann JA (as he then was) gave a detailed and very useful discussion on the dual concepts of custody, care and control like this:

“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 moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.” (the underlined is my emphasis)

89.  It is noted that there is no application for variation of care and control by the father in this case.

90.  Further, the father should note that when he has access to the son, he is in fact assuming care and control of the son, as Her Lordship explained in PD v KWW (supra) as follows:

“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.” (the underlined is my emphasis)

91.  It cannot be disputed that as a result of the agreement reached in the CDR, the father’s access to the son has been extended, which includes regular as well as long holiday staying access.  This would mean that he would have more extended time to take up the responsibility of the care and control of the son during his access time, without the necessity to vary the sole custody order.

92.  Further, I have already analysed the wish of the son at [30] to [38] in this judgment. I find that the overall evidence suggests that the son is satisfied with the current arrangement about him, including sole custody arrangement.

93.  The father insists that he has never intended to give up the custody of the son, and that it is in the best interest of the son that a joint custody order be made. Yet, what he has done in relation to the payment of the son’s monthly maintenance reveals a different picture. When he was cross-examined in the trial, he conceded that since the consent summons on the ancillary relief matters was signed up to this trial, he had paid the child maintenance on time for 5 months only out of 31 months. He was late for 1 day to as much as 19 days, despite the mother’s repeatedly chasing. When he was queried by the mother’s counsel that late payment of child maintenance was not in the best interest of the son, he became annoyed and instead of answering the question directly, he asked the mother’s counsel to point out what aspect(s) of the son’s living would be affected by his late payment of maintenance.

94.  The court is very surprised to hear such a reply from the father and the stance taken by him in relation to late payment of child maintenance. Importantly, he does not dispute that the mother is a full-time housewife taking care of the son (who has autism spectrum disorder) and that both of them are financially dependent on him. It is just plain and clear that late payment of child maintenance by the father is not in the best interest of the son.

95.  As the court is required to consider all the circumstances of the case holistically in order to make a decision in the best interest of the son, there is another event that equally causes the grave concern of the court. The details can be summarised in the following:

(1)  As said above, there were 4 properties in the family pot (See: [8]). The mother, though a housewife, was the sole mortgagor. The monthly mortgage repayment was made by the father;

(2)  Pursuant to the AR Order, the father was to pay $8,500,000 to the mother, so that he could keep all 4 family properties. The mother’s ½ share in the Tsuen Wan property was to be transferred to him after the grant of the decree absolute (在法庭頒佈絕對離婚命令後);

(3)  It is indisputable that the father was fully aware of the mother’s plan to buy a property for her and the son by using the lump sum payment of $8,500,000. Even more so, he stated in his email dated 25 August 2018 that this was a safer option for the mother and he agreed with this arrangement; [17]

(4)  The decree absolute was granted on 15 March 2019. The mother’s ancillary relief notices registered against all the 4 family properties were vacated on 11 April 2019, which means that the father, by then, was free to deal with any of these 4 properties;

(5)  Between May to September 2019, the mother repeatedly requested the father to make arrangement for transferring the Tsuen Wan property into his sole name. However, he replied that he could not do so, as he was financially not viable to take up the mortgage of the Tsuen Wan property. He suggested that the said transfer be made only upon full repayment of the mortgage (which would take almost 19 years), and in the meantime, he would continue to pay the monthly mortgage repayment. [18] The father also argued that the AR Order did not provide for a time frame to complete the said transfer. He averred that if the mother was mindful as to the timing of the transfer, she should have expressly said so in the consent summons on ancillary relief;

(6)  This triggered the mother to take out a summons on 15 November 2019 seeking to sell the Tsuen Wan property so that she could be released from the liability as the sole mortgagor. She said that she intended to buy a flat for herself and the son to live in. But she had to pay double stamp duty and/or could not obtain another mortgage if she remained as one of the owners and the sole mortgagor of the Tsuen Wan property;

(7)  In his affirmation in opposition, the father advanced a number of reasons to object to the sale of the Tsuen Wan property. One of the reasons proffered by him is that the mother had never mentioned to him of her intention to buy a flat for her and the son to live in at any time prior to the consent summons relating to the AR Order;[19]

(8)  Notably, about 1 month after the mother’s aforesaid summons was filed, the father took out his present application for variation of custody and extended access;

(9)  To complete the picture, the court ordered on 23 December 2019 that the mother’s ½ interest in the Tsuen Wan property shall be transferred to the father on/before 23 June 2020, and in case of default caused by the father, the Tsuen Wan property be sold.

96.  Plainly, the father had lied in his 1^st affirmation when he deposed that the mother had not revealed her intention of buying a property for her and the son prior to the AR Order. This is in stark contradiction to his email dated 25 August 2018.  It is noted that the father is currently living with his present wife and 2 younger sons in a spacious duplex flat in Tseng Kwan O, whereas the mother lives with the son at the maternal grandmother’s place which is merely a home ownership flat in Ma On Shan.

97.  All of the above matters raise the grave concern of this court that the father is viewing things according to his own disguised or distorted logic which is not or would not be accepted by the court to be in the best interest of the son.  It is very obvious that his unreasonable objection to make arrangement for the Tsuen Wan property to be transferred to him in the circumstances stated above shows that he did not bear the best interest of the son in mind at the material times. Worse still, he was prepared to lie in his affirmation when it suits his own interest and/or his own time-table.

98.  I am convicted to say that in such circumstances, if the son’s custody is varied from a sole to a joint one, it may result in doing more bad than good for the son (See: Y v P, CACV 140/2009; ML v YJ, HCMC 13 of 2006).

Conclusion the variation application

99.  Due to the matters set out above, I do not believe that the father was pressurised to accept the sole custody order by consent. Nor do I accept that there is any material change of circumstances within 15 months after the consent order on custody was made to warrant a variation in the sole custody order.

100.  Looking at all the evidence in the round, I conclude that it is not in the son’s best interest to make any changes to the sole custody order. The application should be dismissed.

Costs

(i)   The parties’ position

101.  I have already directed the parties to make their submission on costs in their written closing submission, if necessary.

102.  The father asks that since this trial is on children, there should be no order as costs.However, the mother submits that this is a classic case that the court should exercise her discretion to make a costs order against the father, because he has made false allegation against the mother that he was pressurised by her to accept sole custody. The court should send a message to litigants that the court does not accept such litigation tactics by a parent who attempts to resile from his/her consent by re-engineering a false case against the other parent.

(ii)   Applicable legal principles on costs in children matter

103.  I shall start by stating the general principle or practice that in applications concerning children, the usual order would be “no costs”, as explained by out Court of Appeal in TPL v WYY (Costs: Children) [2015] HKFLR 75 as follows:

“General practice” - no order as to costs

14.1.    One starts with the “proposition” or “general practice” (though not a “principle”: see London Borough of Sutton v Davis (Costs) No.2 [1994] 2 FLR 569 at p570H) that in applications to do with children, the usual order should be no order as to costs. 

14.2.    This approach stems from the aspiration that in these applications the court is seeking to find an arrangement which is best for the children, so that the only “winner” is the children, and neither parent should be regarded as the “winner”/“loser”, although they had mutually exclusive proposals regarding custody and care and control. 

14.3.    The rationale is that when a court considers custody and care and control of children, the proceedings are inquisitorial rather than adversarial.  In the court’s search for the best option available, it does not wish “the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate.  Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them” (LB of Sutton v Davis (No.2) at pp570H -571C). 

14.4.    As the English court of appeal observed in R v R (Costs: Child Case) [1997] 2 FLR 95 at p97, there is a “possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child.”

104.  However, a “no costs” order is the starting point only. The court’s discretion on costs in family cases is very wide (See: HK v BD, CACV 252 of 2009, date of judgment 15/10/2010, per Hartmann JA (as he then was); Gojkovic v Gojkovic [1992] Fam 40).  Its discretion would never be fettered in awarding costs against a party if he/she has been unreasonable or reprehensible in the conduct of the litigation. This was explained by the Court of Appeal in TPL v WYY (supra) as follows:

“14.5. Having said that, this general practice is not a rigid rule. In particular, the court must be careful that this approach to costs should not be abused eg in cases where one parent has more means at his disposal than the other who does not qualify for, or prefers not to use, legal aid. The practice should not provide the opportunity for one parent to wear the other down financially by means of multiple interlocutory skirmishes.

Exceptional circumstances

15.1. Accordingly the courts have said that this approach to costs does not apply in exceptional circumstances, such as where the conduct of one party has been reprehensible, or the party’s stance has been beyond the band of what is reasonable (LB of Sutton v Davis (No.2) at p571B-C, following Havering LBC v S [1986] 1 FLR 489 and Gojkovic v Gojkovic (No. 2) [1992] Fam 40).

15.2. However, in considering whether the exception applies in a particular case, the court should not be too quick to label a parent’s conduct as “unreasonable”. As Hale J (now Baroness Hale SCJ) observed in R v R at p98B,

“The fair point is made that in children cases one must not confuse unreasonableness in relation to the child – because one might say that we are expected to be unreasonable in our attitudes to our children – and unreasonableness in the attitude to the litigation”.

15.3. Merely because a judge, dealing with a case dispassionately and objectively, considers one parent’s proposals hopeless does not justify a costs order against him/her. As Butler-Sloss LJ said in Re G (Costs: Child Case) [1999] 2 FLR 250 at p252G:

“If this judge in this case had found that this father had behaved unreasonably in the litigation and had gone beyond what many fathers do, seeking orders which are hopeless, the point will come at which pursuing a hopeless application becomes unreasonable. But hopelessness and unreasonableness are not necessarily the same thing. Indeed, particularly where there is a litigant in person, a degree of generosity towards a litigant may be more appropriate than to a litigant who is on legal aid generally advised by counsel and solicitors to the extent to which they should continue to litigate”.

105.  That said, the court must be vigilant that even if a costs order is awarded against a parent with reprehensible and/or unreasonable litigation conduct, the costs so ordered should be no more than is necessary to reflect the exceptional circumstances. Again, the Court of Appeal explained in TPL v WYY (supra) like this,  

“15.4. To that I would add this proposition, that even if a court finds a parent’s conduct reprehensible, or his/her conduct in the litigation unreasonable, and the court orders that one party should pay the other’s costs, the costs so ordered should be no more than is necessary to reflect the exceptional circumstances. This is because of the policy consideration in the rationale discussed above, ie that it is in the best interests of the children that there should be no order as to costs.”

(iii)   Discussion

106.  In this present case, one has to always bear in mind that the father’s application is one of variation of a sole custody order made by consent in September 2018. His application was taken out about 15 months after the Consent Order was made, but his request for variation of custody was in fact made to the mother within days after decree absolute was made. He advanced a number of grounds in support for his variation application. Yet, none of his grounds is accepted by the court.  The mother is the overall winner of the trial in all respects.

107.  Pertinently, his major ground that he was pressurised to accept the sole custody proposal of the mother is firmly rejected by the court without any reservation. I am of the convicted view that the overall evidence shows that at all material times, he placed his key focus on the negotiation for settlement of the ancillary relief, and that his main concern was to have the ancillary relief notices that were registered by the mother against the 4 family properties be vacated as soon as possible, rather than on the custody issue of the son. I do not believe that he, being legally represented at all material times, was pressurised by the mother to agree on an order of sole custody.

108.  However, when settlement on custody and ancillary relief was reached in September 2018 and decree absolute granted on 15 March 2019, he tactically re-opened what had been agreed on custody by asking the mother to change the sole custody order to one of joint on/about 25 March 2019, ie just 10 days after decree absolute was granted. This was followed by his solicitors’ letter sent in April 2019 formally demanding joint custody and extended access.

109.  Yet, he did not take out a formal summons on variation of custody and access until 20 December 2019, ie some 8 months after his solicitors’ letter.  In my view, it is far from a mere co-incidence that his summons was taken out just about one month after the mother had filed her summons for an order to sell the Tsuen Wan property in the circumstances set out at [95] of this judgment.

110.  The court takes note that the father had repeatedly expressed his concern and/or dissatisfaction of the registration of the mother’s ancillary relief notices against the 4 family properties. Aside from the WhatsApp message set out at [62], he also sent the following messages to the mother:

On 19 September 2018

“希望你想清楚，你明知每釘我一個月，我損失大約10萬。你釘到尾係可以。

但係，如果你做到咁盡，又損人不利己，如果你係我，會點做呢？下半世的官司只會跟你沒完沒了。逐單官司同你慢慢打，打完一單又一單，到時鄭律師會否免費幫你打？

我叫律師做了兩份Consent俾你,看你想「好嚟好去」，還是「沒完沒了」？” [20]

(transliteration: You know full well that for each month that the ancillary relief notices are registered against my properties at the land registry, I will lose $100,000. If you take it that far and do things detrimental to others but not helpful to yourself, what would you do if you were me? I would spend the rest of my life to deal with you endlessly, and take each piece of litigation slowly, one after one. I have asked the solicitors to prepare 2 sets of consent summonses for you. See if you want to “do it amicably” or “litigate endlessly”).

On 21 September 2018

“我今日已經盡力「製造雙贏」，但你堅持要雙輸。

你以為將來我沒辦法。

今日我開緊腦，你做損人不利己的事。

日後不要問我：為什麼？

記住：日後我做的，已經不是因為錢。是因為你今日的「損人不利己」和「意氣風發」。

你現在以為保障自己，其實正正為自己將來帶來損失。” [21]

(Transliteration: Today, I have tried my best to create a win-win situation, but you insist to have a lose-lose one. You think I can do nothing about it in the future. You do things that is detrimental to others but not helpful to yourself. Don’t ask me “why” in the future. Remember: what I will do in the future is no longer because of money. It’s because today you do things “detrimental to others but not helpful to yourself” and you are “flamboyant”).

On 26 September 2018

“你現在「損人不利己」，我也不會死掉，只會令我下半世，做盡我所有資源，跟你沒完沒了。

你繼續聽阿鄭講，盡量激嬲我。

阿鄭沒所謂，因為激嬲我的後果是你嘗，不是他嘗。聽佢講，是你傻。” [22]

(Transliteration: You now do things detrimental to others but not helpful to yourself. I won’t die as a result, but will spend the rest of my life and use all of my resources to deal with you endlessly. You may continue to follow the advice of your solicitor to try best to make me angry, the result of which will be borne by you, but not by your solicitor. It is stupid of you to listen to your solicitor).

111.  If this chronology and the content of the aforesaid messages are viewed properly and in their totality, I am bound to say that it is highly suspicious that the father has a hidden agenda in this application, namely to punish the mother for her refusal to vacate the ancillary relief notices before she received the lump sum payment from him. However, in my view, the mother was perfectly entitled to safeguard the financial position of herself and the son in such circumstances. It is reiterated that even according to the father, she was (and still is) a housewife fully dependent on him.

112.  While the court acknowledges that children matter may be evolving as the child grows, the court should detest any application that is made tactically but without any merits, in particularly when the variation application is taken out within such a short period of time. Such litigation conduct is so reprehensible and/or unreasonable that should be deplored by the court by awarding costs against the father. The mother should not be made to exhaust her own funds (which she intends to utilize to buy a flat for her and the son) in this tactical but unmeritorious piece of litigation of the father.

113.  That said, I have to remind myself that the costs so ordered should be no more than is necessary to reflect the exceptional circumstances. Thus, I should broadly take the CDR hearing as the watershed date. The parties have already agreed that there be no order as to costs in relation to the CDR. I shall thus order that the father shall bear the mother’s costs since and inclusive of 17 October 2020 onwards, including this trial and all costs reserved orders made on and from 17 October 2020, to be taxed if not agreed. I certify the attendance of counsel.

Order

114.  Due to the matters set out above, I shall make the following order:

(1)  The father’s application for variation of sole custody to joint custody in his amended summons be dismissed;

(2)  The father shall bear the mother’s costs since and inclusive of 17 October 2020 onwards, including this trial from 17 October 2020 (ie the day immediately after the CDR hearing) onwards, including this trial and all costs reserved orders made on and from 17 October 2020, to be taxed if not agreed, with certificate for counsel.

115.  I shall hold the mother to the Undertakings that she offered in the CDR, which should be included in the preamble of this court order.

116.   This order shall be drawn up by the father’s legal team.

[1] According to an assessment done by the educational psychologist of Heep Hong Society date 8 April 2016, the son was found to have high average range of intellectual functioning, but significant difficulties in social communication, emotional control and inflexible behavioural pattern. The clinical presentation is consistent with that of autism spectrum disorder.

[2] Social investigation report [26/§7].

[3] The particulars of behaviour include but not limits to the father revealing to the wife that he already had a girl-friend and their son was born in May 2018; and since their son was born, he was spending a few nights each week with his girl-friend but lesser time with the family.

[4]The factors in the “welfare checklist” are:

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

(b)  his physical, emotional and educational needs;

(c)  the nature of his relationship with each parents and other persons;

(d)  the likely effect on him of any change in his circumstances;

(e)  his age, sex, background and any characteristics of his which the court considers relevant;

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

(g)  any harm he has suffered or is at risk of suffering;

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

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

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

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

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

[5] [86/§33].

[6] Father’s 2^nd affirmation [55/§31].

[7] [53/§23].

[8] [80/§14].

[9] [146].

[10] [94]-[97] and [160]-[162].

[11] PD 15.11.

[12] [165].

[13] [92].

[14] [62/§48].

[15] [49/§12].

[16] [61/§47].

[17] [221].

[18] The mortgage of the Tsuen Wan property was taken out on 26/3/2015 in the sum of $3.4 million. As at 31 March 2019, the outstanding mortgage was about $3,080,442.34. The monthly repayment was about $13,438 to $13,637 per month, which meant that it would take almost 19 years to fully pay off the mortgage.

[19] Father’s 1^st affirmation dated 18/12/2019 at §8.

[20] [99].

[21] [100].

[22] [101].