PSD v. TFM

FCMC 12549 /2022

[2025] HKFC 36

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12549 OF 2022

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Judgment
(Custody Care & Control & Access)

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Introduction

1.  This is a trial on custody matters regarding the two children of the Family, namely a girl born in December 2016, aged 7 at the time of trial (“D”); and a boy born in March 2019, aged 5 at the time of trial. (“S”) (Collectively “the Children”)

2.  Both parties are legally represented at trial, with the Petitioner Father (“the Father”) represented by Mr. Swainston of Messrs. Swainston, and the Respondent Mother (“the Mother”) represented by Counsel Mr. Chan instructed by Messrs. Kevin Ng & Co., under the assignment of the Director of Legal Aid.

3.  Both parties filed their respective open proposals before trial and confirmed during trial that in terms of practical arrangements, the difference between the parties are quite small, in the sense that each of their proposals offer a substantial chunk of time to the other parent under a weekly routine. On the other hand, it is described to me by both parties as well as the Social Investigating Officer (“SIO”) that this is a high-conflict case, thus no agreement can be made.

4.  Upon confirming their stance and throughout trial, I have encouraged the parties on repeated occasions to focus on the practical aspect of the Children arrangements, and to avoid slipping into arguments on labelling for the sake of it. I have also informed the parties throughout that the focus of the custody trial is to work out the best arrangement for the Children, bearing in mind their best interests as paramount consideration, in going forward. It is not a battlefield for the parties to dig up historical singular incidents, each asserting his/her rights and pin-pointing wrongdoings of the other, unless they are relevant to the future arrangements of the Children. If any single incident bears such importance in requiring the Court for a specific fact-finding exercise, the party alleging such would have been seeking for a specific-issue hearing prior to trial. Not only no such applications were ever made by either party in these proceedings, but in my view, for the reasons I set out below in this Judgment, these incidents carry little relevance to the real issues before the parties; rather and regrettably, they serve to highlight the fact that the Children were constantly being exposed to parental conflicts during marriage, be it physical and/or verbal. They have been and still are trapped in the middle of parental conflicts; and by my observation the Children have become somewhat perplexed in the course of these proceedings including when facing professionals.

5.  It is a pity that the parties elected to litigate the matter in the way they did despite my comments shared to them in the course of trial. On the other hand, from the evidence below, it is indisputable that the Children love their parents and vice versa, in their own ways. This, being the silver lining in the present case, must be preserved at all costs. Thus, this Judgment shall focus on an arrangement that can maximise the opportunity for the Children to walk out of their current misery, be able to freely express their love to the parents, as well as receiving love from them without fear, in going forward.

Relevant Background

6.  The Father is a Caucasian British Australian dual national[2]. At the time of trial he is 63 years old. He has lived in the United Kingdom, Switzerland, the Philippines and Japan before settling down in Hong Kong in around 1995 and has remained in Hong Kong since. He has a career as a free-lance luthier, mainly specialising on repairment of guitars, as well as other string instruments. He has clients all over the world and he regularly works from home, a rented stand-alone abode in an isolated and restricted area in Lantau Island, with about 300 sq. ft indoor area and lots of outdoor space including his guitar workshop. He moved into this abode in about 1998 but due to a landlord-tenant dispute, he was no longer asked for and he no longer paid rent since 2005 up till present and ongoing. The abode later became the former matrimonial home where the parties lived together since marriage. This is also the only matrimonial home the Children had lived all their lives since their respective births in 2016 and 2019, until the marriage turned sour. (“the FMH”)

7.  The Mother was born and brought up in Hong Kong in a local family. She is 39 years old at the time of trial. She has been working as a hairstylist since around 2005 and has been in stable employment under a salon in Central since 2015. She used to work five days a week, 11am to 7pm, and that was reduced to three days (Thursdays Fridays and Saturdays) per week since D was born in 2016. She has kept this pattern of work for almost 10 years and ongoing.

8.  The parties met in 2013 and married in November 2014. Prior to marriage, the Mother had been living with her family in the Maternal Family Home (“MFH”), a stand-alone single storey abode with a courtyard situated at a corner inside an industrial site. This said site belong to a government approved specialist contractor for public works, under the category of structural steelwork. Any visitor to the MFH would have to first enter the industrial site. The indoor area of the MFH is about 800 sq. ft. with the Mother’s mother, Mother’s second sister and her son living therein at present.

9.  Since around April 2021 the Mother rented an abode with address kept confidential to the Father at all material times. In the beginning she lived partly at this rented abode by herself on days she had to work, i.e. Thursdays Fridays and Saturdays, and returning to the FMH on remaining days. This lasted until an incident happened between the parties at the FMH on 13 November 2022 resulting in the reporting to police and the Mother taking the Children to a refuge centre. The Mother and the Children stayed at the refuge centre for about 5 months, where she had kept paying rent for her rented abode at the same time. Upon discharge from the refuge centre, the Mother never returned to live at the FMH and has been living at the same rented abode up till present. This rented abode has an indoor area of about 320 sq. ft.. Since the commencement of these proceedings, the Mother has sought leave, and the same being granted from the Court for non-disclosure of her residential address[3]. (“M’s Residence”)

10.  During the time the Mother and the Children were at the refuge centre, the Mother arranged the Children to resume schooling at their respective schools in Tai O and Pui O in around mid-December 2022[4]. She also resumed work and since around January 2023, she entrusted her family members to provide assistance to childcare on Saturdays when she had to work and when the Children had no school. On the other hand, the Father was initially on police bail for the incident on 13 November 2022 until around February 2023 where he was released from bail with no further investigation necessary. In the beginning the Father was deprived of seeing the Children and this has led him to file for Petition on 22 December 2022[5] as well as taking out an ex-parte application on 23 December 2022 seeking for the Children to return to the care of the Father at the FMH.[6]

11.  The Court heard the said application on an inter-partes basis on 6 January 2023 and made no order on access pending a Social Investigation Report (“SIR”), with the court hearing adjourned to April 2023.[7] Despite that, through agreement of the parties and assistance of various professionals, the Children and the Father had a total of ten times of access before the adjourned hearing in April 2023. The SIO has listed out in detail of the location and nature of these access in his report and I shall not repeat here.[8] The access had been carefully arranged in a progressive manner in terms of location and length, with the later day access taken place at the FMH and nearby areas lasting for some 10 hours.

12.  The Court heard the matter again in April 2023, and with the 1^st SIR available, the parties were able to agree on a set of interim shared care arrangement on a roughly 50:50 basis, namely the Children to be under the Mother’s care on Monday to Wednesday, the Father’s care on Thursday to Saturday, with Sunday rotating. The parties further volunteered some undertakings on their respective parts including the aspects of co-parenting, not to enter each other’s home, non-removal, as well as refrain from denigrating comments to and in front of the Children.[9]

Interim Arrangement

13.  The interim arrangement by consent commenced on 22 April 2023 when the Children were discharged from the refuge centre to be under the care of the Father, and thereafter following the schedule the parties agreed as evidenced in the Court Order. As reported in the SIR, while the parties each has their own complaints against each other on, for instance, childcare ability / punctuality issues, the execution of the interim arrangement was smooth in general and that the parties are able to apply flexibilities to some Sundays due to prevailing circumstances of the Children.[10]

14.  Comments from the Children’s respective schools are positive since the commencement of the interim arrangement. The school social worker of D commented that D’s performance at school was stable throughout the transition and had good emotion at school; the school social worker of S saw S to be more active since the interim arrangement was in place.

15.  The parties attended Court on 28 September 2023 and without any resolution, the custody matter was fixed for trial initially on 27 and 28 December 2023. By this time, both parties were agreeable to joint custody, with each of them seeking sole care and control with reasonable access to the other party including staying access.

16.  The trial fixed on December 2023 was eventually vacated and refixed to this trial in May 2024, by reason of suspected child sexual maltreatment incidents concerning D, reported by the Father, with the alleged perpetrator being the maternal eldest uncle-in-law (i.e. the husband of the Mother’s eldest sister) (“Uncle G”). The Father reported firstly on 1 October 2023, on the strength of an audio segment recording between the Father and D recorded on 20 August 2023, suggesting Uncle G touched D inappropriately. The Father reported to the police and the Social Welfare Department on 1 October 2023. The matter was followed up by staff of NAACTCISC[11] (“NAAC”) and it was concluded that there was no evidence or indication of any suspected maltreatment. Then, on 14 December 2023, the Father further reported, on the strength of two audio segments recordings between the Father and D, that D complained being touched inappropriately by Uncle G on 10 December 2023. This was reported to the police on 15 December 2023 and led to a Multi-disciplinary Case Conference (“MDCC”) held on 17 January 2024. The MDCC concluded that the incident was not considered as a child sexual maltreatment case.

17.  By reason of the aforesaid, by the time this case comes before me in May 2024 for this trial, the interim arrangement had been in place for some 13 months, and that the respective open proposals of the parties all amount to relatively minor changes to the interim arrangement.

18.  On the other hand, both parties have respectively retracted from agreeing to joint custody, each seeking sole custody care and control of the Children.

Applicable Legal Principles

19.  The parties are not in dispute regarding the law on custody matters. Mr. Chan has comprehensively presented the relevant principles in his Opening, and the same are adopted by Mr. Swainston in his Closing. I shall gratefully adopt them as I consider appropriate and set out below.

20.  The starting point is that, in any proceedings for divorce, etc., the Court may make such orders as it thinks fit for “the custody and education” of any child: s. 19 of the Matrimonial Proceedings and Property Ordinance (Cap. 192).

21.  The discretion given by section 19 is wide, but not unfettered. The Court is bound to look at the general principles as set in section 3(1)(a) of the Guardianship of Minors Ordinance (Cap. 13), which provides that the welfare of the minor be the first and paramount consideration: s. 48C, Matrimonial Causes Ordinance (Cap. 179), as well as give due consideration to (i) the wishes of the child (having regard to child’s age and understanding, and to the circumstances, and (ii) any material information including the content of a social welfare report.

22.  The Court, in practice, will also have regard to the Welfare Checklist. The Court will only consider those factors in the welfare checklist in so far as they are relevant to this case, and need not consider each item from the checklist in detail: H v N [2012] 5 HKLRD 498 (at §29-31), approved by ZJ v XWN [2018] 3 HKLRD 644 (at §25).

23.  The Court may grant a combination of custody orders. For example, joint custody and joint care and control, sole custody to one parent and shared care (as submitted by the Mother), as well as joint custody and shared care. It is also possible to make an order for joint custody and to be silent on care and control/access/shared care: SKP v. Y, ITT (FCMC17772/2011, unrep., 12/11/2012) (at §19)

24.  The meaning of sole/joint custody, care and control has been set out in the oft-quoted judgment of PD v KWW (Child: Joint Custody) [2010] HKFLR 184 per Hartmann JA (as he then was) (at §§26-57).

25.  As the His Honour Judge C.K. Chan (as the Principal Family Judge then was) helpfully summarised in CTK v CPK [2015] HKFC 87 (at §19):

“[19] The following principles can be enunciated from the above passage:

(1) A parent having custodial rights has the authority to make decisions which will have real consequence in safeguarding and promoting a child's health, development and general welfare.

(2) On the other hand, the rights to care and control concern with decisions which 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.

(3) A custodial parent is not given an absolute and independent authority to act without further reference to the non-custodial parent.

(4) A non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child's upbringing. Although the non-custodial parent does not have a right of veto, his right is not merely a right to be informed, but to confer on the matter in issue, to give advice and to have that advice considered.

(5) In the event of disagreement, the custodial parent will have the authority to make the final decision, but subject to the non-custodial parent's right to apply to the court for further directions if he deems it necessary for the protection of the child's best interests.

(6) When a parent is given access to the child, he/she is effectively given shared care and control of that child.”

26.  While orders for joint custody are often preferable, there are certainly cases where it is not the appropriate order and where an order for sole custody should be made in the interests of the children.

27.  In SEB v ZX (Custody) [2007] HKFLR 165, HHJ Melloy (as she then was) said:

“Joint custody means that the parents should be able to make the major decisions concerning their children's life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively.”

28.  In ML v XL [2008] HKFLR 88, Recorder Rimsky Yuen SC ordered that a sole custody order was appropriate in a case where the proceedings were stated to be acrimonious and the evidence showed that there was a lack of trust from both sides, with all communication happening between lawyers. The principle therein is distilled in CTK v CPK (supra):

“24. Therefore, it is accepted that when there are genuine and irreconcilable difficulties in the communication and co-operation of the parents, pointing to the fact that a joint custody order is unlikely to be workable, the court will not grant such an order simply for the encouragement of the parents' co-operation or to recognise their continued roles in the child's future development because such an attempt will not be in the best interests of the child.”

29.  In S, V v M, S [2021] 1 HKLRD 210 (at §17), HHJ Melloy summarised the legal principles of shared care:

“17. The parties have both produced a number of different cases for the court's consideration including the Court of Appeal's decision in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191. Reference should also be made to a case produced by Ms Anita Yip S.C. for the mother, namely PJM v GPN FCMC 4999 of 2014 [2018] HKFC 65 (2 May 2018). In that case I made an order for shared care, and in doing so commented as follows:

13. Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children's Arrangements) [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control 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.

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/ren’s 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...”

30.  With respect, I agree these are the legal principles applicable to this present case and I shall be guided by the same in my analysis below.

Issues

31.  In my view, and bearing in mind the best interest principles, there are two real issues to be resolved :

(i)  What is the best practical arrangement for the Children in going forward? and

(ii)  Once (i) above has been determined, what labelling would be most suitable for the said arrangement?

32.  I shall focus on evidence presented at trial in relation to the issues at hand.

Open Offers

33.  Both parties have filed open proposals prior to the trial. I shall not set them out here[12]. In short they respectively ask for sole custody care and control, and offer staying access to the other party with up to three days per week in a chunk, i.e. almost akin to a 50:50 care arrangement. On the other hand, they have respectively sought for undertakings from the other parent in their proposals. I have already explained to the parties at trial that one’s proposal would not contain undertakings from the other parent by the obvious reason that undertakings can only be volunteered by a party and cannot be ordered. Both parties have subsequently retracted from ‘seeking undertakings’ in this respect nor did they volunteered undertakings as suggested by the other.

Evidence at trial

34.  The Social Investigation officer Mr. Lau gave evidence, followed by the Father, the Mother, and the Mother’s second eldest sister.

The Social Investigation Officer (“SIO”)

35.  Perhaps due to the rich background of this case, the SIO has prepared a total of 4 comprehensive SIRs to assist this Court, amounting to some 150 pages of contents altogether. He adopted his reports as his evidence and by and large maintained his views therein. His oral testimony took up the first two days of trial. This is a SIO who has 37 years of experience as a social worker and 14 years of experience on custody care and control and access related cases. I find his evidence helpful overall.

14 February 2021 Incident

36.  He was asked in detail of an incident which happened on 14 February 2021, where the parties commonly referred to as the Chinese New Year Incident in their evidence. (“CNY Incident”) In short there was a gathering at the MFH. The Children at one point were playing at an aluminium stepladder and the Father saw D stepped on the first step of the ladder. The ladder was taken out and used for fixing something at a height during the days around the CNY Incident and was not meant for children’s play. The ground where this ladder was situated was laid with irregular shape tiles and some edges were sharp. It was a hard surface which would potentially cause danger if anyone fell from the ladder.

37.  The Father took great exception to what he saw and reacted angrily and ended up using quite inappropriate languages against a number of family members of the Mother, all in the presence of the Children. The Father views that the parties’ communication deteriorated since the CNY Incident, even when he later gave evidence at this trial and asked about this incident, he maintained that despite the high emotional state he was in, he meant what he said to others, and admitted he is still very angry at the CNY Incident and when asked what he could do now to overcome communication difficulties, he said he was still open to receive an apology over the CNY Incident, and that the damage in communication was not caused by him. He had also since the CNY Incident disapproved all of the maternal family members, and having his stance repeatedly made known, directly or indirectly, to the Children.

Safety of MFH

38.  The SIO was then asked about the safety of the MFH by reason of its unusual location inside an industrial unit. While the SIO admitted it is not ordinary to have a residence at an industrial unit, he considered the MFH to be at a corner of the industrial unit and self-contained, with a large metal gate dividing the MFH and the industrial area. The SIO could not see any danger circumstances inside the residential area. The maternal family has been living there for years and that the cousin of the Children, Yin Yin, lives there and no accidents were reported to have happened on him. There were guard dogs and there was an incident where one guard dog bit the Father on one occasion but that same dog had since passed away. Considered as a whole, the SIO views the MFH is safe to visit for the Children. The SIO had actually paid surprised visits to the MFH in order to observe the surroundings more impartially and even on those occasions he did not see anything causing concerns.

Primary Carer

39.  The SIO disagreed that either party can be described as a primary carer, since both perform childcare duties to the Children. He prefers to describe both of them as main carers, and this applies even to the period between April 2021 and November 2022 when the Father lived continuously with the Children at the FMH whereas the Mother lived out at M’s Residence for three days during that period.

Refuge Centre

40.  The SIO stated that the NAAC was already then providing integrated service to the family prior to the incident on 13 November 2022 and the NAAC staff helped to work out a discharge plan from the refuge centre by helping the parties communicate and to formulate options.

D admitted to Hospital

41.  On 23 March 2023 when the Children were still at the refuge centre with the Mother, D got fever and vomiting and was brought by the Mother to hospital. The Mother took the initiative to inform the Father at once, and arranged S to be looked after by her family members at the MFH while the Mother stayed with D at the hospital. The Father disagreed that S be placed at the MFH but should be under his care instead, and ended up calling his lawyers, the police as well as the SIO repeatedly on the same day, asserting his parental right having precedence over maternal family members over S. The police investigated and did not accede to the Father’s request. Then on the next day, 24 March 2023, D was medically fit for discharge and the Father took D out of the hospital without prior agreement nor consent from the Mother. The Father then requested the Mother to bring S to meet him in order for him to release D. The Father spent about two hours with D at a playground before the Mother then brought S to the Father. The SIO described this as an ‘exchange’. The SIO stressed that, by using this incident as an example, where he has no concerns on the Father’s day-to-day care ability of the Children, it is the Father’s way of handling situations that escalated disputes and this intensifies conflict.

Uncle G

42.  The SIO having listened to all the relevant audio clips considered that the Father was genuinely trying to ascertain from D what had happened, as opposed to the Mother’s belief that the Father was pressuring D to say certain things. The SIO felt perplexed about the truthfulness of what D said, especially concerning the December 2023 complaint. The SIO had the chance to meet D on 11 December 2023, one day after the alleged incident, and D did not say anything to the SIO in this regard and the SIO did not observe D having anything out of the ordinary, which added to his surprise that D did not tell the SIO about the incident on 10 December 2023 if it did happen. The SIO respects the decision of the MDCC.

Views of the Children

43.  The SIO added that there were occasions when the Children refused to speak to the SIO, in the course of preparing his second and third reports. The SIO would not insist and wanted the Children to speak freely if and when they wanted to.

Handover Issues

44.  In his testimony, the SIO shared his observation that the Children in general have no problem when the handover takes place at school, or when the Mother sends the Children to the FMH. Issue of lateness arose when the Children had to leave the FMH after spending time with the Father, with the Father claiming the Children did not want to leave, did not want to go to the MFH, and/or did not want to return to the Mother. This would often be on a Sunday morning under the interim arrangement.

45.  The SIO showed deep consideration on this issue, when he recommended in his third report that the handover to take place on an alternate week basis either on a Saturday night or Monday morning, to avoid conflict on handover issues on a Sunday. The SIO had gone at length to check that in year 2025, there are only two Monday public holidays. He recognises the issue may still persist on Saturday evenings.

46.  This, amongst other considerations, caused the SIO to come up with a different recommendation in his last report where he recommended the Children be under the care of the Mother from Monday to Friday, and from after school Friday to school on Monday be under the care of the Father, in addition to the Mother having one entire weekend on the last week of each month and then the Father could have extra two days thereafter. This will roughly achieve a 40:60 ratio in terms of time spent with the Father and the Mother.

47.  The SIO’s latest proposal was based on the understanding that the Mother’s work schedule could be flexible and that when the parties are not available, by work or otherwise, they would enlist assistance from others, namely maternal family for the Mother and friends or neighbours for the Father. When it was put to the SIO by Mr. Chan that the Mother’s work schedule is not flexible, he acknowledged the same but maintained his recommendation, in believing that resolving the issue of handover is more important and that if that is not resolved, it would only continue to frustrate the parties in going forward.

Custody Labelling

48.  The SIO testified that:

(i)  Their communication is poor but not to the extent of having no communication;

(ii)  They are in agreement on schooling of the Children;

(iii)  They are in agreement in the ECAs of the Children;

(iv)  They could make joint medical decisions including which doctors to attend to;

(v)  They disagree on whether D should attend dental treatment;

(vi)  They disagree on the seriousness of D’s pimple at her back;

(vii)  They agree (albeit through trial) for D to receive Clinical Psychologist treatment;

(viii)  They disagree on S receiving speech therapy treatment;

(ix)  They have been carrying out co-parenting to a certain extent, for instance when D was hospitalised in March 2023 the Mother initiated to tell the Father despite still in refuge centre;

(x)  On the other hand, the Father on his own initiative tells the Mother the Children had teeth problem;

(xi)  On the pimple incident, although the Mother suspected the Father’s motive in bringing D to see doctor that day, the Father at least informed the Mother his concern that the pimple could be cancerous; and

(xii)  They disagree but did not block off each other’s communication.

49.  When asked sole or joint custody label would be suitable, the SIO stated that in this case he will maintain joint custody. He is pessimistic in the sense that vesting sole custody to either parent will only further deepen their disagreements and in turn leads to further litigation.

50.  The SIO does not recommend calling of a progress report, even though both parties have made it clear to the Court that they want and agree for a progress report to be called for. The SIO worries that the Father might say the Children would not want to see him, in addition to the fact that the Children would still be under investigation by a SIO (be it this SIO or another person) and they may feel trapped in the middle.

51.  On co-parenting, the SIO observed that notwithstanding the parties had been under the service of KIDS first, there are no significant changes regarding their communication and/or insightfulness. A parental co-ordinator can be considered but a suitable choice would be crucial.

The Father

52.  In the oral testimony of the Father he makes no secret that he thinks the SIO is biased and incompetent. He extends his view to say that he finds ‘a lack of professionalism across the board with local services all the way’. He holds the same view on speech therapy services offered to S.

53.  When asked about NAAC, the Father find it inapt, viewing the staff to be ‘professionals but does not mean you are any good at what you do’.

54.  When asked about the MDCC recommendations, his response is that they are ‘basically about brainwashing my daughter, by a bunch of totally unprofessional people’.

55.  When asked about Clinical Psychologist service provided by the Social Welfare Department, he responded that ‘the complete bundling of the Social Welfare Department in the first place leads me to believe it will do more damage than good’.

56.  When asked about his heated exchange with the Society for the Deaf, he said ‘I wouldn’t say it is heated. I have low tolerance for incompetence, I put it in certain terms but I did not raise my voice’.

57.  When asked about his rage issue, the Father said ‘I wouldn’t say I have a rage issue. I would say a short fuse. Since having children it helped me a great deal. Counting ten’. There is no dispute the Father receives private counselling from a Mr. Gee on a week basis. On his own account, it began in around 2016 under couple counselling but stopped in the same year. Since 2022 till now and ongoing he attends a private session every week, to work on, inter alia, his short fuse issue.

58.  When asked of his character being one of dominating, and using the Airtag incident as an example where the Father placed an Airtag (an electronic tracking device) inside of the shoe of the Mother without the latter’s knowledge, he admitted to having done the same and explained ‘I had a right to know where my wife is’. When further asked if he would exert his rights on the Children in this respect, placing an Airtag onto them, his response was if it was for security reason then yes, and he would discuss with them first. When asked what if the Children refused, he said ‘depends how old they are, if they are 18, but if they are still children, vulnerable, then I think it is a good idea’.

59.  There were some screenshot captures of messages and video clips exhibited by the Mother in these proceedings concerning the allegation that the Father has been expressing racist and/or insulting comments and/or behaviours[13]. Two video clips were played in Court under the Father’s cross-examination, and with the conversation set out in the Mother’s affirmation, I shall repeat them here: [14]

“(3) a video clip taken by me on around 12 December 2021, with the children also still inside the car, wherein the Petitioner stated that “If I see a Chinese Judge in the Court, I can ask them to recuse themselves … let them watch this video … it is not acceptable for anyone of Chinese race to judge me, or how I bring up my children because they are unfit to do so … all these low-life scum … you are a piece of s**t, you deserve to be called that.”

(4) a video also taken by me on around 31 October 2022, with the children also inside the car, wherein the Petitioner state that “Chinese can’t drive, it is a fact. Chinese can’t do anything. So if there is a Chinese judge before me in Court, I shall ask them to recuse themselves. Because they will not give me a fair hearing. Because you are a corrupt and dishonest people.”

60.  When being asked in Court about these video clips, the Father responded that ‘I don’t deny what I said in the recording’ and when asked if it is still his view, his response was ‘I say that to any judge’, ‘I still have some suspicion of the system here, by way of this whole scenario is dealt with. I feel being discriminated, I have been warned about this, since 2019, foreigners are not being fairly treated.’.

61.  As to the fact that the Children were both in the car at the time he made these statements in a scolding voice, the Father admitted that the Children were crying because the parents were arguing during one clip, while for the other clip the Father believed the Children could not hear because he was not shouting.

62.  When asked about the lateness of the Sunday morning handovers, the Father said he tried to tell them to get ready an hour before, but five minutes before they had to leave, they would start, for example, building a lego, and made it difficult for him to make sure they were on time. When further asked what he could do when the Children are not listening, the Father said ‘I told them, message is if they want to stay with me, and I am fighting for this, if they don’t want to go back on time, it look bad on me’. The Father also said this handover is always stressful, and admitting to having a short temper, that he does not want to lose that short fuse. He described on the handover car journey that the Children would ‘sit silent at the back of the car, the vibe was bad. If this was the old me, I would have lost my temper. It’s for their sake’.

63.  The Father stresses that with the issues on handover, he cannot guarantee it can be done on time, but stressed that he had in any event never been late for more than an hour.

64.  When asked about his views on the Mother and the maternal family, he states that ‘I have very little trust on the Mother and definitely the maternal family, everyone, no exception. There is no trust. Now with [Uncle G] situation it compounds my worries. Industrial accidents. Laxity in safety’.

65.  When asked on one of the Mother’s proposals to handover the Children on Saturday night, the Father believes it to be wholly impractical, with 6pm more acceptable but then ‘I don’t agree with the proposal. I won’t negotiate. 6pm would be suitable, but on a Sunday’.

66.  In re-examination, the Father stated that he believes the Children ought to be given the broadest opportunities, and that by sending the Children to local school shows he is not racist.

Letter allegedly written by D to Judge

67.  I think this is an appropriate juncture to mention an issue that arose in the middle of evidence at trial.

68.  The Father’s evidence completed on Day 3 of trial, namely on 13 May 2024. The trial went part heard and when it resumed on Day 4 on 20 May 2024, Mr. Swainston sought leave to produce a letter, purportedly written by D, dated 12 May 2024, addressed to the Judge.

69.  It is clear that this was not raised in the Father’s evidence at all. I was told that it was a hand-written one-page letter. While I had no knowledge of the contents, I have requested the parties to discuss amongst themselves as to how they wish to deal with this. If the content is so concerning and serious that it warrants immediately follow-up then they must let me know; I have otherwise indicated that even if this Court accepts this letter and reads it, but without knowing the surrounding circumstances of how it came about, it is most difficult for me to attach any weight to it, leaving aside procedural issues. The parties jointly informed me that the letter had no extreme or seriously concerning messages. On that basis, I allowed the trial to continue and asked the parties to jointly come up with some proposals as to how they want to deal with this for further discussion.

70.  This issue was raised again in the middle of the Mother’s testimony, at the end of Day 5 on 21 May 2024. After some discussion, Mr. Swainston opted against any application for filing of any evidence to explain the circumstances giving rise to this piece of paper, but merely seeking to submit the letter to the Court. Mr. Chan agreed with this approach and on that basis, the letter was submitted and marked as exhibit D. I noted that the Mother was at that time in the witness box and did not have a chance to talk to her lawyers on this issue, thus I allowed her to be recalled if necessary, which was what had happened in the end. The Mother having read exhibit D testified that she can recognise it is mostly D’s written work but she had never seen D writing such a lengthy passage before, with some hand-writing characters not resembling D. the Mother spotted a lot of errors on the upper and lower case letters, which is very unusual for D, given she often has good marks in English dictation under her supervision. D would not address Uncle G as ‘G’ but either ‘Uncle G’ or ‘Jeung Jeung’ (uncle in Chinese). The Mother concluded that while she accepted most of the letter resembled D’s hand-writing, she believed D was under pressure and that some words were not written by D.

71.  In the Father’s Closing submission, Mr. Swainston conceded that D’s letter in the circumstances carries minimal weight. I have no hesitation here to state my findings that by the above, the content of the letter carries no weight to my consideration on this matter. The only point of relevance I will consider, as a whole, is whether this is yet another piece of evidence reinforcing the SIO’s observation that the Children are continuously being trapped in the middle between parental conflicts.

The Mother

72.  The Mother explained that she now wants sole custody since she finds many of the Father’s views to be prejudiced and said ‘I find it very difficult to co-operate with him, I find it difficult to provide things to my children that meets the social standard. Language of TV played, clothes to wear, these are minor, developmental needs are important, I find it hard to co-operate.’

73.  She understands that even with sole custody she still needs to discuss and consult with the Father on significant matters. She believes she would do so but if sole custody is granted to the Father he would not do the same.

74.  There were more video and audio clips played in wanting to demonstrate various parental conflicts, often involving inappropriate verbal and/or violent physical exchanges, and often in front of the Children. I shall not repeat them here.[15]

75.  When put to her that she should not have filmed these clips, and/or that she ought to be walking away from conflict instead of confronting them, the Mother admitted that ‘I did walk away a bit but both of us weren’t doing our best, if I am in same situation now, the present me will cater for the emotions of the children’.

76.  She was then asked about the basis she disbelieved D about the Uncle G incidents, and why she, as the Mother, did not ask from the Police to watch the interview D gave to the Police. The Mother said she wanted to watch, but on the day in question, the Father and S were also present at the police station and the Police turned off the TV to protect S from the situation. Subsequently the police rejected her request to watch the said interview as the matter was already under investigation. Further she believed that on the December incident in question, the Mother was always by the side of D and the said alleged sexual assault could not have happened.

77.  On her working pattern, it was put to her that she could arrange to work on other days other than Thursdays to Saturdays. The Mother explains that her clientele usually prefers to have their hair styled near weekends or on weekends, in addition to her customers getting used to her designated days. She fears any change will result in losing a lot of her customers and she needs the money to pay for rent.

78.  Even though Sunday is also a day she could arrange work, the Mother prefers to spend Sunday with the Children. When put to her whether her days with the Children can alternate on a two-week rotation basis, the Mother says that would cause confusion to her customers, that ‘a lot of ladies would like to make appointments 1-2 weeks in advance, I think it is convenient for them which days’.

79.  When asked whether she could change her working days to alleviate the late handover issue, the Mother views that late handover will occur even if she changed days. She added that Fridays and Saturdays have the most customers so it is crucial to her income.

80.  When asked if a week-on-week-off arrangement would suit, she says ‘although I very much want to do so, if I don’t work the full week it is hard for me to tell my customers that, it will greatly affect my income.’

81.  On communication, the Mother was asked that prior to the CNY Incident in 2021, she would throw tantrums but will reconcile with the Father. To that the Mother said that since having the Children, ‘I felt I was trapped and had a lot of confrontations with him, because I was unable to fulfil many of his standards, I find them unreasonable, thus a lot of disagreements.’

82.  On the CNY Incident, the Mother said the Children as well as her maternal family should not have to experience the anger expressed by the Father, that his insults were disproportionate, and that there were guests and other children also at the gathering.

83.  On the reason of her moving out in April 2021 and became partly living in the FMH only, leaving the Children under the exclusive care of the Father on Thursdays to Saturdays, the Mother explained that since the CNY Incident ‘I was under a lot of mental abuse at home, he would scold me when I was sleeping, he would threaten me that I would not have good days. When sleeping with child in bed I had to wear clothes for going out and had passport with me’. The Mother said this situation remained so even after she partially move out in April 2021, especially when she did not disclose her residential address to the Father. She believed disclosing her address to the Father would only cause further conflict with the Father likely to call the police and dragging the Children into the saga further. This was also the Mother’s reason for not moving out with the Children permanently at that time.

84.  On the 13 November 2022 incident causing the Mother and the Children to admit to the refuge centre, I shall not repeat those evidence regarding who did what or who was more, or at all, in the wrong. There are cross-allegations that one hit another, involving the use of a mobile phone. What is not disputed is that it was a high-conflict dispute witnessed by the Children. It was put to the Mother that she took advantage of this incident to take the Children to a shelter when there was no such need, this is denied by the Mother. The Mother described the Father as emotionally unstable that night and if he could hit her, he could hit the Children as well.

85.  When asked why on the one hand she remained at the shelter and resumed schooling for the Children and work for herself, on the other hand she kept paying rent for M’s Residence but without moving in, the Mother said during that period she wanted an agreement with the Father to the effect of having the Children with her, and she did not want to give up the premise as it was not easy to secure the same.

86.  The Mother was later re-called to allow her an opportunity to testify on Exhibit D. In gist, she was only under a one-minute cross-examination with Mr. Swainston asking her if she accepted the letter was D’s handwriting. I have dealt with this part above and will not repeat.

Second eldest sister of the Mother (“Ming”)

87.  Ming filed an affirmation in support of the Mother’s then proposal of joint custody and sole care and control of the Children. Most of the cross-examination was premised on some alleged fact-finding of historical incidents such as the CNY Incident, arrangement of the Children to the MFH during the time they were at the refuge centre, and regarding the safety of the MFH. I do not find her evidence helpful to either party in general in resolving the issue at hand which is forward-looking in nature. It was put to Ming that the Children had never been happy when they were at the MFH, to which Ming strongly denied and referred on the various photos / videos exhibited in support[16].

Discussion

88.  Since the two issues I have identified are intra-linked in many ways, I shall consider them together in the discussion below. In determining what is the best arrangement for the Children, inevitably one will also consider the ability and willingness of the respective parents to be bound by such an arrangement; and where that arrangement requires co-operation of the parties to a certain level, for instance, for each parent to take up a substantial role in the care of the Children, it is in my view important to consider the characters of the parents in doing so.

89.  I note for a start that both parties acknowledge they have some emotional issues and have each been engaging private counselling services and ongoing. It is not necessary for me to go into detail of each party’s past experiences in shaping their respective emotional wellbeing. As I said at the beginning of trial and throughout, the parties each offer a significant chunk of care time to one another in their past and present proposals. I have raised this to both Mr. Chan and Mr. Swainston that the issue of childcare ability should not be disputed and they agreed. In any event, it is also the evidence of the SIO that each of the parties are well capable to take care of the daily lives of the Children on their own. I agree.

90.  I remind myself that in custody matters, one is not looking for a perfect parent; nor is one to embark on a fault-finding exercise on the other parent based on singular incidents. It is not so much about the credibility of the parents as a witness, but rather, by understanding their respective characters it assists me to come up with an arrangement that has the best chance of working, and in this particular case, with the least conflicts exposed to the Children.

The Father

91.  For the Father, I can feel deeply his love for the Children. He wants the best for the Children to the best of his ability. From the various observations of the SIO and all the evidence before me, I have no doubt that the Children has a strong sense of physical as well as emotional attachment to the Father. This is especially so notwithstanding the Children having witnessed so many parental disputes throughout their lives, as well as having some understanding the character of their father. They have not picked a side and both D and S are still eager to show love and support to both parents, albeit reportedly in quite different ways. The Father must be given credit for his part of parenting resulting in the strong and positive bond enjoyed by the Children and him. I say this equally to the Mother and will say more below.

92.  Much has been brought out in the evidence about the resilient character of the Father when it comes to dealing with other people, especially professionals. It has been described that the Father is a person with prejudice. Having given it much serious thought, my view on this is as follows. I cannot take the Father’s character traits in a piecemeal manner; nor should I pass any moral judgments on the Father be it on his lifestyle, his views on others, or his personality. I accept that objectively speaking, it can be said that the Father has chosen an unconventional way of life in Hong Kong – to me this shows the beauty of our city where it can afford wide diversity of lifestyles. The Father has lived in Hong Kong for some 30 years now, I do not think he is trying to adapt to life in Hong Kong but rather, he has through his own way found a peculiar way of living, one that has worked for him over these many years. Albeit somewhat argumentative at times with relevant personnel related to these proceedings, I accept that the Father has not transgressed the law. I can therefore feel his frustrations during the period when the Mother and the Children were placed in the refuge centre, with criminal investigation against him afoot and subsequently dropped, but somehow he was treated like a dangerous person by others, be it on access arrangements and/or upon discharge from refuge centre in April 2023 soon after the first Court hearing. I also note that the Court Order regarding the interim arrangements was reached by consent, together with a number of undertakings offered by the respective parties. I see the latter a result of the joint effort of the parties.

93.  All the above lead me to view that the Father has wanted and still wants it to work – to be precise, that is to have the Children under an arrangement that can bring less conflict and stress on all parties concerned. In other words, I do not doubt this is a father who has put forward what he genuinely and subjectively believes to be best for himself as well as for the Children.

94.  I take into account a highly independent and somewhat isolated way of life of the Father, in running a self-sufficient home at the FMH with minimal community support, with his workshop setup at the outdoor area of the FMH catering for working from home – a culture only truly introduced to the otherwise busy commercial cities around the world after COVID-19. The Father’s craftsmanship in his work as a luthier attracting international recognition by having customers across the globe also tells me that he can be highly focused and organised. There is no dispute that in terms of physical care for the Children, he can well manage by himself, with no assistance from others, all daily chores. These are all positive virtues I hope the Children could appreciate from and gain respect for the Father.

95.  The Father himself told the SIO in the latter’s first report that he was a ‘short-tempered, emotionally sensitive and mildly ‘autistic’ person, as a victim of post-traumatic stress disorder due to his traumatic childhood according to the assessment by psychologists and psychiatrists before’[17]. This also tells me that he himself has had the experience in meeting many professionals in the past in relation to emotional wellbeing. He must know how it feels to be under these assessments.

96.  I take the view that his lack of trust to professionals in these proceedings, compounded with allegation of him being prejudiced, or racist as specifically alleged, is something that the Father should take further steps to avoid exposing such views – leaving aside justified or not – to the Children. ‘Prejudiced’ is a relative term, and insofar as good parenting is concerned, I think the Father needs to learn to curb his views in front of the Children. D and S, given their ages and bonding with the Father, can be easily influenced by the Father in forming the same views, but without the rich life experience of the Father to understand why these views are formed. In short, the Children ought to be kept an open mind for them to explore the world, as they see it for themselves. I do not accept the conduct of the Father insofar as when the Children are present (e.g. those remarks he made in the car as one example) to be appropriate. The Father has to learn that while he is free to practise the virtue of honesty in the adult world to others, by speaking his mind in unfiltered words, the Children are in fact vulnerable to such an environment. The Mother has told the SIO that the Children tells her that at times they feel embarrassed that the Father often gets into arguments with strangers. There is also ample evidence before me that whenever the Father speaks his mind, it is mixed with foul languages.

97.  The Children are reaching adolescence soon and I trust the Father does not need me to tell him that. I was pleased to learn that the Father benefits from Mr. Gee his private counsellor and has trust in him. I urge this to continue and skill sets like counting to ten – which the Father testified that he has learned – would further help the Father in better management of his emotions in front of the Children. I believe that if the Father agrees with me to curb his views in front of the Children, it will naturally follow that he will curb his temper also. I put emphasis on ‘in front of the Children’ since I am aware that by the current arrangements, the parties will only meet each other during handovers. Thus, all the evidence showing heated parental conflicts directly against one another should have been minimised in front of the Children in going forward, if any.

98.  The Father’s disapproval of the MFH and the maternal family is in my view detrimental to the Children. I do not repeat the above where I do think the Father ought to give the Children their independent opportunities to think freely, especially when it is about having a relationship with extended family members. This is not to mention ample evidence by photos / videos as well as the SIO’s direct observation that D and S do enjoy spending time with the maternal family, including and not limited to Uncle G, at the MFH or other places.

The Mother

99.  Similarly, I do not intend to set out in great detail of the Mother’s past and only refers to how she describes herself to the SIO where she expressed that she sought private psychiatric treatment as early as when she was 22 years old due to stress at work and having episodes of panic attacks and has been receiving psychiatric treatment since then and diagnosed to have generalised anxiety disorder[18]. She has been on prescriptions at all material times and since the birth of D she had changed to a prescription named Zoloft. The Father complains in these proceedings that it is the use of Zoloft that has deteriorated the parties’ communication. The Mother disagrees and without medical evidence by relevant professionals, I do not accept this contention.

100.  She, like the Father, engages in private counselling from a Dr. Li since 2021 and at present ongoing. Dr. Li revealed to the SIO that the Mother had been struggling to get a divorce for a few years and owing to her upbringings, she used to perceive herself low in worth and be of little confidence in filing the divorce and taking care of the two children on her own, even though she was very distressed in the marriage. She sees her present priority in life is to cultivate a safer and more secured home for the Children and herself[19].

101.  The Mother regards herself to have an open style of parenting and wants the Children to have more social exposure, that they seldom had, for their development. She viewed that albeit not her original intention, she found the stay at the refuge centre beneficial to the Children in terms of learning about community through taking public transport, visiting theme parks, strolling shopping malls etc., allowing them to be more willing to interact with others and accepting challenges in daily life[20].

102.  I am approaching the Mother’s character in the exact same manner as I did with the Father, namely refusing to be drawn on piecemeal matters but to look into their strength and weaknesses as a whole, without passing moral judgment and without asking them to become a perfect parent. As I see it, it is not just the differences between their personalities / parenting style, which they have highlighted to me throughout trial, but also similarities between them which they might have now either forgotten or failed to acknowledge anymore. The Mother is emotionally sensitive just like the Father. Her work also involves great craftsmanship and perhaps with a little more interaction with customers as compared to the Father. They are both skilled workers in a highly creative art – hairstyling and guitar making respectively. They are both introversive in nature in my view.

103.  The Mother in my view is quite fixated on her work schedule. I accept her reasoning in terms of they are her real beliefs. It is a pity that there is no room to explore further on any alternative work arrangements. Given that this is a hair salon and a time schedule she has worked under for a prolonged period of time, I have no reason to doubt her worries. Thus, it is in my view only realistic to base my decisions on the premise that the Mother needs to work on Thursday to Saturday during the week.

104.  I also appreciate the Mother’s hard work on childcare on her own, even though by comparison to the Father she has extended family support at the MFH. As I see it, the Mother at all times has been hands-on and only resort to family members when she needs to work. I can understand that to the Mother, it is a courageous act in itself to face court litigation on children matters. I can also understand her frustrations when she wants to make the right decisions for the Children but somewhat faced with the Father who sometimes hold a different view.

Practical Arrangement

105.  In this particular case, I object in principle to the idea of relying on the assistance of others when the Children are allotted to the respective parent. They have each told me how much they love and treasure the time with the Children. They have each by past conduct persuaded me that they are well capable and fully dedicated to childcare on their own, jointly or severally. In this respect, the Children are lucky to have their parents predominately by their side week in, week out. This must not be taken for granted, especially when objectively compared to the conventionally busy lifestyle in Hong Kong.

106.  I also consider the sense of equality being an important factor in this case, when both parents invest much love and affection, as well as practical adjustments for the Children. I shall come to labelling later but insofar as practical arrangement is concerned, it is my view that a roughly 50:50 arrangement, aiming at the maximum quality time spent by the Children with respective parents, would be more beneficial to the best interest of the Children.

107.  I am aware of the MDCC findings, and on the other hand the still ongoing police investigations on Uncle G. D herself has been expressing contradictory views on this, when facing the Mother, SIO, police and/or the Father. While I am not able to place any weight on the letter D purportedly wrote to me as explained earlier, I consider the content of that letter prima facie only adds to the controversy in this respect. I think to err on the safe side, unless and until the police investigation is concluded, Uncle G should not be present when the Children are with the Mother, at the MFH or otherwise.

108.  As to the MFH, I do not find it to be unsafe for D and S to spend time there. What I believe is that be it the MFH or the FMH, there are large outdoor areas and these are good for children per se, subject to safety precautions and supervision. I trust the Father, when the Children are with him at the FMH, would continue to ensure their safety whenever he has to attend to domestic chores and/or to work in his workshop, inevitably leaving the Children unsupervised for short chunks of time; likewise I trust the Mother to do the same when the Children are at the MFH. I have considered the historical incidents that had taken place at the FMH and/or the MFH and I view them as accidents that had happened well in the past. The Children are much better with physical self-awareness at their current ages. I do not believe either of these premises would pose any real danger to them to the extent that I ought to make any orders refraining the use (or the level thereof) to them based on the issue of safety. The Children ought to be able to embrace the advantage of having outdoor space, something that a lot of children lack within the city.

109.  On the point about Chinese homework on Thursdays and Fridays, I accept the Father’s solutions by seeking online translation applications help to be suitable at present, and that he is open to seeking further assistance from others if the situation requires in future.

110.  For the issue of handover, I have fully considered the reasoning behind the SIO’s various recommendations including his latest one which is against the wishes of both the parties. I can appreciate why the SIO maintained his latest recommendation, as his logic is to focus on the smoothening the handover issue as priority over the workability of the other components. With respect, I do not agree this is the correct approach in the present case. It is clear to me that the willingness of the parties to abide by a court order must be taken into account in the circumstances. I say this with specific reference to this case since I find support in the interim arrangement court order made by consent. I find that, once that order was made, the parties by and large abided by it. This shows me that the Court is dealing with not only one, but two parties who respects court orders and try their best to comply with the same.

111.  The handover issue concerns, under the interim arrangement, the alternative Sunday handovers when the Children are supposed to go back to the Mother in the morning. According to the Father, the Children expressed they did not want to go to the MFH or to meet with maternal family members. Sometimes they will even say they do not want to return to the Mother and want to stay with the Father forever. Thus, the Father had to deal with such resistance and even with his best efforts, he could not bring them to the Mother on time. This in turn stresses the Father, as well as the Mother who may have pre-arranged activities for the Children on a Sunday. Eventually it causes a situation where all four of them are not happy.

112.  To begin with, I must say that the Court does not hold a magic wand and if there is a perfect solution that exists, by the collective wisdom of all these professionals working on this case, as well as the parties, they would have come up with it already. I have given very serious thought about taking an approach to avoid Sunday handovers, namely moving handovers to Saturdays and Mondays. This approach would be in line with the recommendation of the SIO in his third report. If this is to be ordered, then on an alternate week basis, the Children will be brought back to the Mother by the Father from the FMH on a Saturday night every other weekend. The Father views any drop-off time after 6pm would be not viable for the Children as they go to bed early, not to mention he disagrees a handover on 6pm on a Saturday. The Mother would still be at work by then. If it is ordered to be at a later time in the evening, and with the difficulties faced by the Father, there will inevitably come to a situation where the delay will cause the parties to consider whether it is better for the Children to stay the night at the FMH to avoid stressful handovers on a late evening when the Children are tired anyway. I agree there is a real likelihood of the above situation arising. However, I do not agree with the SIO that the resolution lies in a substantial change in the present pattern when his last recommendation is for the Mother to have Mondays to Fridays, and the Father to have Friday after school to Monday school, except for one week of the month where the Mother can have the entire weekend. My reasoning is simple. I accept the Mother’s evidence that she has intentionally preserved Sunday for the Children so that they could participate in weekend activities. This is important, especially as the Children grow, they may wish to have playdates and/or to have group activities / birthday parties etc. which normally are held on Saturdays or Sundays. The Mother has given her reasons for her rather non-compromising approach to her work schedule. The SIO wants to believe that there will be flexibility to the Mother’s schedule but I view this is unrealistic based on the evidence. Further, by the SIO’s latest recommendation the time split between the parties are less equal, amounting to a 40:60 ratio with the Mother having more time (but overlapping her work time) and with only one Sunday utilised for the Mother it leaves the other three Sundays with the Mother having no time with the Children. In my view, this 40:60 ratio represents the time division of the parents; whereas the 50:50 ratio I have in mind represents the time actually enjoyed by the Children with the respective parents. I have already rejected this ratio and prefer a roughly 50:50 ratio above for other reasons and will not repeat.

113.  For all the above reasons, I view the following arrangement for the Children, based on a 2-week rotating cycle, is in their best interest in going forward:

Week 1

(i)  The Children shall be with the Mother from Sunday 10am to Thursday school drop-off;

(ii)  The Children shall be with the Father from Thursday after school pickup to the next Monday (in week 2) school drop-off;

Week 2

(iii)  The Children shall be with the Mother from Monday after school pickup to Thursday school drop-off;

(iv)  The Children shall be with the Father from Thursdays after school pickup to Sunday 10am;

(v)  The Sunday handover location be at Olympic MTR station (as per Annex A of the Order dated 17 April 2023) or otherwise to be agreed by the parties;

Others

(vi)  On Sundays when the Children are with the Mother, the Children are not to attend the MFH or to meet with the maternal family members;

(vii)  Save form the above, the Mother is at liberty to enlist childcare assistance from others, including her family members at the MFH, during other times when the Children are with her;

(viii)  The Children are refrained from meeting with Uncle G until the conclusion of the police investigation.

114.  In addition to my reasoning earlier, I have decided to impose the above conditions, i.e. (vi) to (viii) insofar as they concern the Children’s time with the Mother. I hope that by these conditions, the Children will be more at ease, or, at least will complain less to the Father when they refuse to leave the FMH on Sunday morning about not wanting to go to the MFH or to meet Uncle G on that day. I have also taken into account the true value of this Sunday quality time should be utilised to either participate in weekend activities with the Mother (the Mother has listed a range of activities in her evidence), or to meet with other friends of the Children / the Mother. This is a day where, according to the Mother’s evidence, she has to sacrifice work to preserve for the Children. Thus, as things stand regarding ongoing handover difficulties as well as the Uncle G issue, I think this is a good solution as it gives the Children the expectations that the Mother will be spending exclusive time with them on the day of handover, taking them to fun places etc. Given their age, if, for example, the Children are aware that the Mother will take them to a theme park on Sunday without others, I believe that gives the Children more incentive to be on time for the handover.

115.  I have considered that once the Children are with the Mother, i.e. after the handover, they are apparently receptive to whatever activities the Mother arranges for the Children, including visiting the MFH and maternal family members. I take into account that the Mother does not work on Monday to Wednesdays and she can arrange these visits after school on those days. I should stress that my decision to impose these conditions are premised on tackling the Sunday handover issue only, and not to be viewed as having any issues with the safety of the MFH and/or he maternal family members.

116.  As to handover location, by reason of the above I envisage the Mother and the Children may be travelling to various places. I therefore adopted the Olympic MTR station as per the earlier order, as opposed to Lantau / Tong Fuk village bus stop as proposed in the parties’ open proposals. This should be a minor point and the parties may discuss any handover location that suit them best in going forward.

117.  As to Uncle G, I expect my order in this respect will serve as transitional pending the result of police investigation.

Singular / Public / Long School holidays / Special Occasions

118.  I note that neither party is advocating for a big chunk of time under one parent even when they are under long school holidays. Given my finding above amount to a roughly 50:50 arrangement, I am happy for the parties to adopt this 2-week cycle notwithstanding the Children have long school holidays so no injustice is caused. I understand that if and when either party wishes to travel, they will further discuss and arrange accordingly.

119.  For singular / public holidays that falls on a particular day, the Children shall be with the parent responsible under the 2-week cycle. In other words, the usual routine prevails. The handover time will become 10am / 6pm when there is no school.

120.  I trust the parties will work out special occasions amongst themselves. There are no substantial arguments in this respect. I would say that as a matter of principle, the Children should spend time with the respective parents on these special occasions as additional time, and when it comes to the birthdays of the Children, they should be shared equally.

Labelling

121.  Given the arrangement above, I have no hesitation to say that the appropriate term to reflect this arrangement would be one of shared care. It is not a case of joint care and control by reason of (i) the lack of high level of co-parenting, as things stand; and (ii) the labelling of custody is not as obvious, as it would be for a case of joint care and control that joint custody would be the inevitable labelling. Nor is it a case of sole care and control to either party by reason of the 50:50 ratio arrangement clearly does not reflect the same.

Sole or Joint Custody?

122.  Considering all the circumstances of this case, with the more material factors being:

(i)  The parties have been agreeing to joint custody in the 1^st, 2^nd and 3^rd SIR, and only each opted for sole custody in the last SIR, as well as their proposals at trial;

(ii)  The 3^rd SIR was prepared in anticipation of the trial to be scheduled in December 2023. This means that, but for the subsequent incidents concerning Uncle G causing the trial to be re-fixed, the parties would have agreed to joint custody;

(iii)  The law on this is clear in that the difference in the labelling is a very thin line;

(iv)  Decision making on daily matters would unavoidably rest on the parent who has care. In this case, there is no concept of ‘access’ since under a shared care arrangement, both parties have ‘care’ time, not ‘access’ times;

(v)  I remind myself that the ultimate winners of children cases are the Children, and not the parents. In the context of labelling, it is important that it does not gives a perception of having a winner and a loser vis-à-vis the parents;

(vi)  Insofar as decision making in major decisions, concerning this particular case, it may concern treatments by various professional for the Children, namely health related. Are these decisions defined as major? It may depend on each situation; and

(vii)  Both parties have legal representatives and has demonstrated that they respectively understand sole custody does not mean a parent does not need to consult / discuss with the other. It has been submitted to me that I can make a sole custody order with some undertakings from the sole custodial parent to inform and discuss etc. with the other on major issues. I do not accept this since a sole custodial parent is by law under the duty to do so in any event, not to mention the fact that the Court will not order an undertaking.

123.  I am inclined to say that for this matter, a joint custody order would better reflect the true state of the matters between the parties and the Children. There is also an element of encouragement for future co-parenting and better communication, supported by evidence of the SIO where he says in this case, the parties do have communication, only that at present they are of poor quality; but this is better than no communication at all. The various examples of schooling, D admitted to hospital, D’s pimple on her back, up to S’s engagement of clinical psychologist (albeit late agreement at trial), demonstrate that the parties are able to co-parent.

124.  I have also thought at length about the respective characters of the parents against what their want for the Children in going forward. As said, and without any negative connotation here, the Father leads an isolated way of life in Hong Kong. Is this his expectation of his Children when he testified that he wishes the Children to be given the broadest opportunities? The Father agrees to place both Children under local schooling, with is taught under an integrated culture. The Mother, as I have set out above, wants the Children to be opened to community. From the feedback of teachers, it seems that the Children are doing well in an integrated environment at school. S’s speech delay, in my view, may be partially the negative product of COVID-19 and in any event, he is doing well now to overcome any under-performance.

125.  To grant the Mother a sole custody order on the basis that she is more sensitive to having an integrated way of development for the Children, and thereby will make better decisions for the Children by comparison to the Father, is in my view a valid argument. However, when I think deeper to this, there is no evidence before me to suggest that the Father does not want the Children to be integrated to society in principle. How the Father himself conducts his own life is something nobody can change and as I said before, he is at full liberty to do so without transgressing the law. I have set out the positives of living a highly independent isolated lifestyle and those related skills sets / virtues can be good examples for the Children, if explained in the appropriate manner. By the present shared care arrangement I have ordered, I would prefer to encourage the parties to each accept the fact that the Children will be brought up through the joint efforts of the Mother and the Father, in any event. The better course to take in my view is to have a joint custody order in place, to recognise this fact of life, and for both parties to start educating the Children about their parents’ differences be it in personality, lifestyle, and/or their expectations on the Children. As much as I wish for the Children to stay away from litigation, all evidence before me suggest that as things stand, it is not yet possible. Thus, the effect upon the Children learning from their respective parents about a sole custody order, in favour of either parent, is also something I have to take into account as a practical concern.

126.  All in all, and although not through the exact logic of the SIO, I view that an order of joint custody is in the best interest of the Children, which is supported by the recommendation of the SIO as confirmed in his testimony.

127.  As to progress report, both parties wish to ask for one, but the SIO is wary of burdening the Children further. I would order for a progress report since I think the Court may be in a better position to further help the Children upon the police investigation on the Uncle G incidents becomes clear.

128.  I do not make any orders regarding engagement of a parental co-ordinator. I accept the SIO’s observation in this regard where he views it may be helpful to have one, it very much depends on who that person is. Therefore I view the best course to take in this regard is to keep an open mind about having a parental co-ordinator and only when a right candidate comes along, the parties may consider appointing one.

Order

129.  I hereby make the following orders:

(i)  There be joint custody to the parties;

(ii)  The parties do have shared care of the Children, in the manner set out under paragraph 113 above;

(iii)  A progress report to be called for with the report filed into Court on or before 30 November 2025 and to be released to the parties;

(iv)  Parties may jointly write to the Court upon perusal of the progress report to fix for a call-over hearing, if necessary.

Costs

130.  This being a children matter, the usual order is no order as to costs. In my judgment, I accept that both the Father and the Mother have been litigating with the genuine subjective belief that they are putting forward proposals in the best interest of the Children. On the other hand, the parties’ respective proposals are close, and much time was spent on litigating either historical singular incidents, and/or labelling, causing the trial to go part-heard repeatedly and substantially derailing from the parties’ signed time estimates[21]. Further, upon filing their respective closing submissions in August 2024, the Court received a consent summons in, inter alia, seeking to file and exchange a reply submission by September 2024. The said consent summons was ordered in terms on 21 August 2024, but as it turned out neither party had filed reply submissions, causing delay in these proceedings. It was not until when the financial aspect of these proceedings was heard by the Court (dealt with by another Judge) on 17 January 2025 that the parties confirmed to the learned Judge that they did not and will not file reply submissions. All of these are litigation conduct that I view prima facie both parties are at fault.

131.  I shall make no order as to costs to the children proceedings, including all costs previously reserved. There be certificate for Counsel. The Mother’s costs to be taxed in accordance with Legal Aid Regulations. Unless any party applies to vary this costs order within 14 days here of, this shall become an order absolute.