RK v. YS

FCMC4931/2012

& FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4931 OF 2012

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

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

AND 

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 151 OF 2008

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

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

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

RAESONS FOR DECISION
(Leave to appeal)

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

Introduction

1. After a 7-day’s trial, I handed down my judgment dated 6 January 2015 allowing the respondent’s (“mother”) application to permanently relocate the children of the family to her home country, Japan (“Judgment”).  The petitioner (“father”) filed a summons on 19 January 2015 seeking leave to appeal against the Judgment and to stay the relocation pending his appeal to the Court of the Appeal. At the end of hearing, I refused to grant leave to the father or to stay the relocation, with reasons to be handed down. I now give my reasons.

2. In the following discussion, I would adopt the abbreviations used in the Judgment.

3. The background of the case and the circumstances leading to the mother’s application were already set out at para 6 - 32 of the Judgment. Her grounds of application and the father’s opposition were broadly summarized in para 2 and 3 of the Judgment.  Therefore, I do not propose to repeat them at length here.

4. The children of the family involved in this case is a girl, now aged 12 (“AK”) and a boy, now aged 10 (“KK”).  AK has all along studied in a Japanese curriculum; she is now in the secondary section of the Hong Kong Japanese School.  KK is suffering from severe autism and unable to take care of himself in daily life. He is now studying at the Family Partners School. They were both born in Japan. They visited Japan and the maternal grandparents from time to time with their mother; but that was stopped since 2008 due to a non-removal order put in place once when the parties started their litigation.

5. It may be helpful to note by way of background that neither party was born in Hong Kong; the father was born in the USA, while the mother in Japan. Their immediate families are now in their respective countries. The parties came to Hong Kong in 2005 with the children only due to the father’s work. The mother has been a full-time housewife since marriage and the primary carer of the children since their birth. She has shown her desire to return to Japan with the children as early as 2008 or 2009 when the marriage broke down, and the father was aware of her desire. AK has also given her clear wish to move to Japan with the mother. The father himself does not live in Hong Kong now; he has been residing/working in Taiwan since August 2013.  He has recently made enquiries as to how to obtain permanent citizenship in Taiwan.

Applicablelegal principles

6. Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

7. The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

8. The father’s appeal is directed to the Judgment made in the exercise of my discretion. It is trite to say that where the court below exercised a discretion, the appellant court would only intervene when it considered that the judge below had exceeded the generous ambit within which the judicial disagreement was reasonably possible, and was in fact plainly wrong, and not merely because the appellant court preferred a solution which the judge had not chosen (See: G v G [1985] 2 All ER 225; RK v YS, HCMP 1969/2012 (date of judgment: 1 November 2012)).

ProposedGrounds ofAppeal

9. In his summons, the father sets out 3 grounds of appeal as follows:

(1) I erred in law in concluding that his rights as a parent should be better protected by Japan’s adopting the Hague Convention and thus disregarding the Japanese legal opinion dated 6 December 2013 provided by a Japanese lawyer commissioned by him;

(2) I erred  in concluding that the mother is in need and can rely on the assistance from his parents;

(3) I erred in concluding that the mother has not obstructed access and failed to take into account the 2^nd DC Judgment of Deputy Judge S Lo, whereby the deputy judge commented that the mother had breached some of the orders and that committal proceedings should be taken against her.

10. I shall now turn to his grounds of appeal.

Grounds (1)

11. Mr Clough, counsel for the mother, is right in submitting that the father has, in his earlier affirmation, expressed his concern about Japan not being a signatory to the Hague Convention[1] and thus my comment in para 108 of the Judgment must be read in that context. In addition, para 108 must be read together with para 109 of the Judgment.

12. I would add that the Japanese legal opinion does not provide an explicit view that it must be difficult to enforce an access order given by a foreign court in Japan. It simply points out that there is a “lack of sufficient case law on the enforcement of foreign court access orders for a foreign father residing in a foreign country with a child residing in Japan” and thus it is not appropriate to give “a speculative answer”.[2] Since there lacks sufficient case law, the legal opinion then expands on the ways of enforcement of access orders made by a Japanese family court, presumably with a view to draw analogy. If analogy was really able to be drawn, then I do not read the said Japanese legal opinion to go so far as to support the father’s proposition that “there are no means of enforcing the Order [of Hong Kong courts] in Japan”,[3] for several means of enforcement of an access order have been set out therein. [4]

13. Further, I am of the view that the father’s submission that he cannot not rely on Article 21 of the Hague Convention to petition for access in Japan because he now resides in a non-contracting state of Taiwan is, by itself, contrary to his own oral evidence in the trial. In the trial, he was very adamant in saying (though not accepted by me) that he would be posted back to Hong Kong, where the Hague Convention is adopted, in the coming 2 years.

14. Looking at this from another prospective, if the father now considers himself residing in Taiwan for a considerable period of time in the future, then there is no logical reason for him to keep the mother and the children in Hong Kong, in particularly when the latter came to stay here solely due to his work.

15. In any event, the difficulty in enforcing an access order in Japan, if any, is only one of the factors for consideration in the balancing exercise. It is not the only factor for consideration.

16. Hence, I fail to see why and how the error in law alleged by the father lies. I reject his argument on this ground.

Ground (2)

17. I have described in para 57 of the Judgment the investigation by the international social welfare officer into the mother’s maternal family in Japan. I have also analysed in para 84 – 87 and para 94 - 95 of the Judgment on the support that the mother would enjoy from the maternal grandparents if relocation was allowed.

18. In his written submission, the father refers to the previous trial of the 2^nd DC Judgment, in particular the alleged evidence of the mother that she was able to care for the children perfectly fine on her own without help. He seems to suggest that the mother contradicts herself by now suggesting that she needs the assistance of a third party in caring of the children.

19. Since I am not the judge presiding over the trial of the 2^nd DC Judgment, I am not in a position to verify the accuracy of the father’s above allegation. The mother was not cross-examined on this point in the relocation trial.  

20. However, for the purpose of discussion and just assuming that the mother did give evidence to the alleged effect, I have the following to say. First, I do not think this is a fair comment administered against her. The comment has totally overlooked the indisputable fact that taking care of 2 young and dependent children is a tiring and challenging job, especially with KK who is a child of special need. Besides, needs of the children are ever-changing with their age and other development. Even if (just assuming) the mother needed not enlist the help of the others in the caring of the children at the time of the trial leading to the 2^nd DC Judgment, it does not necessarily mean that she needs no assistance in the future.  Here, I take note that the father himself in this trial acknowledged that with KK growing older and bigger, his carer would have difficulty in holding and carrying him and thus third party assistance, such as a maid, may be required.

21. The father also attempts to rely on the alleged new evidence to prove that the mother was not earnest in saying that she needed the grandparents’ assistance, since she is already formulating plans to send AK to the American (International) School in Japan and to move away from the maternal grandparents.  The new evidence is said to be some email correspondences between the parties subsequent to the Judgment, namely:

(1) An email from him to the mother’s solicitors dated 7 January 2015;

(2) An email from the mother’s solicitors to him dated 7 January 2015;

(3) An email from the mother dated 11 January 2015;

(4) An email from him dated 12 January 2015;

(5) An email from the mother dated 15 January 2015; and

(6) An email from him dated 23 February 2015;

22. Pausing here, I note that these emails are disclosed not by way of an affidavit, but simply attached to the father’s written submission or tendered to this court during his oral submission. If broadly described, they relate to the mother’s request for the father to repay her legal costs and outstanding MPS, etc, and if so, they can send AK to American (International) School in Japan for her to receive perfect Japanese/American education. I note further that there is disagreement between the parties in this hearing as to who initialled the idea of the mother/children’s moving closer to American (International) School, if AK was to study there.

23. Mr Clough for the mother objects to the production and reliance of these emails on the grounds that (1) this court can and should rely on the evidence as at the trial only, but not subsequent to it; (2) the criteria set out in Ladd v Marshall [1954] 1 WLR 1489 on admission of new evidence are not met.

24. The principles set out in Ladd v Marshall (supra) governing the admission of new evidence after trialare well-known, but are repeated below for the benefit of the unrepresented father. In order to have his new evidence admitted, he has to show that,

(1) the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

25. To set the records straight, American (International) School in Japan is first mentioned in the re-examination of the mother in the trial, as a result of the father’s concern when cross-examining her on the inadequacy (or lack) of English training and international exposure in local Japanese school. The mother, in re-examination, admitted that the best arrangement would be for AK to study both languages of Japanese and English in American (International) School in Tokyo, Japan, which is about 2 hours away from the grandparents’ home if by train. However, considering her present financial situation, she could only afford to send AK to local Japanese school. She did not say in the trial that she would move away from the grandparents’ home even if AK was to study in American (International) School.

26. If read in chronological order as a whole, these emails are far from showing that the mother has formulated a plan to move away from the grandparents’ home and to move closer to American (International) School. At the most, they can only be taken as discussion between the parties subsequent to the trial on possible education arrangement of AK in Japan with pre-conditions (such as the father’s payment of her legal costs and stability in maintenance payment) and consequential arrangement (such as moving closer to American (International) School) that may be made, in order to address to the father’s concern mentioned above.

27. Under the circumstances, even if these emails are to be admitted, it would not, in my view, advance the father’s case any further and thus have no important influence on the outcome of the trial. In this regard, Mr Clough’s submission is accepted by me.

28. My conclusion is to reject these emails and find that there is no reasonable prospect of success on this argument.

Ground (3)

29. The father’s 3^rd proposed ground of appeal is a repetition of what he has already said/submitted in the trial, which I have considered. There is thus no need for me to analyse further on this ground, but would simply refer to what I have said in para 72 – 82 of the Judgment.

30. I see no reasonable prospect of success on this ground.

Stay

31. Given my conclusion that there is no reasonable prospect of success of the father’s intended appeal, it follows that his application for stay should not be allowed. Further delay would lead to the inevitable and undesirable result that the children would miss the school term which commences in April in Japan.

Conclusion

32. The parties already indicated in this hearing that they accepted costs should follow the event.

33. Due to the matters set out above and for completeness, I would repeat what I have concluded and ordered in this hearing:

(1) The petitioner’s summons filed on 19 January 2015 for leave to appeal is dismissed;

(2) The petitioner do bear the respondent’s costs of this application to be taxed if not agreed, with certificate for counsel;

(3) The respondent’s own costs be taxed in accordance with the Legal Aid Regulations;

(4) This order be drawn up by the respondent.

[1] The father’s 27^th affirmation [1/192/§§64-66]

[2] P.9 of the Japanese legal opinion [2/492]

[3] The father’s 29^th affirmation [1/223//§§51]

[4] P.9-11 the Japanese legal opinion [2/492-494]

FCMC4931/2012
& FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4931 OF 2012

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

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

AND   

IN THE DISTRICT COURT OF THE

  HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 151 OF 2008

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

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

FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 151 OF 2008

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

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

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

J U D G M E N T
(Variation of Costs Order Nisi)

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

1.  Upon dismissal of the 2 Summonses taken out by the Applicant (“the Father”) for variation of custody, I made an order nisi that there be no order as to costs. This is the application by the Respondent (“the Mother”) to vary this costs order nisi.

2.  The starting point in all civil proceedings is that costs follow the event subject to the discretion of the court[1]. However, in family cases this general rule is more readily displaced and especially where children are concerned.  Generally in children’s cases it is usual for there to be no order as to costs. The Court retains a wide discretion to ensure that a party is not penalised simply for making an application in an attempt to show the Court what is in the best interests of the children.  Consequently the general practice of the Courts is not to order costs. The underlying rationale to the costs principle in children’s matters was explained in SuttonLondon Borough Council v Davis (No. 2)[2] where Wilson J states that:

“where a debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court 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.”

3.  But the court retains its discretion to make a costs order against the unsuccessful party in appropriate cases. Wilson J continued to say in the case of SuttonBorough Council[3] as follows:

“…But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable (see Havering London BC v S [1986] 1 FLR 489 and Gojkovic (No 2)[1992] 1 All ER 267 at 271, [1992] Fam 40 at 60).” (emphasis added)

4.  As to the kind of conduct that would justify a departure from the general rule, it has been suggested that the unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation. The Court of Appeal upheld the decision of Wilson J in R v R (Child) (Legal Aid: Costs)[4] stating that:

“….Although there was a general practice to not order costs in cases concerning children, courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs. It was unnecessary and undesirable to attempt to limit or place into rigid categories the cases in which courts might order costs, but amongst those cases would be those where a party had been guilty of unreasonable conduct. The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation.”

5.  If the applicant who goes beyond the limit of what is reasonable pursues a totally hopeless application, it may be regarded as unreasonable conduct that would justify a costs order against him.  In Re G (Costs: Child Case)[5], Butler-Sloss LJ had this to say:

“ 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 as to the extent to which they should continue to litigate.

…

 It seems to me that the case of R v R does not change the normal situation that it is unusual to order costs, although it will be appropriate to order costs when a parent, even a litigant in person, goes beyond the limit of what is reasonable to pursue the application before the court.”

6.  Therefore, the main issue now is whether the Father has behaved unreasonably in the conduct of his application for variation of the joint custody of the 2 children of the family that would justify a costs order against him.

7.  Apart from unreasonable litigation conduct, the court may also take into account of the disparity in financial resources in the exercise of its discretion on the matter of costs.  As Wilson J said in Keller v Keller and Legal Aid Board[6]:

“…Equally a marked disparity in wealth, such that, for example, the wife’s costs would bear harshly upon her economy but could be discharged by the husband without significant impact upon his economy, might give rise to an order against him.”

8.  The main submission of the Mother is that where a party unsuccessfully re-runs arguments which previously failed, he cannot complain if a costs order is made against him.  If it were otherwise, a party could make repeated applications about the same issues causing great expense to the other party in the knowledge he would be face no costs consequences.

9.  On one hand, I accept that the Father did seek to re-run several arguments which are based on some of the previous evidence. On the other hand, I also accept that he further relied on the new evidence filed such as Dr. Levy’s new report and other incidences in support of his applications which occurred after the Court of Appeal Ruling. Although I do not agree with the opinion of Dr. Levy on alienation, I do not think that it is a good reason to penalize the Father in costs for relying on the opinion of an expert in the new report.  Furthermore, it is noteworthy that based on updated investigations and matters occurring after the Court of Appeal Ruling, the Social Welfare Officer prepared her new reports in which she recommended split custody of AK and KK. Such recommendation is different from that made by her in her previous reports.

10.  As said in my judgment handed down on 8 May 2012, custody proceedings are not static but continuing. Hence, I was required to consider the events of the 14 months since the Court of Appeal Ruling. These matters include the fact that the Mother had unilaterally withdrawn KK from APS, the Father’s complaint about the Mother’s breach of the Court Orders and other change of circumstances.

11.  The Father said that although he is now earning $125,000 per month, he is on the verge of bankruptcy and is hugely in debt according to his updated Form E.  Part of this liability is the Father’s outstanding legal fees of HK$1,081,617.84.  The total legal costs and disbursements incurred by him has been over $5.2 million excluding the costs for the intended appeal of my order.  He said that he was even unable to pay the MPS since December 2011 that was previously ordered.  Hence, there is no prospect of any costs order being met out of the Father’s assets as he is seriously indebted to the tune of over HK$5,414,000.

12.  The Mother takes issue as to whether the Father is on the verge of bankruptcy.  I do not think that I am able to make any finding at this stage. In any event, the Father’s financial position is only one of the relevant factors which I shall take into account.

13.  I also have to consider that an order for costs against the Father may further add insult to injury and discourage any possible chance of any co-operation in the future, especially when joint custody of the 2 children has been granted to the parties. Having considered all the relevant circumstances, I am of the view that the Father has not adopted a stance that is beyond the band of what is reasonable.  His application for variation of custody shall not be regarded as totally hopeless although at the end, I rejected most of his arguments.  Accordingly, I dismiss the Mother’s Summons dated 21 May 2012.

14.  Lastly, regarding the question of costs of this application, I do not think that I shall penalise the Mother for costs too since the Father admitted that he has failed to pay the MPS to the Mother since December 2011 and the finance of the Mother must be in great difficulty. I also note that she has applied for legal aid on 18 July 2012. Thus, I exercise my discretion to make no order as to costs of this application.

FCMP 151 /2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 151 OF 2008

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

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

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

J U D G M E N T
(Leave to appeal)

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

1.  This is the application of the Applicant (“the Father”) for leave to appeal from the Judgment of this Court dated 8 May 2012 (“my Judgment”).

LEGAL PRINCIPLES

2.  The source of jurisdiction for the application is section 63A of the District Court Ordinance (Cap. 336) and the practice and procedure of the application is governed by Order 58 of the Rules of the District Court.

3.  Leave to appeal shall not be granted under section 63A of the District Court Ordinance unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

4.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.^[1]

5.  The solicitors acting for the Father did not file a draft Grounds of Appeal but filed a written skeleton submission as directed by me.  I will therefore try to look for the Grounds of Appeal from his written skeleton submission.

6.  In para 4 of his written skeleton submission, it states a ground of appeal that there was no evidence to support the finding that the 2 children in question would be looked after by Rosa, the domestic helper hired by the Father, most of the time. 

7.  Ms Brown, solicitor acting for the Father, rightly cited a passage from the Judgment of Hartman JA who granted a stay of the ouster order in this case.  His Lordship said:

“….the judge in the Family Court having recognized that the father plays a very real and constructive role in the welfare of both his children, has decided the difficult issues facing him on the basis essentially that the father is the breadwinner and must therefore go to the office for a lengthy period of time each day. With respect, that ignores the fact that there can be many ways in which the parent who must work can nevertheless fully and effectively continue to guard the best interests of the children. In such matters, a nimble and sophisticated approach is required. In layman’s language, difficult issues like this may sometimes demand lateral thinking”

8.  However, Ms Brown fails to quote another 2 important paragraphs from the Judgment of Court of Appeal^[2], in which Rogers VP said as follows:

“16.  In the present case the applicant (the Father) is clearly not in a position to give full-time care to the children.  His working hours have already been referred to.  They leave little, if any, time during a week for him to see the children.  The judge’s request that he should try to use its best endeavours to be home by 6 pm three times a week is clearly something that would be difficult for him, given his own evidence as to the necessity to entertain clients at night.  The conclusion must be that, even if he were at home by 6 pm, that would not necessarily mean that he would remain home for the rest of the evening.

17.  The applicant (the Father) is clearly highly dependent upon the Filipina maids, Rosa and Del.  Whilst the applicant has expressed great trust in Rosa, unfortunately she remains a hired help. A hired help can be no substitute for a mother. …..”

9.  First of all, I do not think that I shall disturb such finding by the Court of Appeal.  Secondly, the Father took out the Summons for variation of custody just about 7 months after the date of the Judgment of Court of Appeal and then said that he now left work between 5pm and 5.15pm from Monday to Friday and did not go to work on Saturday or Sunday.  I would not accept his evidence in this regard bearing in mind that he is a securities trader presently earning at least $125,000 per month and earning about $5 million at the time of the trial before Deputy Judge KW Wong (as he then was)^[3].  No explanation is in fact given by the Father as to why he can suddenly leave work so early now.  In any event, the Mother is not working and can take care of the 2 children on a full time basis.  She is no doubt the primary carer of the 2 children since their birth and has obvious advantage over the Father in this regard. Besides, the 2 children must have a lot of school holidays, eg summer vacation, Christmas, Lunar New Year, Easter holiday etc. During these school holidays, I do not think that the Father can take his annual leave to look after them but has to rely on Rosa to take care of them. 

10.  In para 8 of his written skeleton submission, it states that I failed to make any or any proper findings in respect of the parties’ character.

11.  I consider that Ms Brown, solicitor acting for the Father, simply ignores paragraphs 59 to 69 of the Judgment of Deputy Judge KW Wong^[4] (as he then was), in which he had already made proper findings in respect of the parties’ character.  Such findings are not overturned by the Court of Appeal. I do not think that someone’s character would change drastically in view of the short period of time after the Court of Appeal judgment. Hence, in my view, it is unnecessary for me to do this exercise again.

12.  In para 9 of the Father’s written skeleton submission, it states that I erred in law by proceeding on the basis that I was bound by findings of fact made previously. In para 14 of my Judgment, I quoted the case Re B (case proceedings: issue estoppels)^[5], in which Hale J. said that:

“Hence, if the applicant in one set of proceedings wishes to rely on findings made in previous proceedings in order to prove a case, the court will have to consider how this should be done. Frequently, although such findings are not necessarily accepted by the party concerned, that party will accept that a challenge to them in later proceedings will be futile. The court may then simply rely upon the findings made earlier. Sometimes, the party concerned or some other party will wish to challenge them. In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”at 295F (emphasis added)

13.  Ms Cruden, Counsel for the Father, never submitted at the trial that the Father wished to challenge certain findings made earlier and invited this Court to try such issue of fact afresh.  In the circumstances, I shall simply rely upon the findings made earlier in the Judgment of Deputy Judge KW Wong (as he then was) and the Court of Appeal.

14.  In paras 14 and 15 of the Father’s written skeleton submission, it states that I failed to place the children’s best interests as the paramount consideration.  I think that I have set out the legal principles in paras 11 to 22 of my Judgment and I do not need to repeatedly say in my Judgment that I am fully aware of the children’s best interests as the paramount consideration.

15.  In para 21 of his written skeleton submission, it states that I failed to make a clear and unequivocal finding that to deprive KK of many months of schooling is contrary to his best interests.  In para 103 of my Judgment, I said:

“I accept that the Mother has still a lot of room to improve herself with regards to taking care of KK. Nonetheless, I am of the view that she is a loving and devoted mother though not perfect.”

16.  In considering an application for custody, I consider that the Court shall try not to encourage the parties to play the “blame” game, namely making finding of who shall be blamed in a particular incidence.  In my view, it will only add further insult to the injuries of the parties who are already in a highly conflicted and acrimonious situation.    Indeed, no parents in the course of taking care of their children will not make mistake. The fact that the Mother made a mistake regarding the deprival of KK of few months of schooling is only one of the many factors for me to consider whether to grant the care and control of KK to her.

17.  In para 27 of the Father’s written skeleton submission, it states that there is absolutely no reference in my Judgment to the incident of the fire that occurred at the Mother’s home, which happened during the trial. The Mother was extensively cross examined as to the fire at her home and answered every question put sensibly and thoroughly.  Needless to say, she was up through the night and she told her Counsel, Mr Neal Clough, what had happened when she arrived at Court next day. Mr Neal Clough then relayed the information to the Father’s solicitors and Counsel, Ms Cruden.  The fact that there was no reference to this in my Judgment does not mean I did not listen and consider the evidence.

18.  I take the view that the fire incident is insignificant. That is why I said in para 52 of my Judgment as follows:

“For the purpose of the present application, I consider it will not be necessary for this Court to resolve each and every issue in dispute, especially some of which are insignificant.”

19.  In para 27 of the Father’s written skeleton submission, it states that I misconstrued the Court of Appeal decision. Ms Brown, solicitor acting for the Father, submitted that the Court of Appeal does not overturn or reverse the finding of the Mother’s alienation made by Deputy Judge K.W. Wong (as he then was). If that is the case, I wonder why the Court of Appeal still overruled the decision of Deputy Judge K.W. Wong (as he then was) and allowed the appeal of the Mother.

20.  In para 38 of the Father’s written skeleton submission, it states that the issue was the reason for the polarization and why AK was so negative in respect of the Father, not why she preferred being with the Mother. In my view, if the Father accepted that AK was so negative to him, he shall seek proper order from the Court to implement all the recommendations made by Dr Levy rather than applying for variation of AK’s care and control from the Mother to him. In view of the fact that AK was so negative in respect of the Father, variation of AK’s care and control from the Mother to him is certainly not in the best interest of AK.

21.  In para 45 of the Father’s written skeleton submission, it states that my reliance on one of Dr. Levy’s recommendations is inconsistent with my rejecting her findings and conclusion. First of all, the Court is not duty bound to accept all the expert evidence. The Court is entitled to partly accept and partly reject the expert evidence. Secondly, since I accept the finding of Dr. Levy that AK was so negative to the Father, I also accept her recommendations with a view to improving the bondage or relationship between AK and the Father.

22.  In any event, the issue of alienation is only one of the many factors for me to consider whether to vary the care and control of AK to the Father.  I do not think that there is any legal authority stating that if the Court finds alienation by one parent, custody, care and control of the child shall then be granted to the other parent automatically. After all, it must be a balancing exercise by the Court after having duly considered the best interest of the minor and all other circumstances. Indeed, nowhere in the reports of Dr Levy that she recommends the Court to grant the care and control of AK to the Father. Although Dr Levy makes many recommendations to improve the father-daughter relationship, the Father made no submission to this Court as to how to implement such recommendations. 

23.  In para 61 of the Father’s written skeleton submission, it states that I completely ignores the physical needs of KK for his medical condition. It is not in dispute that KK is a low functioning autistic boy. However, both parties especially the Father did not adduce any expert medical evidence regarding KK’s medical needs. I understand and am fully aware of the hot dispute between the parties as to the medical treatment of KK in respect of his autism. In short, the Mother’s approach is much conservative than that of the Father who is quite aggressive in the sense that the Mother is considering that the Father is forcing KK to receive some medical treatments which are not approved by the relevant authority in Hong Kong.  Nevertheless, for the purpose of this application and due to very limited or no expert evidence regarding KK’s medical needs, I am not in a position to make any comment on the parties’ approach or what medical treatment shall be given to KK.

24.  For AK, I have no doubt to put great weight on her wish to stay with the Mother. Since both parties are against split custody, it is not disputed that in the best interest of the children, KK shall reside with and not separate from AK. Hence, there is no reason to grant the sole custody of KK to the Father.

25.  In conclusion, I am not satisfied the Father has demonstrated that the proposed appeal has a reasonable prospect of success or that there is any reason in the interests of justice why leave to appeal should be granted.

26.  For these reasons, I would dismiss the Father’s summons dated 22 May 2012 seeking leave to appeal and make an order that the Father do pay the costs of the application to the Mother with certificate for counsel.

FCMP 151 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDING NO.151 OF 2008

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

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

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

J U D G M E N T
(Variation of Custody)

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

The Father’s Summonses

1.  This is an application taken out by the Applicant (“the Father”) for variation of an Order made by the Court of Appeal[1] on 22 October 2010 (“the Joint Custody Order”), pursuant to which joint custody of the 2 children namely, AK and KK was granted with care and control to the Respondent (“the Mother”) and defined access to the Father.

2.  The Father considers that joint custody is not working.  He is hopeful that if he is granted care and control, the Mother may become more willing to co-parent.  Whilst joint custody of AK remains unchanged, the Father now applies for care and control of both his children and sole custody of KK.

3.  By Summons dated 19^th May 2011, the Father seeks an Order that:

“1. The Applicant Father be granted care and control of the children of the family namely AK, a girl born on the 7^th March 2002 and KK, a boy born on the 14^th January 2004; and

2. The Applicant Father do have interim care and control of the child of the family, namely KK, a boy born on 14^th January 2004, with defined access to the Respondent Mother; and

3. Dr. Levy, the child psychologist previously appointed by the Court do make a further assessment and if necessary provide therapy to the child of the family namely AK, a girl born on the 7^th March 2002 and submit a report to assess whether there has been continued alienation by the Respondent and the effect this is having on AK’s relationship with the Applicant Father; and

4.   The Applicant to have leave to remove the children of the family temporarily from the jurisdiction of Hong Kong for the purpose of their annual medical consultations in the United States with Dr. O’Hara and associate doctors and thereafter for a holiday in the United States in July / August 2011.”

4.  §§ 3 and 4 of the above Summons had been dealt with by HH Judge KW Wong at the hearing on 15 July 2011. §§ 1 and 2 thereof were adjourned for trial with some directions. Subsequently, the case was transferred to this Court for trial.

5.  By another Summons dated 28^th November 2011, the Father seeks an Order that:

“1. The Applicant be granted sole custody of the minor, KK, a boy born on 14^th January 2004;

2. ……..”

Background to the present applications

6.  The fight between the parties regarding custody of the 2 children started in 2008. After 21 days trial from October 2009 to February 2011, the Decision was handed down by HH Judge KW Wong on 8^th June 2010 (“the DC Decision”)[2]. The learned Judge ordered that the sole custody, care and control of the 2 children were granted to the Father with defined access to the Mother.

7.  The Mother appealed. The Court of Appeal overturned the DC Decision and granted the Joint Custody Order. The Judgment of the Court of Appeal was handed down on 22 October 2010 (“the CA Judgment”)[3].

8.  The Father now applies to vary the Joint Custody Order and asks for care and control of both his 2 children and sole custody of KK.

9.  Most of the important background of this case has been set out in §§ 11 to 39 of the DC Decision. Save and except for those matters I consider significant, I will not repeat the background here again.

10.  In brief, the Father is an American born Chinese who works as a stock broker in Hong Kong.  The Mother is Japanese and a full-time housewife looking after the 2 children.  AK is now 10 years old, a healthy girl and is attending Hong Kong Japanese School. KK is now 8 years old.  He was diagnosed with autism in July 2006.

The Law

11.  Mr Clough, Counsel for the Mother, submitted that unless the Father establishes some significant change of circumstances, it would be wrong to change the present care arrangement.

12.  However, Ms Cruden, Counsel for the Father, submitted that the proper approach is to start with the statutory jurisdiction but not the CA Judgment. She said that there are many difficulties in the application of the doctrine of res judicata, whether cause of action estoppel or issue estoppel, to custody proceedings because the paramount duty of the court is the welfare of a growing child and not the niceties of res judicata or other procedural or substantive principles. As the Mother refuses to abide by the Custody Order made by the Court of Appeal, Ms Cruden for the Father submitted that this Court must necessarily consider evidence of events that have occurred both before and after the Custody Order. She cited Frost v Frost[4]. In this English Court of Appeal case, Salmon LJ said as follows:

“Since the character of the parties is always an important matter in deciding issues of custody, and care and control, it would be quite wrong, in my view, for the judge to be forced to approach this case, as my brother Fenton Atkinson L.J. said in the course of argument, in blinkers.” at 1228D

“I wish to reserve the question whether the doctrine of res judicata can apply in any circumstances in custody proceedings.” At 1228G

“The paramount duty of the court in custody proceedings is to consider what is in the best interests of the child. Of course, in a sense it is a fight between the father and the mother, but the court does not decide it on the basis of whether the mother ought to win or the father ought to win, but chiefly on the basis of what is best for the child. If in such cases the court is precluded by the somewhat artificial doctrine of estoppels from considering all the relevant evidence, I think it is a great pity. I do not think that the child’s interests should be sacrificed on the altar of an estoppels existing between the father and mother, nor am I persuaded that the law calls for any such sacrifice.” At 1229 A-E (emphasis added)

13.  AnotherCourt of Appeal case relied on by Ms Cruden is Rowe v Rowe[5], in which Sir Stanley Rees considered the relevant authorities and held:

“There are plainly a number of areas in matrimonial law in which the doctrine of estoppel has been eroded or excluded” at 110A

“There are impressive dicta to the effect that the principle of res judicata may not apply at all in relation to custody proceedings” at 110C

“Accordingly, the case for holding that the doctrine of estoppel per rem judicatam should not be permitted to apply in the instant case and any similar cases may be summarized thus: public policy on which the doctrine is founded does not require that it should apply because no benefit to the public would be achieved, since litigation is at least as likely to be increased as it is to be diminished and a grave injustice would be inflicted in certain cases on one party. In matrimonial cases, and particularly those relating to the custody of children, estoppels have a limited and diminishing role to play. The courts exercising this highly personal jurisdiction should only be bound by estoppels in clear cases where public policy is seen to demand that they should.” at 111A-C (emphasis added)

14.  In Re B (case proceedings: issue estoppels)[6], Hale J. held that there is no strict rule of issue estoppels binding any of the parties in cases concerning children:

“This case raises important questions as to the scope and application of the doctrine of issue estoppels, and as to the power of the court to limit the scope of evidence called, in cases concerning children.” at 286F

“The question is one of great practical importance in the work of the family jurisdiction. This case happens to involve a finding of sexual abuse, but in principle this is no different from a finding of physical abuse, or indeed any other finding of fact which is relevant to a person’s suitability to care for children. Again, this case happens to involve a positive finding against the father, but in principle the same should apply in relation to negative findings, unless a different burden of proof was applied.” at 286H-287A

“It seems to me that the weight of Court of Appeal authority is against the existence of any strict rule of issue estoppels which is binding upon any of the parties in children’s cases. At the same time, the court undoubtedly has a discretion as to how the inquiry before it is to be conducted.”at 295D

“Hence, if the applicant in one set of proceedings wishes to rely on findings made in previous proceedings in order to prove a case, the court will have to consider how this should be done. Frequently, although such findings are not necessarily accepted by the party concerned, that party will accept that a challenge to them in later proceedings will be futile. The court may then simply rely upon the findings made earlier. Sometimes, the party concerned or some other party will wish to challenge them. In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”at 295F (emphasis added)

15.  In the light of the above authorities, I accept that the doctrine of res judicata or issue estoppel is generally not applicable to the custody proceedings which are not static but continuing.

16.  However, for the events happened before the DC Decision, I will rely on those findings of facts in the DC Decision unless they are overturned by the Court of Appeal. I will further rely on those findings of facts by the Court of Appeal in the CA Judgment.  I see no reason why I have to disturb them or re-try them afresh.  In my view, I shall approach this case based on those findings of facts together with my own findings of the facts of the events which happened after the DC Decision.

17.  It is also noteworthy that the Father took out the Summons to vary the Joint Custody Order not more than 7 months from the date of the CA Judgment and that it is only about another 7 months from the date of the Father’s Summons up to the date of trial. Therefore, the events which I have to consider are those happened in these 14 months. 

18.  I also set out below the relevant statutes and legal principles which I shall bear in mind. Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap.192 states that:

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

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

(b)     …………”

19.  The general principles to be applied by the court in determining any question with respect to the upbringing of a minor child of the family are set out in section 3(1)(a) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) which is amended and comes into operation on 13 April 2012.  The word “welfare” in Section 3(1)(a)(i) is repealed and substituted by “best interests” and the word “wishes” in Section 3(1)(a)(i)(A) is repealed and substituted by “views”. The new section 3 now provides that the court:

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

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

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

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father…” (emphasis added)

20.  Section 48C of the Matrimonial Causes Ordinance, Cap.179 provides that:

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

21.  There is no corresponding legislative amendment to the said Section 48C.  According to Rayden and Jackson on Divorce and Family Matters[7], the word “welfare” has similar meaning with “best interests”, which is interpreted as follows:  

“The word ‘welfare’ must be taken in its widest sense. It has been said that the welfare of the child is not to be measured by money only or by physical comfort only; the moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded. ‘Welfare’ and ‘best interests’ are synonymous.”

22.  In England where the same welfare principles apply to children matters and from which the Hong Kong section 3(1)(a) of GMO were derived, the courts are required to have regard to the matters specified in the Children Act 1989 which have come to be known as ‘the welfare checklist’. Such checklist is also proposed in section 9.29 of the Report on Child Custody And Access published by the Law Reform Commission of Hong Kong in March 2005. I will not repeat the checklist here as it has been set out in §247 of the DC Decision. Some of the matters will be discussed below but some not since not all of them are applicable in this case. 

Father’s case

23.  The Father says that he has all along gone to great lengths to research all aspects of KK’s condition and treatment options.  He is in the hope that KK may one day be able to be main streamed and even have some degree of independence.

24.  Shortly after KK’s diagnosis the Father learned that early intervention and intensive Applied Behavioral Analysis (“ABA”) therapy was the most proven therapy for the treatment of autism.  The Father was referred to Dina Trakakis, director of Autism Recovery Network (“ARN”).  ARN is a home based ABA therapy program.  KK started out with 15 hours per week one-on-one ABA which was increased to 33 hours per week.  The Father is of the view that ABA must play a paramount part.  The Father’s research has shown the benefits of the “eclectic approach”, which is to combine many disciplines such as ABA, occupational therapy and speech therapy.  KK also began sessions with occupational therapist Liesbeth Krebbers and subsequently speech therapy.  The Father believes that ABA should take priority but the best approach is to augment KK’s intensive ABA with other therapies.

25.  The Father also believes that after school ABA should be moved to APS so KK was under one program with one Individual Education Program (“IEP”) as it would be most beneficial to receive consistent treatment and less confusing for KK.

26.  The Father tried to implement the single regime. Eventually, the Father had to seek the assistance of the Court.  Despite the Court making Orders on two separate occasions, the Mother refused and obstructed KK’s attendance. §3 of the Order dated 23^rd February 2011 provided that KK do start ABA therapy sessions every Monday and Wednesday after school.

27.  The Father says that the Mother refused to comply with the Order dated 23^rd February 2011 and did not consent to the said APS ABA.  APS could not commence the ABA without the Mother’s consent.  Once again the Father had to resort to seeking the Court’s assistance.  The Order dated 14^th April 2011 provided the Order dated 23^rd February 2011, that KK do start ABA therapy every Monday and Wednesday after school at APS, “be enforced and carried into effect immediately without any delay” and that the requirement for the Mother to provide written confirmation to the APS that KK can commence and continue the said ABA be dispensed with. 

28.  The Father further says that by May 2011, the Mother’s action had deprived KK of at least 8 months of ABA therapy.  KK has still not started ABA after school at APS.  KK’s treatment has been jeopardized by the Mother’s behaviour, contrary to his best interest.

29.  Since March 2007 KK has been a patient of Dr. O’hara a pediatrician in Connecticut, USA.  The Father’s research leads them to Dr. O’hara, who is also one of the leaders for clinical training on biomedical treatment protocol for autism.  In Connecticut they also consult with an occupational therapist Rae Suba to address KK’s sensory issue.

30.  The Father purchased a hyperbaric chamber.  This provides treatment with anti-inflammatory properties and to repair any brain damage which could be caused by KK’s mercury toxicity.  The Father said that KK needs to go into the hyperbaric chamber for several hours a few times a week.  When the Father lived with the family at Parkview, he would go into the chamber with KK, assisted by the domestic helper Rosa.

31.  The Father also sets out other acts and neglect of the Mother in his 18^th Affidavit that, he considers, have been detrimental to KK’s interests and have resulted in his hospitalization and otherwise endangered his health.  The Father cites the following instances:

(1) Delaying and obstructing KK getting a 24 hour EEG and MRI as recommended by the Queen Mary Hospital neurologist after KK’s seizure. 

(2) When KK was discharged from QMH following his seizure, he was given a suppository valium to stop future potential seizures were they to occur.  The Father said that the Mother should have ensured it was in KK’s school bag every day.  The APS supervisor revealed it was not in KK’s bag.  So the Father had to arrange another prescription for the school to be left there. 

(3) The Mother delayed KK being properly prescribed anti-convulsant medication thereby putting KK’s health at risk for each day he went without.  The Mother prioritized PTA meetings and swim meets over the Kai’s care and health.

(4) Failing to seek any medical or other assistance while KK vomited over a 15 hour period and became so dehydrated that KK had to be hospitalized for 2 days and placed on an IV drip.

(5) The Father discovered objects or gauze embedded up KK’s nose.  The Mother failed to communicate with the Father and when she did, but only made unfounded allegations against Rosa.

(6) The Mother’s failure to update the Father on KK’s supplements and medications and generally ignoring the Father in terms of KK’s concerns.  The Mother has accepted medication for KK without informing the Father or checking with KK’s other doctors whether it is harmful to KK and compatible with the medication he is already on, despite the Father imploring her to communicate with him in KK’s best interest on all medical matters. The Father recites many examples of the Mother failing to communicate, refusing to answer questions or respond to emails on important matters in relation to KK’s health, safety, therapies and general well being.  The Father exhibits numerous examples of his emails pertaining to KK’s care that the Mother did not answered.

32.  The Father says that the Mother has bad history with domestic helpers and that the Mother cannot care for the children without assistance. However, the Mother is unable to maintain a domestic helper for a sustained period.  Her treatment of the helpers and inability to establish a good working relationship with a helper has been and continues to be to the detriment of the children’s interests.

33.  The Father also considers that KK, being autistic, needs as much consistency as possible.  It is unfair to KK to be subject to ever changing helpers.  And it is impossible for a helper to learn how properly to assist with KK’s special needs in the limited time any helper is employed by the Mother.

34.  The Mother has been uncooperative, refused to communicate and been dishonest with regard to her situation and helpers.  The Father as joint custodian is entitled to know who is living in the same household as and taking care of his children. At the hearing on 30^th September 2011, the Mother agreed to provide a copy of the contract of her then current helper within 7 days.  This Court then made an order that the Motherdo within 7 days provide a copy of her current Domestic Helper’s contractto the Father.  The Mother wilfully breached the Court Order dated 30^th September 2011 and failed to disclose the contract of her alleged helper.

35.  The Father’s relationship with AK has been damaged by the Mother as he believes that the Mother has continued to actively alienate AK from the Father.

36.  The Father’s new firm is an American firm with different entertainment policies and is more family orientated than his previous company.  The Father often leaves work at 5pm-5.15pm.

37.  The Mother’s unwillingness to communicate and co-parent makes joint custody unworkable under the current circumstances when the Mother has care and control.

38.  The Mother refused to tell the Father the home telephone number of his children.  The Mother gave AK a Blackberry without prior consultation.  The Father considers this was inappropriate for a 9 years old girl (as she then was).  The Mother refused to give the Father the phone number for AK’s Blackberry.  At the hearing on 30^th September 2011 the Mother agreed to provide the number and the Father undertook to pay the costs until trial.  The Court Ordered that the Mother do within 7 days provide the Father with the home phone number and upon the Father’s undertaking to settle the costs of the mobile telephone calls made by AK, excluding long distance calls, for the period from today until the trial, within 7 days following the production of the relevant receipts from directly to the Father, the Mother do provide the Father with AK’s mobile telephone number.

39.  However, AK’s number was not provided with 7 days or at all.  The Mother also breached the Order to provide the home phone number within 7 days, so by 7^th October 2011.  The Mother’s solicitors on 25^th November 2011 have now finally provided the home number. 

40.  The Mother gave a Blackberry to AK who used the same to spy on the Father for the Mother. The Father noted AK sent the Mother a text “the fat guy has returned” which she was keen to hide from the Father.

41.  The Father said that the Mother reinforces negative perceptions of the Father by using the word “kidnapping” by him.  On one occasion the Mother said AK did not want the Father to drive her home because she was afraid he would “kidnap her”. 

42.  The Mother has not kept the Father informed of parent-teacher meetings or included or updated him in any matters with regard AK’s school, not even her HKJS reports.

43.  The Mother’s failure to co-parent and communicate with the Father extends to decisions on AK’s extra curricula activities.  This includes the Mother’s unilateral decision to enrol AK in EPIS.  The Mother’s failure to inform much less consult the Father includes details of her arrangements for AK attending EPIS.  It appears that EPIS is a crammer school or a Japanese speaking tutorial centre to further children’s studies in Japanese schools.

44.  The Father relies on various reports prepared by Dr Levy. One of the major concerns for Dr Levy is that AK is so negative about the Father and how badly polarized AK became. The Father says that if he is granted care and control of the children, the children’s paternal grandparents have agreed to come to Hong Kong for an interim period and would also help at any other time if required.  The paternal grandfather is an anaesthesiologist registered medical practitioner. The paternal grandmother was a school teacher. 

45.  The Father considers himself being more than capable of looking after the children with the help and back-up from Rosa.  The grandparents’ assistance will ensure 24 hours of family care for the children and they could provide some counsel to the Father caring for the children.

Mother’s case

46.  The Mother initially represented herself in the children matters because she could not afford substantial sum of legal costs.The Mother instructed her former solicitors, Messrs Chaine Chow & Barbara Hung (“CCBH”) sending the letter dated 4^th November 2010 to the Father’s solicitors, Messrs. Hampton, Winter & Glynn (“HWG”) informing them that she did not want CCBH to make any reply on children matters unless specifically instructed by her to do so. The Mother filed the Notice to Act in Person on 10 December 2010 and is only subsequently represented in the children matters by Messrs Massie & Clement until 21 October 2011.

47.  Mr Clough, Counsel for the Mother, submitted that the Father has never accepted the CA Judgment.  He was aggrieved at the decision and intended to seek leave to appeal to the Court of Final Appeal.  He blames lack of finance for the reason that he did not pursue this but has spent far more seeking the same result by this different route.

48.  The Father has relied on allegations that were conclusively determined by the Court of Appeal in the CA Judgment.

49.  This Court should discourage re-litigation of the same matter under the guise of new circumstances having arisen and that the new circumstances have to amount to such a significant change as to require the Court to intervene.

50.  The Mother says that she stopped working before the birth of AK.  KK slept with her from his birth until 8^th June 2010.  She has been the children’s primary caretaker since their birth apart from the brief period from 8^th June 2010 until 2^nd September 2010 when she was given leave to appeal and there was a stay granted pursuant to the Order dated 8^th June 2010.

51.  Mr Clough submitted that AK has constantly stated her preference to be with the Mother. A full-time mother is to be preferred to a working father. The Father’s child care plan depends heavily on third party caregivers, such as his own aged parents and the domestic helper, Rosa. Obviously, a natural parent is to be preferred over a third party caregiver, however good the third party caregiver may be.  

Analysis and Discussion

AK

52.  For the purpose of the present application, I consider it will not be necessary for this Court to resolve each and every issue in dispute, especially some of which are insignificant.  I would first deal with the issue of alienation in respect of AK.

53.  The Order dated 31^st May 2011 provides, inter alia, that:

“Dr. Levy, the child psychologist previously appointed by the Court do make a further assessment and if necessary provide therapy to the child of the family namely AK, a girl born on the 7^th March 2002 and submit a report to assess whether there has been continued alienation by the Respondent and the effect this is having on AK’s relationship with the Applicant Father, and ………….”

54.  The Order dated 15^th July 2011 required Dr. Levy to lodge her report on continued alienation within 21 days prior to the trial.  However due to the Mother’s failure to attend interviews as scheduled, an extension of time had to be sought from the Court.  The Mother failed to make an appointment with Dr. Levy.  Ultimately the Father took out a Summons for an order that the Mother do forthwith make an appointment with Dr. Levy and attend a consultation in order to assist Dr. Levy prepare the report ordered by the Court on 31^st May 2011 and which pursuant to the Order dated 15^th July 2011 was due to be filed by 14^th November 2011.

55.  The Mother eventually made appointments but only on a provisional basis that she may cancel them.  The Mother cancelled two appointments.  Thereafter Dr. Levy’s office tried to schedule appointments but the Mother declined the dates offered.

56.  By an Order dated 7^th November 2011, an extension of time was granted so that Dr. Levy could lodge her report on alienation within 14 days prior to the trial.  The Report was eventually filed on 21^st November 2011.

57.  Dr. Levy has provided the following reports in respect of AK pursuant to the Court Orders:

(1) Psychological Report 11^th May 2009 ;

(2) Education Assessment (Evaluation 21^st, 22^nd September and 10^th November 2009) ;

(3) Psychological Report 4^th October 2010 ;

(4) Memorandum 6^th October 2009 ;

(5) Psychological Report 21^st November 2011(“the 2011 Report”);

(6) Psychological Report 21^st February 2012 (“the 2012 Report”).

58.  In the 2011 Report Dr. Levy says, inter alia, that:

(1)“In essence, alienation occurs when the behavior of one parent causes damage to or undermines the relationship between the child and the other parent.”

“They are often unable to clearly explain why they are rejecting or angry with their parent, and their behavior when with the rejected parent can be inconsistent with their stated negative feelings. This alienation often extends to the friends and family of the rejected parent, and the child may speak negatively about these relatives without providing tangible reasons for their negative feelings.”

“Behavior that leads to alienation of a child from a parent can be active and purposeful, or it can be inadvertent.”

(2)“EVIDENCE OF ALIENATING BEHAVIOR

In light of the above noted behaviors that cause children to be alienated, significant concerns are raised with regard to reports of the Mother’s behavior with AK.  Documents and interviews with both parties suggest that she had repeatedly and consistently engaged in many of these behaviors”

(3)“Characteristics of alienated children

While children can be alienated to different degrees of severity, they do tend to share some common behaviors.”…

“Interviews with AK suggest that she exhibits many of the above listed characteristics. She clearly and repeatedly noted only negative points about her father, grandparents, and the helper, and was notably unable to name even one positive attribute of any of those individuals. However, AK was unable to provide clear reasons for her negative beliefs. She makes only positive comments about her mother and maternal grandparents, and her views are very polarized.”

59.  Dr. Levy particularizes the Mother’s behaviors which she considers are alienating under the following headings:

a) Creating a situation where the child must be rescued

The Mother called the police when the Father was to return the children. She has repeatedly used the word ‘kidnap’.  The Mother stated AK admitted being afraid of police. The Mother repeatedly said AK and KK return from the Father’s access feeling unwell.  The Mother accused helpers of feeding KK poisoned food and improperly caring for the children.  The Mother’s 8^th Affirmation admits that because of her concerns about KK’s safety during the Father’s access, she has told AK to watch KK particularly when KK is only with Rosa. 

b) Secrecy and Spying

The Mother gave AK a Blackberry but refused to give the Father number.  AK also refused. The Father noted AK sent the Mother a text “the fat guy has returned” which AK was keen to hide from the Father. Dr Levy considers that such actions place AK in position of spying on the Father and reporting to the Mother, causing AK to choose loyalties.  The Mother’s 8^thAffirmation admits that she did not talk to AK about the Father often but she had never told AK to spy on the Father or report back to her. The Mother said that she had asked AK to keep an eye on KK but that was not spying on the Father. The Mother accepted that when the Father was late, AK will tell her or when he is not there during the access periods, AK will also tell her but the Mother did not ask AK to tell her these things.  The Mother seems to concede that she does not stop AK from doing so.

c) Criticism of Father by Mother

The Mother’s email to the Father raised AK’s complaint against him goingout to drink and not return until 1am.  Dr Levy said that child at AK’s age unlikely makes such comment independently even if she was aware of the Father’s outside activities.  Dr Levy was of the view that instead of attempting to correct any negative impact on father and child relationship, the Mother just took AK’s word and criticized the Father.  The Mother’s 8^th Affirmation admits that she knew AK often calls him ‘Debu’ which means ‘fat man’ and that it is not polite, but it is not a cuss word and she do not encourage AK to use it.  The Mother again seems to concede that she does not stop AK from doing so.

d) Obstructing access

Dr. Levy considers that the Mother has not denied access but is consistently late for pick-up or drop-off.  The Mother repeatedly made last-minute changes to meeting point causing confusion and stress.

e) Scheduling activities during access

The Mother unilaterally enrolled AK in tutorial and extracurricular activities that coincide with the Father’s access. The Mother refused requests to rotate access so the Father has free time with AK.

f) Inappropriate discussions with AK

(1) The Mother’s emails to the Father show the Mother has discussed with AK a variety of issues that, Dr Levy considers, are not appropriate to a child at her age. The Mother discounted the Father’s views on long term educational planning, stating instead that AK will choose the type of school she will attend (Japanese or American).  Dr Levy takes the view that inappropriate decision for child undermines the Father’s influence in her life.

(2) The Mother’s emails to the Father show the Mother discussed access arrangements with AK in terms of whether she wishes to attend, activities to be planned during access and which days to attend access.  Dr Levy considers that this is inappropriate and creates illusion for child that she actually has a choice in access, therefore placing the burden of choosing between the parents on the child.

(3) Other emails show that the Mother has discussed financial arrangements between the Mother and the Father with AK as she is aware of the Father not paying for tutorial lessons.

g) Lack of communication regarding significant issue concerning the children

(1) Emails show the Mother has repeatedly failed to alert the Father of medical issues of children.

(2) The Mother has attended appointments with doctors without the Father and cancelled the Father’s appointments.

(3) The Father receives no information regarding AK’s school progress or meeting with teachers.

(4) The Mother refused to consider the Father’s views on long term schooling for AK.

(5) The Mother approached the Immigration Department for AK’s visa without informing the Father.

h) AK’s behavior during observation

(1) AK consistently spoke negatively of the Father.  She was unwilling to make positive comments on the Father’s family, friends and helper but does not provide clear or consistent reasons for negativity.

(2) Dr. Levy’s observations of AK with the Father suggest that there is a positive bond between them and that AK was very responsive to the Father, seeking him out to play games with her. She laughed and joked with him and was physically affectionate with him, belying her earlier comments to Dr. Levy that she does not like the Father.

(3) Dr Levy opines that very unusual for children who historically had a good relationship with one parent to be unable to identify any positive characteristics following divorce and that this is a hallmark of alienation.  The bond between parent and child does not dissolve over time. 

60.  Dr. Levy summarises her opinion that:

“There is clear evidence that the mother’s behavior has led to damage in the father/child relationship. Therefore, intervention must be undertaken immediately to repair that bond and to prevent further deterioration of that relationship. While engaging in the ongoing debate about use of the exact terminology and semantics we must not lose sight of the primary focus – a young child’s relationship with her father has been significantly impacted by the behavior of her mother to the point where she has become alienated from (and rejecting of) her father. Regardless of which terminology we use, the primary responsibility continues to be ensuring the emotional well being of that child.”

61.  Dr. Levy’s views and opinion include:

(1)“Taken separately, some of these incidents may not be deemed emotionally detrimental, although when taken together, this pattern of behavior serves to have an active and ongoing alienating effect on AK’s relationship with her father.  Regardless of whether this alienation is purposeful or not, it will have a detrimental effect on the father/child bond if permitted to continue over time.”

(2)“Experts believe that children have the right to a strong relationship with both parents following divorce, and it is each parent’s responsibility to promote the bond between their child and the other party. Behavior that leads to alienation in a parent/child relationship is a form of emotional abuse.  In its mildest form, this behavior fails to promote in AK a healthy adjustment to the divorce and continually polarizes her against her father.  At its most damaging, this behavior will result in ongoing instability in the bond between them and can have detrimental effects to her long-term psychological wellbeing, impacting her well into adulthood and coloring future relationships she may have with partners as well as her own children.”

(3)“One additional point to consider is that some of the current concerns regarding the Mother’s inappropriate and alienating behavior with AK were previously raised in earlier evaluations conducted by this examiner in 2009 and 2010… These behaviors demonstrate that the Mother exhibits a lack of insight regard the impact of her own behavior on AK’s emotional well-being and regarding any need to modify her own behavior.  This suggests that prognosis for development of the level of insight necessary for her to promote a healthy relationship between the Father and AK in the future is poor.”

62.  Dr. Levy offers 15 recommendations as follows:

1. Experts recommend effects of alienated relationship best reversed by additional time with parent. She therefore recommends that this be taken into account in determining contact between AK and the Father in future;

2. AK benefits from spending blocks of time with the Father, particularly over holidays;

3. She considers that the Mother’s alienating behaviors are ongoing and intensified and it is unlikely that the Mother will modify her actions of her own accord. Therefore steps must be taken to ensure AK is protected from the impact of this behavior in the future. Clear expectations to the Mother by Court or AK’s therapist so that she can be fully aware of the damaging effect this behavior has on AK’s emotional adjustment;

4. Make clear to the Mother police presence frightening the children which creates handovers distressing. If she truly concerns the Father’s kidnap, legal channels are suggested rather than calling police at handover as very damaging for the children;

5. The Mother shall not use word “kidnap” where AK may overhear or access (via email). Word significant negative connotations, frightening for children to hear, communicated the Father is a danger to her and will undermine her security;

6. Any adjustment to access arrangements be made only by the adults with no input from the children;

7. Pick-up and drop-off time, place consistent. Formal contingency plan if one parent more than 30 minutes late the children be returned to the Father’s home for later pick-up;

8. Regardless of which parent has care and control, both spend time with AK that is free of scheduled extra-curricular activities and rotate free days;

9. Contact with the Father should not be presented to AK as a choice. Unfair burden on her and responsibility of trying to please both parents;

10. Significant life decisions not to be discussed with AK and she shall not be given a choice at such a young age;

11. Although they cannot co-parent, it is still essential both have input in decisions including at least education and medical, also extra-curricular activities and other matters;

12. Both not to make negative comments about the other in children’s presence. When child makes inappropriate comments, steps must be taken to correct them or they will perceive inaction as a tacit approval;

13. The Mother must be careful of asking AK questions that put AK in a compromising situation. AK may either censor her comments or provide response she feels the Mother wants to hear, both of which can be damaging to her emotionally;

14. It is not AK’s responsibility to ensure KK’s safety and it is imperative that the Mother communicate this to AK to correct any misperceptions;

15. AK continues therapy with psychologist. Therapist should be well aware concerns so can monitor and address. Reversing alienation should be a target for future therapeutic intervention.

63.  Ms Cruden for the Father submitted that the Mother’s behavior has significantly impacted on the father and daughter relationship such that AK has become alienated from and rejecting of the Father.

64.  I consider that the issue of alienation has been discussed and analysed in great detail in §§ 99 to 121, 136, 137, 201 to 206 of the DC Decision. In short, Judge KW Wong took the view that there had been active and going on alienation by the Mother and that if care and control were granted to the Mother, she would unlikely promote AK’s relationship with the Father and there is a risk that the relationship between the Father and AK continuing to deteriorate. These are the main reasons for Judge KW Wong to order sole custody to the Father.

65.  Ms Cruden appearing for the Father further submitted that the CA Judgment did not deal with alienation at great length and that Hon Rogers VP postulated other possible reasons for AK’s behavior as follows:

35. In coming to the conclusion that the children AK’s distinct preference for being with her mother and her reluctance to be with her father was the result of the respondent’s deliberate attempt to alienate her daughter from the father, the judge failed to consider that was in all likelihood partly the inevitable effect of AK being with her mother who was at home for her, whilst her father’s working and socialising habits left little time for him to be at home and partly that this was natural for any child and, in particular, a girl.  In any event, as pointed out earlier, Dr Levy recommended therapy to repair the bond of daughter and father.  Dr Levy did not recommend AK should be separated from the respondent.  In fact she accepted that AK would suffer if separated from the mother.

66.  In my view, Hon Rogers VP has implicitly (though not expressly) overturned or reversed the finding of the Mother’s alienation made by Judge KW Wong in the DC Decision. That is to say, the Court of Appeal found no alienation by the Mother based on the evidence given at the trial before Judge KW Wong. I must accept that is the finding by the Court of Appeal based on the evidence given at the trial before Judge KW Wong and I have no reason to disturb such finding of facts or retry them afresh.  I think that if the Father is dissatisfied with such finding by the Court of Appeal, he has to appeal to the Court of Final Appeal.

67.  Concerning the Order made by Judge KW Wong on 31^st May 2011 which provides, inter alia, that Dr. Levy do make a further assessment and if necessary provide therapy to AK and submit a report to assess whether there has been continued alienation by the Mother and the effect on AK’s relationship with the Father, I observe that it was made at the hearing when the Mother was acting in person.  I must emphasis the improper use of the words “continued alienation” in the Order which means and is based on the assumption that there has been alienation by the Mother on AK’s relationship with the Father.  I am of the view that it is obviously contrary to the finding of no alienation in the CA Judgment.  If there is no alienation, how it can be continued. It is understandable that according to the DC Decision, Judge KW Wong entirely accepted Dr Levy’s opinion regarding alienation. Therefore, it is logical for Judge KW Wong to re-appoint Dr Levy.  If Dr Levy is appointed again as expert to prepare the report, she will highly likely find alienation or continued alienation.  In my judgment, to be fair to the Mother, another single joint expert shall be appointed rather than re-appointing Dr Levy.

68.  Nevertheless, as custody proceedings are not static but continuing, I shall not stop here and still have to consider what had happened afterwards to see if there is sufficient evidence for me to find alienation of AK from the Father by the Mother.  I need to consider the 2011 Report prepared by Dr Levy but with great caution.

69.  It is not disputed that AK who is now 10 years old has shown and still shows strong attachment to the Mother. Based on the evidence before me, I have no doubt to find that her attachment to the Mother is much stronger than that in 2010 when AK was only 8 years old. The fact that AK shows stronger attachment and preference to the Mother than the Father, in my judgment, can hardly be disputed.  Hence, the issue is whether the reason for AK’s stronger preference for being with the Mother was the result of the Mother’s subsequent behaviours, which happened after the DC Decision.

70.  I now consider the incidents which Dr Levy regards as the Mother’s alienating behaviors. First is AK’s use of Blackberry for the alleged spying.  I accept the explanation of the Mother that she has never told AK to spy on the Father with the Blackberry but just asked AK to keep an eye on KK. It is understandable that the Mother concerns KK’s safety very much during the Father’s access, especially if the Father left AK and KK with the helper Rosa.  The Father is well aware of the fact that the Mother does not trust nor has good relationship with Rosa.  Hon Rogers VP clearly said in the CA Judgment as follows:

36. The next observation that can be made is that the judge clearly overlooked the way in which the respondent [the Mother] was treated by the applicant [the Father], the applicant’s parents and, indeed, at least Rosa as well.  In this respect, it would appear that Rosa was not merely protected by the applicant but actively encouraged to be confrontational towards the respondent.  The applicant was quite clear in his evidence that he preferred Rosa to his wife and he trusted Rosa and not his wife.

37…………

39.  It is quite clear that the applicant has been provocative, to say the least towards the respondent.  When Rosa was cross-examined she was asked about an e-mail that the applicant had sent to the respondent in November 2008.  That read:

“So from today, you can expect that any time you are with the helpers that you will be recorded until further notice.”

40.  Rosa confirmed that she had been given a tape recorder and told to record anything that she thought was necessary.  It has to be said that Rosa was given quite unusual treatment by the applicant in other respects.  Not only was she paid $8500 per month, which was well above the normal wage for a Filipina maid, which the applicant acknowledged but put down to Rosa being able to drive a car, but she was given a Blackberry and also had the use of a supplementary Platinum American Express card.  Whilst Rosa denied that that card had ever been used for anything other than paying for petrol, the applicant confirmed in his evidence that it had been used for other things.  Clearly taking all these matters together, the picture emerges of the applicant enlisting the wholehearted support of Rosa to assist him, as far as possible, in his dispute with the respondent.

41.  Should there be any doubt that Rosa had clearly taken sides a long time ago, in an antagonistic way, against the respondent, reference only has to be made to an e-mail which Rosa sent to the respondent on 18 September 2009.  The contents and tone of that are such that in any household in which the employer, namely in this case is the applicant, had any respect for his wife, even if in the throes of divorce, the maid would be dismissed on the spot.(emphasis added)

71.  Despite the above clear indication by Hon Rogers VP for dismissal of Rosa, the Father still chooses to retain her to take care of AK and KK up to now and does not explain why he has to insist to hire Rosa.  I must say that it certainly makes his relationship with the Mother even worse than before.  In my view, the Father has himself to be blamed.

72.  With regard to the incident of AK’s sending a text message to the Mother that the Father had gone out for drink and did not return until 1am, the Father did not expressly deny such incident or made explanation in his affirmations. Although it is difficult to tell how a 9 years old girl can know whether the Father was going out for drink, I am sure that AK is capable enough to tell the time the Father went out and returned.  If that is the case, I doubt very much as to why the Father had to go out and left the children with Rosa during the access period since he is supposed to treasure the access time.

73.  I share with the view of Dr Levy that it may be improper for the Mother not to stop AK from the so-called “spying”. Nevertheless, I do not consider that the Mother’s motive of doing so is to alienate AK from the Father. In this kind of highly conflicted relationship between the parents, one can hardly expect that the parent who has care and control would be very eager to promote the bondage between the other parent and the children. For instance, after the DC Decision, the Father then applied to seek a court order to exclude the Mother from access to the children.  Hon Roger VP had the following comments on the Father in CA Judgment:

9.  ………  Furthermore, the judge appears to have ignored the obvious indications that the applicant [the Father] was at pains to exclude the respondent [the Mother] from contact with the children.  Very importantly, the judge dismissed AK’s clear wish to be with her mother, as something that she would get over.  The judge seemed to have taken the view that by giving custody, care and control to the father, AK will eventually be forced to change her affections.

……………………………

37. It is difficult to understand how the judge could say in paragraph 237 of the judgment:

“I believe that the Father is a person who is more willing to make compromise and facilitate a relationship between the children and the Mother.”

      The applicant [the Father] has not shown any indication of wishing to be conciliatory tothe respondent [the Mother] or of trying to include the respondent in the lives of the children.  Indeed, after the judgment on 8 June 2010 he then sought a court order to exclude the respondent from access to the children.  In paragraph 13 of his affidavit sworn on 8 July 2010 the applicant said:

“I believe that I need a prolonged period of time with the children, away from theRespondent, to establish a comfortable, stable and trusting home. I believe that Rosa will be acquitted of what I consider to be a false accusation and that, as soon as she is able to have contact again with [AK], we will be able to get on our lives without the Respondent interfering with us.”

38.  It has to be borne in mind that an affidavit is not made in the heat of cross-examination in a court, but is made in the comparative calm of an office with legal advice.  I do not consider it necessary to examine the details of the incident which the applicant considered justified the application to exclude the respondent from contact with the children, suffice it to say, it is by no means clear that the fault lay with the respondent, who had been trying to take AK to the hospital when she had a fever but was physically prevented from doing so by the applicant’s mother.(emphasis added)

74.  Concerning the incident of calling of police when picking up the children and use of the word “kidnap” by the Mother in her emails, I am of the view that it is inappropriate conduct on the part of the Mother, which shall be avoided in the future.  In view of the long history of the extremely acrimonious relationship of the parties, the aforesaid conducts of the Mother though improper are expected.  The Mother admits that AK calls the Father “Debu” which means “fat man”.  I agree that it is not polite but I accept the Mother’s explanation that she does not encourage it. 

75.  The Father also complains that the Mother has continually obstructed access and also scheduled activities for AK during his access so the Father and AK cannot enjoy that time together. I consider that one of the way to resolve this problem is that the Father shall seek an Order to restrict the activities for AK during his access unless with the consent of the parties or approval of the court.

76.  I do not think that I have to go through all the other incidents particularised by Dr Levy.  Taken all of them together, I agree that the Mother did not do anything actively to alienate the relationship between AK and the Father. Rather she simply did nothing to repair the damage between them or to maintain their bondage.  I do not consider that it shall be a good reason to vary the Joint Custody Order. In fact, it is quite a common phenomenon in the divorced couple whose relationship is high conflicted and acrimonious.  I disagree that the Mother’s behaviors have an active and ongoing alienating effect on AK’s relationship with the Father.

77.  Even if I order to grant care and control of AK to the Father, I do not think AK will eventually be forced to change her affections as said by Hon Rogers VP earlier.  Ms Cruden for the Father submitted that according to Dr Levy’s expert opinion if care and control of both children went to the Father and the Mother had access, including staying access, it would not be damaging to AK as long as AK is able to spend a good amount of time with the Mother and continue that relationship.  I note that nowhere in the 2011 Report suggests that Dr Levy is fully aware of the earlier application of the Father to exclude the Mother from access to the children. Accordingly, I do have great reservation with Dr Levy’s opinion in this regard.

78.  Dr Levy further opines that the pattern of the Mother’s behavior will have a detrimental effect on the father and child bond. She said that the research is very clear that children who do not have strong relationship with both parents following a divorce tend to have a lot more psychological issues as they grow up.  On one hand, I agree that it will certainly have some negative effect on AK.  On the other hand, it seems to me that Dr Levy fails to tell the Court exactly what these psychological issues are and how detrimental they are.  Her opinion in this regard is too general. Indeed, it is understandable that it may be very difficult to answer these queries.

79.  One of the 15 recommendations of Dr Levy is that the effects of alienated relationship can be best reversed by additional time with the Father. Therefore, in my view, apart from making application for variation of custody or care and control, the Father can simply ask for more defined access with AK so as to strengthen their relationship.  In any event, Dr Levy’s opinion is only one of the matters which I have to consider and I am not bound to accept all her opinion. I need to consider all other relevant matters, in particular the reports made by the Social Work Officer.

80.  The Social Work Officer, Ms Chow Hau-wan, has given 5 reports on this family, namely:

(1) Social Investigation Report 19^th January 2009;

(2) Further Social Investigation Report 23^rd September 2009;

(3) Progress Report 28^th September 2010;

(4) Social Investigation Report 12^th May 2011;

(5) Updated Social Investigation Report 14^th November 2011 (“the Updated SI Report”).

81.  The main remarks and observations concerning AK made by Ms Chow in the Updated SI Report are set out as follows:

§30 “………………….The parenting style, pattern of communication and interaction as well as the quality time with the children are the main factors affecting the parent child’s relationship. The difficult parent child relationship or interaction may not be attributed mainly to alienation. Since the parents have high conflicted relationship that have dissatisfaction towards each other. AK used to be taken care of by the mother since birth and she had more topics to share with the mother.  It was inevitable for her to side with the mother”

§31 “……………….The Investigating Officer views that it would be more suitable to keep the present status quo of AK to be under the care and control of the mother, so as to minimize the impact of further changing of her care arrangement.”

……..

§37 “………………..As the father has already shared AK’s time with the mother on a considerable level for maintaining the father-daughter relationship and AK has been well adjusted to the present access schedule with the father, it would be better to maintain the present access arrangement.”    

§38 …………………  Unlike AK who had shown strong preference to stay with the mother, KK may stay at the father’s home until next school day in weekdays.”

82.  Ms Cruden for the Father submitted that Dr Levy’s Report was not available when Ms Chow completed her Report.  She knew that Dr Levy would be reporting on alienation.  Regardless, she decided to give her lay person opinions on alienation.  Despite ignorance of the content of the Report and this significant information in respect of AK, she nevertheless proceeded to give her personal opinion and recommendation that the Mother shall retain care and control of AK.

83.  I accept the submission of Ms Cruden for the Father that the role of Ms Chow is to assist the court by informing the court of factors which the court would otherwise not know and as “the eyes and ears of the judge outside the courtroom”to report back on factors observed. Hence, I shall mainly focus on the investigations and observations made by Ms Chow rather than her recommendations in the Updated SI Report which are for the court’s reference only.

84.  Ms Chow confirmed AK continued to receive psychological service from Dr Iris Chau on Saturday mornings as arranged by the Father for her emotional and psychological well-being.  Dr Iris Chau is AK’s psychologist and therapist.  I certainly accept that in the best interest of AK, she shall keep on receiving professional service from Dr Chau with a view to repairing the bond with the Father and to monitoring the psychological change of AK, if any.  In my judgment, the continuous therapy provided by Dr Chau to AK is helpful and will have positive effect on repairing their relationship. I would further suggest not just AK to receive psychological service from Dr Chau but also both of the Father and the Mother to attend some co-parent counseling from suitable counsellor without further delay for the best interest of the children.

85.  I accept the observation of Ms Chow that both the Mother and the Father are capable parents but AK has better attachment to the Mother. Ms Chow also makes a very important point, namely the present status quo of AK under the care and control of the Mother shall be maintained.  Ms Chow went on to say that AK used to be taken care of by the Mother since birth and she had more topics to share with the Mother.  Hence, she took the view that it was inevitable for AK to side with the Mother. I consider that it is a very logical and sensible observation because AK is all along residing with the Mother except for a short period of time after the DC Decision which ordered the sole custody of AK to the Father. Besides, the Mother is a full time house-wife whereas the Father is busy at work with not much time at home as found by Hon Rogers VP in the CA Judgment. The Father said that he has subsequently changed job and is now often able to leave work at 5 to 5:15pm.  I consider that change of job which only occurs recently would not have much significance.

86.  Ms Chow also opines that the Father needs a helper to assist him to take care of the children and that the Mother also needs a helper to help her taking care of the children and household chores. Ms Cruden for the Father submitted that the Mother is incapable of maintaining a good working relationship with a helper and has a history of being unable to keep helpers.  I consider that such submission has very little weight as it has been discussed in the DC Decision and the CA Judgment．

87.  In my view, as the Father is a very successful career man working at least 9 hours a day, it is necessary for him to have a helper to look after the children. However, for the Mother, as she is a full time mother and recently hires a driver, I accept that it is not a “must” for her to employ a helper. Although nowadays in Hong Kong, it seems hiring a foreign domestic helper is very common, I am of the view that heavy reliance on the helper by the parents may not be in the best interests of the children.

88.  In my judgment, the Father is loving parent. However, he is heavily dependent upon the helper Rosa when he is working.  Although the Father trusts Rosa very much and satisfies with her performance, she remains a hired foreign domestic helper who may suddenly resign for whatever reason in the future by giving 1 month notice or even no notice.  She cannot substitute for a mother.

89.  The Father concedes that although his parents have previously offered assistance and are willing to come back to Hong Kong, the Father cannot afford large enough accommodation to accommodate them all comfortably with separate bedrooms long term due to his financial constraints.  Accordingly, should the Father be granted care and control of the children, they will be looked after by Rosa most of the time.  In the best interests of the children, I cannot see how a helper is better than a full-time mother.  Furthermore, if I am going to allow very generous access to the Mother every day due to the strong attachment of AK to her and the Mother being a non-working woman, it seems to me that her conflict with Rosa will be unavoidable and likely be increasing. It is obviously not in the best interest of the children if a lot of confrontations between the Mother and Rosa happen in front of the children.

90.  The Father complains that the Mother has not abided by the Joint Custody Order and the other Orders of the Court which she does not agree with and she will continue to disregard these Orders.  I accept that the Mother has been in breach of some of these Orders. In my view, instead of applying for variation of custody, care and control of the children, the Father shall take out committal proceedings against the Mother for contempt of Court. The Mother will learn the serious consequence of non-compliance with the Court Orders if the Court is satisfied that she is in willful breach.

91.  Regarding parenting coordinator, the parties have tried one called Ms Becky Tang. But the Father decided not to continue to use her services and would prefer an alternative coordinator. The letter of 2^nd November 2010 from HWG states that the Father will only agree to use the services of a parent coordinator if it is understood by all concerned that those sessions are entirely confidential. Ms Cruden for the Father submitted that he in the meantime proposed that the parties shall communicate directly and if necessary through their solicitors.

92.  I disagree with the present proposal of the Father. It is totally unworkable if the parties are required to communicate directly due to their highly emotional and conflicted relationship. If they shall communicate through their solicitors for each and every children issue no matter how trivial it may be, it will be not only extremely expensive but also very inefficient and ineffective due to the time taken by the solicitors from their own clients for instruction.  I entirely accept the early suggestion of the Father for an alternative coordinator with full understanding of confidentiality.  I agree that a new parenting coordinator could not be a panacea as submitted by Ms Cruden but certainly, it is a sensible and reasonable course to alleviate their highly conflicted relationship. Such a parenting coordinator shall in ideal case have expertise in providing service of co-parent counselling to the parties. In the long term, I believe that the parties will be benefited and somehow they will learn in the future how to co-operate in relation to the children issues.

93.  I consider that the Court shall not just grant a joint custody order and hope that the parties will then know how to co-operate themselves. The Court may have to direct the parties to attend certain minimum hours of co-parenting within a specified period of time provided by a qualified counsellor.  I understand that there will be a forthcoming new Practice Direction concerning Children’s Dispute Resolution, in which the Court may give such a direction that the parties do attend counseling, a parenting course and/or mediation and that a parent coordinator be appointed.

94.  In the meantime before the implementation of this new Practice Direction, I invite the parties to give the Court mutual undertaking to attend co-parenting course and counseling service provided by the Social Welfare Department or any qualified counsellor they consider suitable.

95.  To sum up, I am not satisfied that the incidents particularised by Dr Levy are sufficiently to prove alienation of AK from the Father by the Mother.  Even if there are some improper behaviours of the Mother can be regarded as alienation, I still consider that in the best interests of AK, her care and control shall be granted to the Mother. Granting of AK’s care and control to the Father may not necessarily repair their relationship or remedy the issue of AK’s rejecting the Father. In my view, there are some other constructive ways to tackle the said problem. For the 15 recommendations made by Dr Levy, I entirely accept that they are all very helpful for the purpose of repairing the damage between the Father and AK and maintaining their bondage.  I hope that with the benefit of the proper legal advice by her solicitors and Counsel, the Mother would be more co-operative so that they can be implemented without delay. If necessary, this Court will consider making orders for implementation of the said recommendations.

KK

96.  The brief present condition and observations of KK can found in following paragraphs of the Updated SI Report, in which Ms. Chow said:

§32  “KK’s needs are beyond the parental care and company.  He needs special training, personal and medical care.  The mother, the father and his stable helper are able to provide suitable care for KK.  The parents have given adequate attention to the health condition of KK and arranged him to receive medical consultation appropriately despite the father does not agree on the mother’s pace and handling of KK’s medical condition.”

§33  “The parents are also very concerned about the training needs of KK and they have put him in the APS for over two years.  Yet, the custody disputes have hindered the progress of KK as revealed from the conditions faced by the APS.  It is noted that the APS has spent much time to be familiar with KK’s health, his medical condition, the parents’ care arrangement and the parental cooperation matters.  Unless the new school can provide the training package which is more suitable for KK and carry out the important training needed by KK for the time being, i.e. toilet training, immediately after his admission, it would be desirable for KK to be trained by the same training provider in a stable and suitable environments continuously.”

§35  “If the parents are unable to work together and draw strengths of each other to work for the best interest of KK, it would be better to have one custodial parent to be responsible for making the major decision on KK’s medical, education or training matters so as to minimize future arguments in working with the school and to speed up the training arrangement.  The father has advantages on the matter as he has timely response and better communication with the medical and training professionals and personnel.”

§36 “It would be an ideal arrangement for AK and KK to be under the care of the same parent at one time for the maintenance of sibling relationship and their social development.  However, it is noted that the developmental distance between AK and KK became great when AK grew up.  AK and KK need different care, training and parenting.  There are signs that AK has voluntarily tried to take up the carer role when she has staying access with the father.  It poses pressure on her and is not desirable for her age.  As such, the custody and access of AK and KK can be considered separately.”

§37  ……..

§38  KK’s access will depend on the decision of his coming training arrangement.  The present access arrangement can be continued pending particular training for KK.  Unlike AK who had shown strong preference to stay with the mother, KK may stay at the father’s home until next school day in weekdays.”

97.  Ms Chow recommends split care and control of the children, namely care and control of AK to the Mother and that of KK to the Father. However, both the Father and the Mother oppose such recommendation. In my view, Ms. Chow should have realized that she had discharged her duty by providing all the information available to her to assist the Court but she should have refrained from making any recommendation where she clearly should not have done.[8]  Before she considers such recommendation, she shall at least seek the views from both the Father and the Mother or even AK although not necessary from KK. She obviously fails to do so. Her recommendation must, in those circumstances, be highly suspect.

98.  Ms Chow realised that it would be an ideal arrangement for AK and KK to be under the care of the same parent at one time for the maintenance of sibling relationship and their social development. However, she said that AK has not voluntarily tried to take up the carer role for KK but just the Mother has told her to do so.  Ms Chow reports that this poses pressure on AK and is not desirable for her age.  Therefore Ms Chow says the custody and access of AK and KK can be considered separately. I disagree that is a basis to split siblings.  In my judgment, all children have different development due to age, personality and abilities and each child benefits from those differences in the other.  Sometimes, a mature elder sister is willing to assist the parents to look after the younger brother.  More importantly, Ms Chow simply ignores the wishes of all the parties.

99.  Dr Levy is of the view that siblings shall be kept together. Her opinion is that:

“the message that it would send to AK if her sibling went to dad and she had to stay with mum, given that the relationship between the father and child is already somewhat strained, I worry that that would just solidify it further because she would feel perhaps some issue of abandonment or rejection. Why would – why – in her little 9-year-old mind, it would be very difficult to understand perhaps that it was not dad’s decision, but also that why would my brother go and not me and why wasn’t it the other way around? All of these things are very difficult for a child to grasp”

100.  Dr Levy explained that:

“the message it would send for her[AK] to be separated from KK, if KK was the one with dad, if it was reversed and KK was with mum and AK was with dad, I wouldn’t be so worried about the impact because it’s the relationship with dad that’s strained, not the relationship with mum”

101.  I accept the opinion of Dr Levy in this regard. Accordingly, I consider that split care and control is not appropriate in the circumstances.

102.  Concerning KK’s medical issues, the Father takes the view that the Mother was discourteous to and unable to properly deal with the medical professionals and acted against KK’s best interests.  For instance, the Mother had failed to provide KK’s school with his valium suppository following his seizure and delayed to take KK to see a doctor when he had vomited for a long period and dehydrated.

103.  I accept that the Mother has still a lot of room to improve herself with regards to taking care of KK. Nonetheless, I am of the view that she is a loving and devoted mother though not perfect.

104.  As regards the parties’ different opinions to the medical treatment of KK, Ms Cruden for the Father rightly pointed out that this application is not to determine which doctor KK should be consulting and what medication should be prescribed or therapy should be undertaken. Nor is it to determine which school is best for KK. If the parties were not agreeable to KK’s treatment, medication, therapy or education, any of them may make an application to the Court for determination.

105.  The Father further complains about the Mother’s breach of the Order dated 23^rd February 2011 for KK to receive ABA therapy after school at APS on Monday and Wednesday.  KK could not receive the ABA because the Mother refused to consent.  As mentioned above, the Father shall consider taking out committal proceedings against her for contempt of court. Changing custody may not be the best course to deal with the problem.

106.  The Father says that the Mother’s unilateral unreasonable decision to withdraw KK from Autism Partnership School (“APS”) without the Father’s consent. The Mother says she made it clear to Ms. Man, Principal of APS and the Father that she was exploring other options and minded to select Hong Kong Junior School (“HKJS”).  KK was not able to start HKJS immediately and may only have a secured place to start attending by March 2012.

107.  Although I agree with the Father that the Mother should keep KK’s place at APS until she and the Father agreed and secured an alternative school for KK to transfer to, I can see some miscommunication with Ms. Man, Principal of APS from the email correspondence between them, which leads to this undesirable result.

Welfare checklist

108.  Now, I will go through the welfare checklist which I have mentioned earlier. It is a very helpful reference to check if particular matters have been considered.  It is also said in Rayden[9] that while there is a duty to have regard to the checklist, judges are entitled to have it assumed in their favour that they will do so, without subjecting them to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one, and that the factors in the checklist are not exhaustive of the matters to which the court may have regard.

The ascertainable wishes and feelings of the child

109.  The Court has regard to the ascertainable wishes and feelings of the child in light of her age and understanding.  How far the wishes and feelings of the child should be a determinative factor varies depending on the circumstance of the particular case. I have to assess whether the child is of an age and understanding sufficient for their opinions and wishes to be given any weight at all.  Although AK is not a teenager, I take the view that she is able to understand sufficient her wish to be with the Mother. As KK is an autistic boy, he is unable to express his wish.

Physical, emotional and educational needs

110.  The Court must have regard to the physical, emotional and educational needs of the child. In my view, both parties are capable parents and able to look after these needs of the children. For the emotional needs of the children, I consider AK has such need to reside with KK.  Unless there are strong features indicating a contrary arrangement, siblings should wherever possible, be brought up together.  Where there is an available and satisfactory home together with one parent, the Court should endeavour to allow the children to be together in that primary home. I consider the fact that the Mother may unduly request AK to take up the carer role when they have staying access with the Father shall not be a reason to separate the children in this case.

111.  That is the reason why I have already determined split care and control inappropriate earlier.

Likely effect on the child of any change in his circumstances

112.  Unless the present status quo is very unsatisfactory, the Court is usually reluctant to change it. I do not think that the present status quo is not satisfactory. Especially for AK, if her care and control are changed from the Mother to the Father, there must be some adverse effect on AK due to her strong attachment to the Mother.

Age, sex, background and any characteristics of the child which the court considers relevant

113.  While I accept that there is no presumption or principle that a mother should have the care of young children, the advantage to a very young child of being with his mother is an important consideration which must be taken into account by the Court.

114.  The age, sex and characteristics of AK and KK should be taken into account. KK’s delayed development and vulnerability by reason of his autism are in fact a consideration too.  As they are all so young, I am of the view that advantage of a mother over a father should prevail, especially in this case where the Father heavily relies on the helper Rosa.

Upbringing by the parents

115.  I am of the view that as both parties have very high educational background, they possess the necessary skills and ability to discipline and guide the children.

Racial origin and cultural and linguistic background

116.  The racial origin and cultural and linguistic background of the child are relevant considerations to which weight should be given in assessing the welfare of the child.

117.  The Father complains that the Mother has promoted AK’s Japanese linguistic background at the expense of her English (American) and Chinese linguistic background. In addition to receiving a Japanese education in the Japanese language, the Mother makes AK go to the Japanese EPIS after school and on Saturdays rather than English and Chinese lessons. The Father considers that the Mother has exhibited racism and cultural intolerance. With respect, I disagree.  In my view, it is quite natural for a Japanese mother to do so especially when AK is strongly attaching to the Mother.

Any harm the child has suffered or is at risk of suffering

118.  The Court must have regard to any harm the child has suffered or is at risk of suffering. I do not think that there is sufficient evidence to establish any harm and risk of harm which the children have and will continue to suffer with the Mother.

How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs

119.  I am of the view that both parties are undoubtedly capable of meeting all of both children’s needs. Although the Mother cannot keep a domestic helper, she has employed a driver addressing the transportation issue. The Father on the other hand depends too much on the helper Rosa in respect of the daily care of the children when he is at work. The helper is not a substitute for a parent and cannot meet all of the children’s needs.

120.  Ms Cruden for the Father submitted that the evidence shows that a joint custody order in respect of KK is unworkable since he is extremely vulnerable and there are many third parties who are critical in providing for his medical, educational and treatment needs.  The doctors, teachers and therapists need fast and clear instructions so that they can meet KK’s needs.  In my judgment, in case there is urgent medical issue to be decided upon KK, the parties shall first have a very serious discussion with all relevant experts or seek second opinion, if necessary. Failing which, the Father may make urgent application to the Court for determination. I think that joint custody order of the children is still workable which is in their best interests and the adverse consequences do not far outweigh the benefits that it may bring. 

CONCLUSION

121.  Having carefully considered all the relevant circumstances, I see no reason to vary the Joint Custody Order. Given the nature of this dispute, I make an order nisi that there should be no order as to costs[10]. To sum up, I make an order as follows:

(1) Paragraphs 1 and 2 of the Summons dated 19^th May 2011 and the Summons dated 28^th November 2011 be dismissed;

(2) Order nisi that no order as to costs in respect of these Summonses which shall become absolute unless any of the parties apply to vary the same within 14 days.

122.  Last but not least, I would like to take this opportunity to thank Counsel of both parties for their helpful submissions and assistance in this case.

FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 151 OF 2008

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

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

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

 REASONS FOR DECISION
(Leave To Appeal)

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

1. The Respondent Mother took out two summonses both of 28^th June 2010 seeking respectively leave to appeal against my decision made on 8^th June 2010 and for stay of execution of the orders therein made, pending appeal.

2. After hearing counsel Miss Anita Yip appearing for the Mother and Mr. David Glynn, solicitor for the Applicant Father and reading their respective written submission as well as parties’ affirmation/affidavits, I dismissed both applications at the hearing with costs reserved. I indicated that brief reasons would be handed down later, which I now do.

Brief Background Post-judgment

3. On 8^th June 2010, I handed down a written decision granting sole custody of the two children of the family to the Father with generous access, including visiting access and staying access, to the Mother. It is this decision of the Court that the Mother is now seeking leave to appeal and to stay.

4. By another application of the Father on 7^th July 2010, the Father asked the Court to suspend the Mother’s access to the children, relying on an unhappy incident which took place on 2^nd July 2010. The children’s paternal grandmother and the domestic helper were allegedly injured on this date when the Mother was asserting her right of access to take AK, who was then having a low fever, to hospital. By the same summons the Father also sought a non-molestation injunction against the Mother. This summons was also returnable at the same hearing of the Mother’s aforesaid two summonses.

5. A number of affidavits and affirmations were filed by the parties and witnesses. At the hearing, the parties are agreeable to, inter alia, giving of mutual non-molestation undertakings and that the question of injunction was to be adjourned sine die. The Mother’s access was not suspended by me and I have directed that reports from Dr. Levy, the psychologist, and social welfare officer on respectively AK’s psychological condition and the children’s access be called for.

Leave to Appeal

6. The grounds of appeal are set out in the draft notice of appeal annexed to the Mother’s summons for leave to appeal and counsel’s submission. After reading them, it is fair to summarize broadly the Mother’s grounds of appeal as follows:

i)   I have wrongly or improperly exercised my discretion in favour of the Father by either failing to give due consideration to matters which I ought to have considered, such as recommendations of the social welfare officer’s report, the wishes of AK, etc. On the other hand, I have given too much weight on matters such as the drinking problems of the Mother, the audio recording on 20^th September 2008 which was orchestrated by the Husband, the alienation of AK by the Mother, etc.

ii) I have come to the wrong factual findings that the Mother had drinking problem, or a drinking problem to the extent as found by me, and that Rosa enjoyed a good relationship with AK, as she was now being charged by the Police for assaulting AK. There was also no evidence for the Court coming to the conclusion that the Mother was erratic, abusive, having sleeping problem, mood change, etc associated with drinking.

iii)   The Mother will rely on post-trial evidence, such as Rosa is now being charged by the Police for assaulting AK, the refusal by the Father to allow access of the children by the Mother and his high-handed way in taking away the children after handing down of my decision to demonstrate that the Court has exercised its discretion wrongly.

The Legal Principles in Leave to Appeal Application

7. Section 63A of District Court Ordinance (“DCO”) provides as follows:

“1. Leave to appeal granted under section 63 may be granted–

(a) in respect of a particular issue arising out of the judgment, order or decision; and

(b)   subject to such conditions as the judge……hearing the application for leave considers necessary in order to secure the just, expeditious and economical disposal of the appeal.

 2.  Leave to appeal shall not be granted unless the judge……hearing the application for leave is satisfied that–

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

8. Prior to the legislative change in April 2009, the test for leave to appeal application is not codified. The test in the English authority of Smith v CosworthCasting Processes Limited [1997] 1 WLR 1538 has been adopted and is this:whether there is “no realistic prospect of success”. This test has a low threshold. By this test the Court will only refuse leave when it is satisfied that the applicant has no realistic prospect of success in the appeal otherwise leave should be granted. For completeness sake, the principles set out in Smith v Cosworth by Lord Woolf, MR, are set out as follows:

“i) The Court will onlyrefuseleave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient. (My emphasis)

ii)  [not applicable in the present case]….”

9. The above principles were cited with approval in the Hong Kong Court of Appeal by Leong CJHC in Ma Bik Yung v Ko Chuen, unreported, HCMP4303 of 1999, 8^th September 1999. This test has been adopted before the legislative change in 2009.

10. Question arises as to whether the old test (i.e. leave will only be refused if satisfied the applicant has no realistic prospect of succeeding on the appeal) is different from what has now been stated in Section 63A of the DCO (i.e. leave will not be granted unless the appeal has a reasonable prospect of success). This has been discussed by H.H. Judge Marlene Ng in Commissioner ofInland Revenue v Nam Tai Trading Company Ltd, (unreported) DCTC 4250 of 2008, 22^nd April 2009. In paragraph 10 of Her Honour Judge’s decision, she has this to say:

“Has there been any change with the introduction of section 63A of the DCO?  In my view, section 63A(2) merely codifies the pre-existing threshold test of realistic or reasonable prospect of success adopted by thelocalcourts when considering whether to grant leave to appeal, and I see no reason to read such provision differently from the helpful guidance by Smithconsidered in Ma Bik Yung.”  

11. There has been some discussion in her decision and the aforesaid paragraph summarizes her conclusion. It is the learned judge’s view that there has been no change in the litmus test for granting leave to appeal despite the change of language of such test. I consider the learned judge has correctly stated the proper test under section 63A of the DCO, and this will be applied in considering the Mother’s present application.

Discussion

12. I first deal with the first ground of appeal listed above.

13. In G v G [1985] 2 All ER 225, [1985] 1 WLR, [1985] FLR 894, the House of Lords was dealing with the applicable principles when an appellate court was reviewing a judge’s exercise of discretion in cases involving welfare of children. It was acknowledged in G v G that when dealing with welfare of children, the difficulty faced by the family judge is that there is no right or wrong answer for the problem. All practicable answers are to some extent or in some respect unsatisfactory and therefore to some extent wrong. So the task of the family judge is to find an answer that is reasonably satisfactory. Very often he has to choose the lesser of the two evils. As such even if the Court of Appeal would itself have preferred a different answer, it would very seldom say the judge below was wrong and unless it can say so it will leave his decision undisturbed. The following two often-quoted speeches, which have been cited with approval by Lord Fraser in G v G, have clearly stated the principles and are worth repeating here:

i)   By Cumning-Bruce LJ in Clarke-Hunt v Newcombe (1982) 4 FLR 482 at 488

“There was not really a right solution there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word “plainly”. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.”

ii) Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345

“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

14. The criticism levied under this head is that when I do the balancing exercise, I do not have sufficient regards to the wishes of AK, the recommendation of the social worker, etc and on the other hand, I have paid too much emphasis on the alienation aspect and drinking problem of the Mother. It is fair to say that the criticism is not that the Court has included irrelevant matters or excluded relevant matters in the balancing exercise. It is only an attack that the Court has not given sufficient weight to the factors that are favourable to the Mother. It is also fair to say that this Court is not said to have applied wrong principles of law when doing the balancing exercise.

15. The dissatisfaction of the Mother by my said decision is understandable. It is really a difficult decision and the Court has already reminded itself not to place too much emphasis on any one factor in order to avoid an imbalanced decision. I do not rule out that other minds presented with the same facts may have come to a conclusion different from me. However, the decision was reached by exercise of a discretion after this Court, as a fact-finding tribunal, has seen and heard the witnesses and considered all relevant circumstances as guided by a welfare checklist. By reasons of the principles enunciated above I do not consider the Mother has a realistic prospect of succeeding on appeal on this ground.

16. I now turn to the second ground. 

17. Concerning the first limb of this ground, the Mother is basically saying that I have wrongly preferred the evidence of the Father, the paternal grandparents, Dr. Levy and Rosa against the weight of evidence put in by her. It is an appeal against my finding of primary facts. It basically boils down to my assessment of the credibility of witnesses.

18. There were a total of 8 witnesses giving evidence at trial. Their evidence was tested. They were heavily cross-examined by counsel of the parties. I have the opportunity of seeing them in the witness box responding to questions put to them, observing their demeanour and comparing their testimony with their own prior or other evidence. I think in order for the Mother to succeed on a challenge of facts on appeal, she has a very high hurdle to overcome.

19. Furthermore, it has not been shown that my conclusion of facts allegedly being wrong is unsupported by evidence or that it contradicts any incontrovertible evidence.  Nor has the Mother identified concisely and precisely which of finding of facts are plainly wrong.

20. The principles upon which the appellate court will upset the primary findings of facts based on credibility of witnesses are well settled. In Hong Kong such principles have been set out by Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 663 and reiterated by Woo VP in Tin Kwong International Enterprise Company Limited & ors v San Tung & anor (unreported, CACV 164/2005, 17^th January 2006,). The said principles have been helpfully summarized by Woo VP in Tin Kwong (at paragraph 14) as follows:

“i) if the Court of Appeal is to reverse the trial judge’s decision on the facts, it “must not merely entertain doubt whether the decision below is right, but be convinced it is wrong”;

ii)   the Court of Appeal will certainly not disturb the judge’s finding of primary fact where they are based on the credibility of witnesses or the preference of the evidence of one witness for that of another because he enjoyed the advantages of receiving the evidence in a living state at first-hand;

iii)in order to disturb a finding of primary fact, the Court of Appeal has to be satisfied that the judge’s conclusion is plainly wrong in the sense that either (1) that there is no evidence to support it; or (2) that is contrary to documentary or other incontrovertible evidence that the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was “contrary to the weight of the evidence”. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many. ” 

21. Concerning the second limb that the Mother’s behaviour associated with drinking is unsubstantiated with evidence, I have to say that such allegation is incorrect. There were the professional views of Dr. Chan on behavioural problems generally associated with drinking before this Court which the Court has accepted. There was also behaviour exhibited by the Mother as revealed in the evidence which is consistent with a person with drinking problem. There was evidence that she was drinking. The Court is therefore fully entitled to infer from the evidence a conclusion that the Wife has problems with drinking.

22. By reasons of the above, my assessment is that the Mother does not have any realistic prospect of success on the second ground.

23. As for the third ground Miss Yip submitted that the Ladd v Marshall exception applies and therefore the Mother’s application to adduce additional evidence in the Court of Appeal is bound to succeed. I do not pitch the Mother’s case as high as she did but agree that the Mother may have a fair chance of having post-judgment evidence admitted on appeal.  In G v G (supra), the appellant therein was also seeking to rely on additional evidence dealing with events since the trial. Lord Fraser has this to say,

“Additional evidence dealing with events that have occupied since hearing in the court below is readily admitted, especially in custody cases where the relevant circumstances may change drastically in a short period of time. But it must be a matter for the discretion of the court in each case to decide whether the additional evidence which it is asked to look at is likely to be useful or not and to reject it if it considers it unlikely to be so.”

24. The two main areas of evidence which the Mother sought to adduce are, namely, the criminal prosecution of Rosa and the uncooperative and high-handed attitude of the Father after he had got a decision in his favour. His behaviour demonstrated the Court’s conclusion that the Father being ready to promote access is plainly wrong.

25. With regards to the first part of evidence sought to be adduced, it will be inappropriate for the Court to speculate the outcome of Rosa’s trial which has not yet been fixed. However, Rosa is only a domestic helper. She was found by the Court to be very helpful but she of course is not almighty and indispensable. Her valuable service to the family is only one of the many considerations that the Court has taken note of. However, the fact that she may leave the family anytime has been taken into consideration when the Court was doing the balancing exercise: see paragraph 244 of the said decision. So even assuming (for the purpose of discussion but in no way suggesting and concluding) that Rosa has assaulted AK and therefore has to leave this family, that would not in any way vitiate my conclusion that the Father can work well with domestic helpers and therefore has no problem enlisting support of another helper, in addition to support from the paternal grandparents, to help him take care of the children.

26. With regards to the parties’ affirmations/affidavits on post-judgment access, I have gone through them and consider that the evidence does little more than describing the on-going conflicts between the parties. The incident on 2^nd July 2010 is just another episode of such conflicts. The Father as depicted in the recent affirmations is not inconsistent with what he appeared to the Court at trial. He is sometimes emotional and may, with a view to protecting his children, have over-reacted. I also noticed that the Father was not directly involved in the row which took place on 2^nd July 2010. The access was only suspended totally after the 2^nd July incident in which Del and the paternal grandmother had allegedly been assaulted by the Mother who is currently on Police bail. I do not think evidence to that effect will tip the balance in any way even if it were brought before me at trial.

27. In my judgment, even if the aforesaid additional evidence is admitted, it is unlikely the Court of Appeal will find the said evidence useful. Therefore it is unlikely the appellate court will disturb this Court’s decision. By reasons thereof I do not think the Mother has any realistic prospect of success in her appeal under this third ground.

28. I therefore dismissed the Mother’s said two summonses. As the Mother would be arguing the costs of the custody trial at a date to be fixed, I directed that the question of costs of these two summonses be also reserved for argument, and for the purpose of taxation, 30 minutes of the hearing be appropriated to the hearing of the two summonses.

FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 151 OF 2008

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

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

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

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

 DECISION

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

1. This is a contested hearing between the Applicant father (“Father”), an American born Chinese and the Respondent mother (“Mother”), a Japanese, for custody, care and control of the two children of the family, namely,

i)   AK, a girl born on the 7^th March 2002 and has just turned 8; and

ii) KK, a boy born on 14^th January 2004 and is now aged 6.

2. It is unfortunate that both children have been diagnosed to have suffered from some problems. AK has been found to exhibit symptoms that are consistent with a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”). KK was diagnosed in July 2006 to be suffering from autism and other health issues associated with the disorder, such as food allergies, heavy metals overloads and gastrointestinal problems. The parties have agreed to submit KK to a very intensive treatment program, which includes a dedicated regime of mental and physical exercises with a view to recover him from the disability. He is also subjected to biomedical treatment and is prescribed a lot of supplements, vitamins and medication. The therapies in fact are designed by doctors and medical professionals many of them are stationed in the States. The Father is the one who first sought assistance from these professionals and has been the primary contact with them. The treatment plan, as admitted by the Father, is not mainstream.

3. However, in my view it is perhaps even more unfortunate that differences arise between the parties in their relationship. As a result, instead of trying to cooperate with a view to co-parenting their children who have special needs and require extra attention, the parties engage themselves in an acrimonious legal battle resulting in them drifting further apart, breaking of relationship and dissipation of energy and resources. Further, evidence revealed at trial shows that they have on many occasions open conflicts in the presence of their children, resulting in a highly strained atmosphere and conflictual home environment for the children. AK was even advised by Dr. Lynette Levy, a child psychologist, to undergo therapy for her suffering as a result of these conflicts.

4. Each of the parties is now asking for sole custody of the two children with reasonable access to the other side, although the Father has originally asked for joint custody: see the Father’s summons of 5^th June 2009. It is submitted by Miss Mairéad Rattigan, counsel for the Father, that the Father now does not believe he can communicate effectively with the Mother or that she will co-operate with him in respect of the children.

5. The Mother has accepted through her counsel Miss Jennifer Tsui at the start of the trial joint custody subject to certain conditions. However, as these conditions cannot be agreed she seeks sole custody of the children. Counsel for the parties both submitted that for the present case, joint custody simply does not work. After hearing the evidence, I agree. I agree with Miss Tsui of counsel that the level of mistrust between the parties has led to arguments over each and every matter, no matter important or trivial and ranging from issues such as medical treatment to KK to domestic chores performed by domestic helpers. Joint custody order will be a recipe for disasters.

Background to the Present Application

6. This is in fact the 2^nd contested custody hearing before me. On 6^th August 2009, I hand down a written decision on, inter alia, the Father’s application for interim care and control of the two children as well as the Mother’s application restraining the Father from entering or attempting to enter the matrimonial home save and except for exercising access to the children. By my said decision, I directed that the Father moving out of the matrimonial home. I also ordered that interim custody of the children be granted to the Mother with generous defined interim access to the Father. At the same time, I directed, inter alia, the Mother to consult a clinical psychologist with a view to assess her drinking problem, and if necessary, to receive treatment and therapy.  

7. Apparently dissatisfied with my said decision, the Father made an application to the Court of Appeal. The Hon. Hartmann JA (as he then was) ordered a stay of my order requiring the Husband to move out on grounds, inter alia, that it is highly doubtful the Court, after having concluded an ouster order not justified, has the jurisdiction to order a party to leave his matrimonial home. 

8. The parties later compromised the appeal on 24^th September 2009 by an arrangement whereby the respective parties’ interim access to the children be exclusive and defined. The domestic helpers and the children are allowed to remain in the matrimonial home. Whenever a party is with the children exclusively, the other party should move out of the matrimonial home. The Father enjoys exclusive staying access with the children in the matrimonial home every Friday from 7:00 pm to Sunday 11:00 am. He also has exclusive visiting access every Monday and Wednesday from 5:00pm to 7:00 pm. When the Wife is out of the matrimonial home during the weekend she may check in a hotel and the Husband undertakes to pay such expenses. Subject to these the Wife do have exclusive access to the children during the rest of the time. Effectively, by this arrangement the Father moves out of the matrimonial home. This remains the arrangement in place, subject to minor modification on several occasions on special grounds of the parties, until the present hearing.

The Legal Principles

9. Custody orders are made under the provisions of section 10 of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”). The general principles governing custody of a child of the family are set out in section 3 of the GMO, which stipulates:

“(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 welfare 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;”

10. Accordingly, it is the two children’s welfare which determines the course this Court will follow. As joint custody is inappropriate in the instant case, the Court has to determine in whose favour the sole custody order should be made that best promotes the children’s interest.

Brief Background

11. For the present purpose I would like to state the relevant background here although some of which may have already been set out briefly in my written decision of 6^th August 2009. These are facts accepted by this Court unless otherwise stated.

12. The Husband is an American born Chinese who received his education in the States. He is now 37 years of age and is a securities trader. He speaks only English, very little Chinese and no Japanese. His father, Mr. K senior originated from China and finished his high school in Hong Kong before going to medical school in Taiwan. Mr. K senior later settled in the States and practised as an anaesthesiologist until he retired in 1999. The Father’s mother was an elementary school teacher in Hong Kong before settling in the States with Mr. K senior. Both his parents are US citizens but with right of abode in Hong Kong. Mr K senior is now 68 and Mrs. K 65.

13. The Mother is a Japanese born and brought up in Japan. She is now 42 and has a degree in economics and pharmacy. Her English is limited. She gave evidence in Japanese during the hearing and required Japanese-English interpretation, even when her husband was giving evidence in the witness box. She said through the interpreter that for the ordinary language her husband used at home she could understand. However, for some terminologies used in Court she said she had difficulties understanding them. From my observation of her giving evidence in the witness stand for 8 days and from the audio recording played in Court, I consider her English proficient for simple daily purposes. She is a native Japanese speaker and does not speak much Chinese. She can only communicate comfortably and effectively in Japanese. Her parents are licensed pharmacists in Japan and are operating a pharmacy in Japan.

14. The parties met in Shanghai when they were both studying Putonghua (or Mandarin as referred to by the parties) in the Fudan University in 1996. Their relationship soon started. In the beginning they communicated in Putonghua because the Father’s Japanese was non-existent and the Mother’s English was not as good as it is now. The Mother later went to England to study English for about 3 months and thereafter they started to communicate 100% in English. They eventually married on 21^st April 2001 in the State of California.

15. After their marriage the couple lived in Taiwan where the Father was employed as a securities trader. The two children were born during the Father’s Taiwan posting. However, the Mother moved back to Japan when she gave birth to the children. In 2005 the Father was given the option of either to work in Hong Kong or Japan. The family then elected to come to Hong Kong as they considered the Father would have better prospect here and be able to ride on the tide of the booming China market. For tax reason the Father did not prefer to go back to the States. The family moved to Hong Kong in August 2005.

16. The children spent their first few years of their lives in Taiwan, AK for about 3½ years and KK for 1½. At that time the parties jointly take care of the children. I accept that the Father had been involved as much as he could at that time to take care of the children, including changing the nappies and putting them to sleep whey they woke up in the middle of the night, though he then also worked long works. Of course the Mother remained the main caregiver, as she was a full-time housewife. She was assisted by a Filipina domestic helper, Grace, after KK’s birth.

17. Since marriage the Father has been the sole breadwinner and the Mother a full-time housewife. At any rate the Father’s income as securities trader is regarded very high. According to the Form E filed by him in 2008, his annual income then was well over HK$5 million. Although he was temporarily out of job for a while at the end of 2009, he resumed work in the same trade January this year, presumably with similar remuneration package as before.

18. In Hong Kong the family lived in a comfortable and spacious rented apartment of about 2,400 sq feet in the prestigious residential estate of Parkview. It comprises one master bedroom, 2 bedrooms, a living room, a dining room and one helper’s room. Before the parties separated they slept in the master bedroom with KK. AK has her own room. The other room in fact is originally intended for KK. Since he very often has difficulties in his sleep KK slept with them. His room is for housing tools and equipment specifically for KK’s use. AK later moved to sleep with them. After souring of their relationship, the Father slept in the living room.

19. When the parties moved to Hong Kong, they initially engaged one helper, Gretchen, who they brought with them from Taiwan. Later Rosa was employed as a replacement. Soon after the commencement of the proceedings and up until now two domestic Filipino helpers, Rosa and Del, are employed. Rosa has got a Hong Kong driver licence and is responsible to drive the children to all their activities and therapies. She also helps in preparing foods for the children, attending to their routines and taking care of many therapies that KK requires.

20. However, the two domestic helpers and the Mother are not on good terms. The Mother complains that she has difficulties working with Rosa and Del as they side with the Father against her. Upon instruction of the Father, the helpers even recorded the Mother’s activities and reported to the Father. Soon after the proceedings the Mother engaged her own domestic helper, Citra from Indonesia. It is admitted that Citra has left her employ towards the end of this trial before expiry of her contract.

21. By the nesting arrangement in place since 2009 September (see: paragraph 8 above) the Husband has effectively moved out of the matrimonial home but the domestic helpers remained there with the children and the Mother. However, the Mother’s relationship with Rosa has further deteriorated. Rosa has been accused of abusing AK some time after the trial ends. Although according to the multidiscipline conference formed particularly to deal with child abuse the allegation is not substantiated, Rosa for the time being not is allowed to take care of AK.

22. The parties’ relationship has been in difficulties even before they married. The Father said that the Mother is bad tempered and used to physically, mentally and verbally abusing him even before they marry. She also has an alcohol problem. Further, the relationship between the Mother and the Father’s parents has all along been strained. It is not in dispute that the parties originally intended to hold three wedding ceremonies in respectively the States, Taiwan and Japan. The strained relationship resulted in cancellation of their wedding ceremony in Japan and the Father’s parents not attending their wedding ceremony in Taiwan at the last minute. The Father’s parents were not allowed by the Mother to stay in the parties’ apartment and as a result they left Taiwan shortly before the Taiwan wedding. It is also not in dispute that the Father’s parents only saw the children for the first time in Taiwan in or about April 2004 when AK was 2½ years old and KK only about 3 months old. The paternal grandparents never stayed at their home until November 2008.

23. The Mother complains that the Father has started to indulge in heavy drinking and women since in Taiwan. This becomes worse when he began to work in Hong Kong. She complains that the Father has spent less and less time at home and has very little time for the children. The Father does not deny he has to work long hours and needs socialising but denies not caring about the family. This has been the cause of severe arguments.

24. It is also fair to say that they do not appear to know well the expectations of each other. They also do not understand each other enough to enable them to walk their lives together. From the recorded conversation that took place on 20^th September 2008 the transcript of which is produced as exhibit A-1, the Mother is very eager to move back to Japan after having been in Hong Kong for some years, but it is not the case of the Father. She is obviously an unhappy expatriate wife in Hong Kong who saw herself a hard working housewife for the family but the husband is always away, not caring enough for the family. They are also troubled by cultural difference. Their style of parenting and expectations of their children are also very different. After observing the parties giving evidence in the witness stands for many days it is quite apparent that they both have strong character incompatible with each other. They have fights on several occasions, resulting in incidents being reported to the Police.

25. On 25^th September 2008, the Father issued the present Originating Summons asking for, initially, joint custody of the children with care and control to him and reasonable access to the Mother after having been assaulted by her on 20^th September 2008. In fact there had been repeated allegations of domestic violence against each other and the matter was known to the Social Welfare Department as early as 2006 following a report of assault. The September 2008 incident is regarded by the Father as the last straw on the camel’s back. At the same time, he also had worries that the Mother might remove the children to Japan. He therefore asked, and an order granted by this Court, that the two children should not be removed out of the jurisdiction without leave of the court.

26. On 13^th October 2008, the Father issued a petition based on facts of unreasonable behaviours on the part of the Mother. Although the parties take no active steps in the divorce proceedings and financial matters, pending disposal of the custody issues, it is apparent that the Mother intends to contest the divorce and file a cross-petition.

27. On 23^rd December 2008, the Father took out an application for direction that a clinical psychologist be appointed to assess, and if necessary, to provide therapy to AK. It is his case that he could see AK was then suffering from some sort of distress and exhibited symptoms suggestive of a problem on the part of AK. The Mother opposed the application as she did not see anything unusual in AK’s behaviour that required professional intervention. After hearing, the Court made an order in favour of the Father’s application. At the hearing, clinical psychologist Dr. Lynette Levy was recommended and subsequently consulted.

The Children

AK

28. AK has just turned 8. She is now studying at the second year class of the Hong Kong Japanese School and is regarded a top student in class. Reports from school suggest that she is doing well at school and making strong academic and social progress. Japanese is the main medium of instruction at school but AK is remarked as a strong English speaker. According to Dr Levy, AK’s level of English is very strong, and in terms of reading and oral comprehension, is well above an average child of her age in the US and Canada. She used to attend Kumon tutorial classes on Japanese, Mandarin, English and Mathematics and now she continues only with Japanese and Mathematics. She also has other extra curricular activities including dancing, drawing, swimming and tennis. It is not in dispute that the Mother is primarily responsible for her schooling as it is mostly in Japanese. AK normally has dinner at around 6:00 pm and goes to bed before 8 pm every day.

29. According to Dr Levy, whose assessment I totally accept, AK has a positive relationship with KK and is very protective of him. AK’s primary languages spoken at home are English and Japanese and she is fluent in both languages. She enjoyed good physical health and is considered a bright child with some weakness in the area of attention. She was, however, diagnosed by Dr. Levy to have exhibited symptoms that are consistent with a diagnosis of ADHD. Intervention to help AK overcome emotional issues which she may experience and to support her through her current situation, as well as to help her develop learning strategies addressing her attention symptoms, are recommended. Since January 2010, AK is receiving play therapy from Dr. Iris Chau to address her adjustment with domestic stress.

KK

30. KK is now aged 6 and was diagnosed to have suffered from autism in or about July 2006 when he was 2. He also suffered from other health issues associated with the disorder, such as food allergies, heavy metals overloads and gastrointestinal problems. Shortly after confirmation of the diagnosis the parents took him to Japan to see if any help is available. It has been decided that KK would not be staying in Japan for treatment, although he is now receiving a disability subsidy from the Japanese Government.

31. In or about August 2006, the Father got introduced to Mr. DT, the Director of Autism Recover Network (“ARN”). Testimony from Mr DT who recovered his own autistic son from autism totally gave the Father much hope that KK would fully recover following the therapies recommended by ARN. He therefore decided, and the Mother agreed, though I think not with the same degree of conviction as the Father, to subject KK to ARN’s therapies. These therapies are basically home-based. KK has a very intensive and busy schedule everyday the whole week. Normally, he receives 2 sessions of Autistic Behavioural Analysis (“ABA”) program each of 3 hours everyday administered by a therapist at home. He also goes to a doctor every Monday morning to do his chelation treatment with a view to removing his heavy metals loading in the body. He attends ARN playgroup activities in Shenug Wan twice a week. Some of the therapies he receives are administered by professionals, e.g. speech therapists and occupational therapists. Some are administered by trained carers such as the brushing and joint compression exercise. The brushing and joint compression need be done every 2 hours when KK is awake. If possible KK should go to hyperbaric chamber a few times a week that provides treatment with its anti-inflammatory properties and helps rejuvenate his damaged brain cells.

32. At trial, the Mother showed a video of brushing and compression exercise which she did for KK, although it was confirmed by the US and local professionals that she did the exercise incorrectly in many respects.

33. The parents also subject KK to biomedical treatment since March 2007. Although they looked for other doctors initially, they later switched to Dr. Nancy O’Hara of Connecticut USA, a paediatrician who promotes biomedical treatment for autistic children. Dr. O’Hara was initially referred to them by Mr. K senior. It is the Father’s evidence that according to his research, Dr. O’Hara is the best in this field. The Mother also regarded Dr. O’Hara a very famous in the specialty of child autism.

34. Dr. O’Hara worked as a team and is the team head. Members of that team comprise doctors such as Dr. Szakacs and other medical professionals, e.g. dietician and occupational therapist. The father brought KK to see Dr. O’Hara in the States and one of these visits was in January 2009. The latest one was in early May 2010 after conclusion of this trial. The Father and Mr. K senior had also attended numerous conferences there. Under this treatment regime KK takes 100% organic and natural foods. He is also required to have strict diet (Specific Carbohydrate Diet). He cannot eat rice. He also needs to take about 40 to 50 pills of various kinds of supplements, vitamins and medication everyday. He also needs injection of methyl b-12.

35. Various therapies are recommended by ARN and Dr. O’Hara. Miss Rae Suba, the occupational therapist is one of these recommended therapists in the States. Regular contacts with Dr. O’Hara and the US professionals are necessary for monitoring KK’s progress, particularly when KK has shown reactions to the medication and therapies. I accept the evidence of the Father that he is the key contact, if not the only contact, with the US medical professionals and the ARN in Hong Kong for KK’s treatment, though the Mother and Rosa very often are involved in appointment fixing and doing exercise with KK. The Father said prior to the Court proceedings the Mother very seldom involved herself in KK’s therapies and contacts of the US professionals. He said after the proceedings the Mother became involved. This, he said, causes confusion and problems because the Mother fails or refuses to communicate KK’s information to him, acting to the detriment of KK’s interest.

36.  I accept the Father’s evidence that KK probably is severely autistic and a “non-responder”. He does not respond well to many of the biomedical treatments as other children do. KK needs to go through a lot of therapies and cooperation of a lot of people is required in order to get the therapies right and to pick up small signs which KK may show in response to the treatment. No one can do all the therapies and get them right without cooperation of others. 

37. As KK is subjected to a biomedical regime which is not mainstream, in Hong Kong KK has to consult specially selected doctors who are familiar with biomedical treatment for autism children. Dr. Trodd and Dr. Lam are the medical doctors which they would consult if KK needs urgent medical attention in Hong Kong.

38. KK has difficulty going into sleep since birth and would wake up in the middle of the night, though he is better now. He slept with the parents when the parents’ relationship is intact. After separation KK sleeps with the Mother and AK. He sleeps at around 8:00 pm every day and is very sensitive to light and noise. Quite some efforts are required to put him back to sleep once awaken. I accept the Father has good experience in putting KK back to sleep when he wakes up in the middle of the night.

39. KK has just started schooling in Autism Partnership School in mid-April 2010. That takes place after the evidence has finished. Presumably KK’s daily ABA sessions will not be as frequent as before. Between 11^th and 21^st May 2010, the Father got leave from this Court to remove temporarily KK to the States to see Dr. O’Hara and other professionals. The Mother is also allowed to be present in all his appointments during this trip. 

The Father’s Case

40. It is the Father’s case that he now does not believe he can cooperate with the Mother as she has demonstrated herself to be irrational and uncooperative. He also said the Mother is unfit as the primary caregiver of the children as she is alcoholic, bad-tempered and is abusive physically to him and to the children, particularly AK. He now does not believe the Mother is capable of taking care of the children in a way that suits their best interest. He also claims that the Mother refuses to communicate with him on matters affecting the children. It is his case that if custody is granted to the Mother, she will never promote the children’s relationship with him and he can never have a relationship with AK.

41. The Father’s case is that the Mother has chosen to alienate the children from him and the paternal grandparents. He said the Mother portrayed a negative image of him and the paternal grandparents to AK. She also involves AK into their conflicts with a view to give AK an impression that the Mother is the victim of the Father’s problems and unreasonableness and is therefore the “bad guy”. She ignores court order directing AK to be assessed by Dr Levy by all sorts of excuses. She also fails to have adequate insight of the potential problems that AK may be subjected to.

42. In relation to KK, it is the Father’s case that prior to his institution of the proceedings the Mother has very little involvement in KK’s recovery treatment. It is he, with the assistance of domestic helper Rosa, who has all along been responsible for KK’s treatment and welfare. The Mother is indifferent to KK’s recovery. There is evidence that KK has been benefited from such treatment and shown significant progress. After the proceedings, the Mother becomes involved in the treatment of KK. However, according to the Father, it is done with an ulterior motive of defeating his claim for custody of KK. However, she continues with KK’s treatment in her own way and shut the Father and Rosa out to KK’s treatment. The way in which she chooses regarding KK’s care has caused great concern to professionals involved in KK’s treatment, particularly Dr. O’Hara. The Father believes that if care and control were granted to her, KK will never recover. The Social Welfare Officer Ms. Chow also acknowledges in her report that KK’s recovery will be more promising under his monitoring and that he used to be responsible for the related treatment arrangement.

43. It is the Father’s case that both KK and AK’s interests will be best served if they are in his care and control. He will, contrary to what the Mother is now doing, do all he can to promote their relationship with the Mother because he recognizes the children must have a relationship with the Mother.

44. It is submitted by Miss Rattigan on behalf of the Father that this is not a case where custody, care and control should go to the Mother simply because she is a stay-at-home mother whereas the Father is working all day. His case is that the granting of care and control to the Mother will definitely be against the best interest of the children. The Father confirmed in his evidence that should he have custody, care and control of the children, he will rent an apartment in mid-level, preferably on Kennedy Road which will be close to his office in Central. It will allow him to go home more frequently during the working day. His evidence is that it is possible for him to work from home at times and that he can return home to be with the children at around 5 in the afternoon for a few hours before he has to go back to work, if required, or on occasions, to go out again to entertain clients, which is part of his job.

45. He will be assisted by others. His parents, who are Hong Kong permanent residents, are willing to move back to Hong Kong from States and assist him taking care of the children. They can look after the AK and supervise the helpers to take care of the children, particularly to implement KK’s biomedical program.

46. He will also continue to employ Rosa who used to be the primary carer of KK before the Mother taking up the job recently. He and Rosa are as capable as the Wife in cooking the special diet for KK. AK is also close to Rosa. If the Mother is unwilling to help out AK’s Japanese homework he will be engaging a Japanese tutor for AK. This tutor can also be the interpreter and help translate school circulars to him if needs be.

47. On the other hand the Wife has no support here. She had problems working with domestic workers, as can be seen from the facts that she cannot work with almost each and every domestic workers employed by the family, including the Indonesian helper Citra chosen by her. He would welcome the Mother to assist in taking care of the children provided she will not act to the detriment of the children.

The Mother’s Case

48. The Wife denies the Father’s allegations. It is the Mother’s case that the Father has tried to frame her up. It is submitted on her behalf that the Father is unfit to be the custodian parent. He has to work long hours and has no time for the children. He left home for work early in the morning between 6 to 6:30 am and returned after the children have gone to bed. Further, he always indulges in heavy drinking and is busy in socialising events.

49. The Mother also accuses the Father being a violent, arrogant and domineering person. He always wants full compliance of family members to his commands because he is the breadwinner and everyone has to obey him. The Mother accused the Father of asking sole custody as a power play. He wants to win for the sake of winning and the children are used for the purpose of furthering that aim. His disrespect to others has led to an argument in a Macau-Hong Kong ferry and finally a fight at the Shun Tak Ferry Pier when he suffered serious bruises near his eyes.

50. The Mother admits that she would be drinking some alcohol before going to bed but denies that she has a drinking problem. She is never a heavy drinker and her drinking has never caused any problem. She explains drinking is part of the Japanese culture. On the other hand the Father is always drunk and has hangovers. She said that whenever the Father is drunk, he would lose personal belongings and would cause a lot of nuisance at home. Sometimes he returned home drunk using the children as pillows or wrestling with them. He would scream and shout in front of the children. He is also impatient and would slap on the children.

51. It is also the Mother’s case that she was and still is the primary caregiver of the children since birth. When giving birth to KK, she took AK to Japan and booked a room in the hospital for the children so that she could take care of both of them at the same time. She sleeps with them since they were young because they were very light sleepers and would wake up in the middle of the night. As such she would rarely have uninterrupted sleep, particularly since KK’s birth. She cooked for both children, especially for KK who demands special diet following a very strict biomedical treatment regime. She manages the schedules and activities of the children with the assistance of domestic helpers. On the other hand, the Father does not know AK’s needs. When he is having exclusive access to AK, AK always goes to bed late. He did not implement potty training of KK resulting in KK consumed a lot more diapers during his exclusive access.

52. As she is Japanese, naturally she looks after the homework of AK who studies in a Japanese school. She is the primary contact between AK’s school and the family. AK does not have close bonding with the Father because she does not see much of him and witnesses his rudeness, indifference, violence and drunkenness. AK also enjoys a better relationship with the maternal grandparents than the paternal grandparents. Further, the Father always engages in his fun-seeking activities including, drinking and watching martial arts videos. He even chooses to attend live martial arts tournaments at time which is supposed to be his access time. Necessarily the access has to be cancelled. Since the Father has long working hours and has to take care of the children through third party such as domestic helpers and the children’s paternal grandparents, she obviously stands in a better position than the Father as the custodial parent. She is a full time caregiver and should be preferred when comparing with third parties.

The Evidence

53. Both parties together with their witnesses filed a number of affidavits/affirmations enough to fill up 3 arch-leverage box files. Two box files of correspondence exchange between the parties’ lawyers/parties are also exhibited. There are dispute of facts on almost each and every issue.

54. For the purpose of the present proceedings it will not be necessary for the Court to resolve each and every dispute and repeat the same here. However, a number of incidents and issues that throw light on whether a party is a fit custodian parent or what suits the best interest of the children will be referred to in this decision. If it is necessary for this Court to make finding of facts and the facts stated herein (including what I have stated in the preceding paragraphs) are different from the versions advanced by a party, it is because this Court has chosen not to accept that party’ evidence and prefers that of the other party.

55. At trial, there are a total of 8 witnesses attending Court to testify and for cross-examination. They are:

i)   Ms. CHOW Hau Wan, the Social Worker who has carried out investigation. She has prepared two reports respectively dated 19^th January 2009 and 23^rd August 2009;

ii) Dr. Lynette Levy, Registered Clinical Psychologist who has compiled two reports and an educational assessment on AK respectively dated 11^th May 2009, 6^th October 2009 and presumably a date in November 2009;

iii)   Dr. Tommy Chan, Registered Clinical Psychologist who has done an assessment of the Mother’s drinking problem and produced a report dated 13^th October 2009;

iv)   Madam Rosa Arandia, the family’s domestic helper who has filed an affidavit dated 17^th June 2009;

v) Mr. K senior, father of the Applicant who filed an affidavit dated 9^th June 2009;

vi)   Mrs. K, mother of the Applicant whose affidavit was made on 9^th June 2009;

vii) The Father, who has filed a total of 7 affidavits with the first one dated 25^th September 2008 and the last on 16^th October 2009; and

viii)   The Mother, who has filed a total of 5 affirmations with the first one made on 13^th February 2009 and the last one of 15^th October 2009 exhibiting the report of Dr. Tommy Chan.

56. At trial, video clips taken by the Wife of the domestic helpers and of KK’s daily routine (brushing and compression exercise, speech therapy, etc) were produced and played. The Husband also played an audio recording using his i-phone of the quarrel that took place on 20^th September 2008. In the cross-examination the Father was challenged as to his evidence about the bruise marks on AK’s back found on 20^th September 2008. In rebuttal the Father retrieved from his video recordings which he took using his Blackberry and played the same in Court. The Wife gave evidence in Japanese and a Japanese-English interpreter was provided throughout the entire proceeding. Both parties are cross-examined extensively and heavily. Furthermore, Rosa used Tagalog and Mrs. K Chinese. As a result, double interpretation was required for the respective evidence to be firstly interpreted into English and then Japanese. By chance more than by arrangement accidents also happen to counsel and one of the interpreters. That explains, at least partly, why the trial was progressing slowing and takes some 20 days to finish.

57. I would only repeat herein the evidence of the social welfare officer and the two psychologists in detail as I find them very useful. Their observation and professional opinion provide important information for this Court to make determination on crucial issues.  As for the other witnesses I would like to make some general comments on their credibility, based on their responses to questions put to them in cross-examination. The truthfulness of their evidence will also be tested against, inter alia, contemporaneous documents, their own prior affidavits/affirmations and other undisputed or reliable evidence. 

58. I have no doubt that both parents are loving and caring parents. However, after hearing each of them in the witness stand for many days I must say that each has exaggerated the faults or disadvantageous aspects of the other side and downplayed the bad things that have been said against them, though each has done so to a different degree.

The Father

59. The Father is big, physically strong and sturdily built. It is not in dispute that he loves and practises martial art. He was described by the Mother as arrogant, domineering and violent. I agree that he may give an impression of being arrogant because of his appearance and style of speaking. However, having observed him giving evidence in the witness stand for 7 days and cross-examined for some 6 days, for reasons the Court will elaborate below, I do not find him the kind of person the Mother has tried to portray. I find his answers to questions straightforward, coherent and generally consistent with his own prior evidence or other reliable evidence. He gives me the impression of being frank, expressive and fair. When repeatedly pressed by counsel for the Mother, he still refused to label the Mother as bad but said that she was a mother who needed improvement. He appears to me to be firm in principles. He is ready to reason but not the sort of person that tends to be argumentative. He is observed to be willing to compromise with the Mother and make concession on matters concerning children. When his answers were challenged he was ready to provide explanation or admitted he had made mistakes on reflection. His reflection at trial impressed me when he was queried as to why he chose to link the length of KK’s hair to the Mother’s leaving the matrimonial home on 20^th July 2009. I do not doubt the sincerity of his regret on what he had done that day being emotional and immature, nor do I doubt his willingness to avoid conflict in future if such results in adverse effect on his children. In fact there were incidents in November 2009 showing that he retreated or not pressing on in order to avoid conflicts before the child. He allowed AK to go with her mother together to the Indian Recreation Club earlier despite that was not what had been agreed and it was his exclusive access time.

60. He also impressed me as a devoted father who is committed to his children, especially KK. He has an extremely good knowledge of autism, the bio-medication which KK is now subjected to and the purpose for which KK takes the medication.

The Mother

61. The Mother gives me the impression of being a quiet and soft person. She speaks in a gentle and polite tone. She is observed to be a careful and meticulous witness. However having gone through the evidence and observed her in the witness box for 8 days, I must say that     she is a person of strong character, sort of “stiff-neck”, not easy to compromise and is not what she appears to be.

62. Her answers were less straightforward, sometimes evasive and showing discrepancies with her own previous evidence or other reliable evidence. When these circumstances did arise or when she was challenged, she then tended to give long explanation with a view to explain away, with one version slightly different from the previous one. She would only admit a mistake when she was cornered and she found out that there was no room for manoeuvre. One obvious example is the joints and compression exercise which she has administered on KK. Counsel for the Father put to her that she got the technique wrong because the US therapist Rae Suba said so. She denied and said Rae only saw KK once in New York. She suggested the other therapist Lizbeth in Hong Kong taught otherwise and considered what she had done was without problem. When she was confronted that in fact she had asked Lizbeth who confirmed she did it incorrectly, and an email was produced, she finally admitted the mistake. Perhaps she was facing tremendous pressure in this custody trial which she considered very important. With a view to downplay the allegations directed against her, she very often tried to avoid the question or not telling the truth.

63. A number of respects of her evidence before me give me the impression she was quite hostile to the Father, the paternal grandparents and Rosa. She did not cook for the paternal grandparents. She accused the grandparents eating AK’s foods. She admitted the grandparents even had to buy their own rice. She suggested racial discrimination by the Chinese paternal grandparents against her because of the unfortunate history between the two countries. After hearing the evidence I do not believe there is any discrimination, and if there were, it would have been the other way round. The paternal grandparents had a daughter married to a native Nigerian and I have seen pictures of them harmoniously together. I do not believe the paternal parents discriminate against the Mother because she is Japanese. There must have been quite a lot of mis-understanding between the in-laws and hard feelings against one another. For reasons which will be apparent when I discuss the evidence of Mrs. K below, I think she is making up her own story in disguise of her intentionally alienating the children from the grandparents.

64. One example of her not telling the truth is her evidence about the two helpers, Del and Rosa, chatting in the maid quarters instead of tidying up the house. Her version was that when she heard laughter of Del and Rosa in the helpers’ room she immediately took out a video camera and knocked on the door. She said it was when she knocked on the door that Del went to the toilet. However, the video showed that when she knocked on the door of the helper’s room, only Rosa came out. Del was not seen coming out. She followed Rosa and then the camera panned to the toilet. She knocked on it. Del was heard saying something to the effect she was using the toilet. The video shows something quite different from what she had told the Court. I believe her version is a distorted one.

65. Another example of the Mother not being frank and not telling the truth is the amount of her alcohol intake. In affirmations and in Court, she admitted drinking regularly everyday but denied having a problem. On the other hand she said it was the Father who had a more serious problem. Her evidence in this respect is unimpressive and I do not believe the truthfulness of what she has told the Court for obvious reasons below.

66. It was reported by the social worker Ms. Chow that she drank half to one bottle of wine everyday. This was consistent with the medical record made in February 2007 by Dr. Pei, the doctor whom the Mother had consulted for her shingles and migraine. In that report, it was recorded that she consumed 50 units of ETOH (which means alcohol) a week. This medical record was in fact exhibited by her. She did not appear to dispute this amount initially. In the instruction letter by her lawyer to Dr. Chan, the psychologist whom she went to see after my 2009 August order, her lawyers repeated the same amount of her alcohol consumption reported by the social officer. It has to be borne in mind that the Court has by then already come to a provisional view that she might have a drinking problem and directed her to consult a psychologist. So she should be aware of the serious concern of this Court on her alcohol intake. Presumably full instruction should have already taken from her before her lawyers wrote that letter. The amount reported in Dr. Pei’s report and reported by Ms Chan remained not refuted in any way, not even in her own affirmations, her lawyer’s letter and she even admitted that in Court. However, according to Dr. Chan, the Mother told him that she drank half to one bottle only a few days in a week instead of everyday as had been said of her.

67. I do not have any basis to doubt what Dr. Chan’s evidence of what he has been told. In fact the Mother has in her affirmation confirmed she drinks everyday (this part of the evidence will be elaborated further when discussing the evidence of Dr. Chan). The only inference that can be drawn is that she is not telling the truth to Dr. Chan and is trying to downplay her alcohol problem. Furthermore, she obviously has not told Dr. Chan the whole truth otherwise she would have told Dr. Chan of her sleeping problem and she needed to take pills to help her relax, which I think, should have been touched upon in Dr. Chan’s assessment of her drinking problem. My judgment is that she is far from frank to Dr Chan and is with a view to mislead the Court. It is because the report is intended to assist the Court in assessing her drinking problem!

68. I find some aspect of her evidence unbelievable. One obvious example is this. She said that AK has since 2008 packed a small luggage in her room. AK also asked her for her passport because she wanted to go back to Japan. By then AK was about 7 years old. According to the Mother AK had by then spent a total of about 2 years in Japan on an on-and-off basis. Out of these 24 months stay about half of it was spent in the first year of her birth and when the Mother gave birth to KK. AK lived in Taiwan for 4 years and Hong Kong for 3 years. She only returned to Japan for vacation occasionally over these years. It is hardly believable that she developed such strong feeling that she belongs to Japan, but not Hong Kong nor Taiwan, unless there has been active adult input. Given her age, AK would not be able to pack her small luggage without being noticed or assistance of adults. Accordingly, either the evidence in this respect is fabricated, or exaggerated, or AK was taught to do so by her mother. However, the way the evidence was presented was that what AK had done had surprised the Mother and made her worried. I do not think this aspect of the evidence believable.

69. Accordingly, whenever there are discrepancies between the factual evidence of the parties, unless otherwise stated, I will prefer that of the Father or others to that of the Mother.    

Mr. K Senior

70. I find Mr K senior a frank and straightforward witness. He has been heavily cross-examined at trial. It is true that he shared the feeling of his son and generally he did not say things positive of the Mother. However, he is unshaken and consistent throughout. In so far as his evidence relates to what he actually experienced personally, I have no reason to doubt its truthfulness. I accept his evidence that when the Mother was absent, AK showed affection to him and Mrs. K. However when the Mother was present, AK appeared not knowing what to respond and even screamed at them. I also accepted that when they were with KK, the Mother was hostile and took KK away from them. I accept their stay at the matrimonial home in November 2008 and April 2009 were without prior notice to the Mother and, understandably, unwelcome by the Mother. However, the response of the Mother was hostile and inappropriate, because children’s interest was affected.

71. Although he had a heart attack before he retired, I accept that he is generally of good health and is willing to help take care of the children. I accept that because of his medical background, he has assisted his son in his research in autism and biomedical treatment, and is obviously in a better position to assist the Father supervise and monitor KK’s treatment.

Mrs. K

72. Mrs. K appeared to me to be a kind and truthful witness. I have no hesitation to accept her evidence in its entirety. I accept that when the Mother was not there, AK enjoyed a good relationship with them. AK even invited her to take her to play in the clubhouse. I also accept her evidence that the Mother did not want the paternal grandparents to hug KK. The Mother’s explanation was that KK has allergies to quite a lot of things. Hugging therefore increased his risk of coming into contact with stimulants to which he is allergic, e.g. wheat bread and hand cream. She later elaborated by saying that KK is not allergic to these things but these things may somehow enter into KK’s system which may cause allergic reaction in him.  

73. However, I do not think the Mother’s explanation really assist her at all. It matters not how the stimulants enters, be it through KK’s skin, by swallowing or otherwise. KK was regularly brought by the Mother to play in the clubhouse. In fact the Mother considers this important to KK’s development and has to be encouraged. No doubt there are a lot of children playing in the same playroom. The playroom must be full of children who presumably have been drinking milk, eating bread and touching everything in the playroom and presumably also touching KK as well. In spite of these she still sees fit to take KK there. If the aforesaid were her genuine concern, I would have thought KK should never have been brought to the clubhouse. I believe for personal reasons the Mother did not have the will to allow the paternal grandparents to be close to KK and AK. She is simply making up excuses in Court.

Rosa

74. Rosa was heavily cross-examined for two days in the witness stand. Her integrity and her willingness to stay with the Father are challenged. It has been alleged by the Mother that Rosa’s mobile phone had stored about 30 pictures showing white female genitalia and a picture of AK and KK naked while taking a bath. There was also a photo of KK dressed up in AK’s princess style costume. The Mother therefore was worried that Rosa might be associated with child pornography. Rosa denied the pictures about the female genitals. She admitted possessing the other two pictures but explained they were for fun.

75. Rosa was also said to be involved in international fake goods trading. Rosa denied.

76. The Mother also said the Father had exaggerated the role of Rosa. She was now paid $8,500 per month since the commencement of her present contract in October 2008, which was well above the market price for a domestic helper in Hong Kong. Before that, she was only paid the legal minimum (about three thousand odd per month), and later $4,500 per month after she got her driver licence. She was granted loans from the Father respectively of $30,000 and $10,000 for her father operation in the Philippines. She was given an AE supplemental card without credit limit. So it was suggested that Rosa was induced to give favourable evidence for the Father.

77. After the cross-examination, I accept Rosa’s explanation. Although I think Rosa’s evidence that she considered KK an angel an exaggeration, I still believe she has developed a loving relationship with both KK and AK, otherwise she would have already left this family. I believe when her first contract with the family was due to expire, she was ambivalent as to whether to stay with the family, given her poor relationship with the Mother, strained relationship in the family, a demanding childcare routine and there being better offers ($10,000 per month). If not for love and commitment to the children, I think she would have left the family much earlier. There are clearly better options for Rosa.

78.  I do not believe she had got pictures of female genitalia in her mobile phone. The allegation that she might be involved in child pornography is a total exaggeration even if she took picture of the children naked. I do think it is false accusation otherwise I think the Mother would have already reported the matter to the police, as she has done so recently for the alleged abuse of AK. I accept Rosa generally a truthful witness. She is instrumental to the children in terms of their daily care and is cooperative with the Father in implementing KK’s recovery plan.

The Social Welfare Officer’s Reports

79. The Social Worker Ms. Chow has written two reports, first one in January 2009 and the second in August 2009.

80. The first report (dated January 2009) was compiled after office interviews and home visits. AK’s interaction with both parents was observed to be spontaneous and natural. AK communicated with her father in English and mother in Japanese. Ms Chow also observed that the Father very often interacted with KK but there was not much direct interaction between the Mother and KK. She observed both parents then enjoyed good relationship with the children and they each had strengths and constraints to be the custodian parent. She observed that the Father cared and concerned about the physical and psychological development and well being of the children. She described the Father a very good playmate to the children. She observed that while AK was playing with her father, she had much laughter and her mood was “joyful and exciting”. At trial she explained the incident that led to her aforesaid remarks took place in January 2009. The Father guided AK and did exercise with KK through playing. The Father was also regarded the key person to research for and make liaison with the professionals for KK’s training and recovery. He monitored the helper well to keep KK’s daily routine and schedule.

81. When asked by Miss Rattigan at trial, she said according to her observation, Rosa had a good relationship with the children.

82. At trial, Ms Chow said she later managed to ascertain from AK that she preferred to stay with and accompanied by the Mother more than the Father. To AK, the Mother was a companion. Yet, during the visits for the purpose of writing her first report, the Mother was observed by her to have less attention to KK whose daily training routine and schedule was mainly followed or taken up by helper.

83. It is also interesting to note that when AK was asked by Ms Chow to choose a person to stay with if she was left alone in a place with no food and games, AK said she would first choose Rosa and the second one was the Mother.

84. Ms Chow also told the Court that AK voluntarily and spontaneously demonstrated to her how their parents treated her when she had done something bad. Ms Chow repeated what AK had demonstrated to her in Court. It was noted that the Mother would point her finger at her, scolded her and hit her. The Father would only scold her.

85. In the last paragraph of her first report Ms Chow recommended a joint custody order. She said:

“ … As AK is in her tender age and is more comfortable to stay with the mother who used to prepare food and accompany her at home, her care and control is suitable to be given to the mother [the Mother] so as to maintain a stable caring arrangement and daily routine for her. For KK, his caring and his training progress and recovery will be more promising under the monitoring of Mr. K [the Father] who used to be responsible for related arrangements. Since the splitting of care and control of the children is not desirable arrangement to the parents, the care and control of KK is recommended to be rested with the same parent.”

86. Ms Chow later explained that she came to the conclusion of joint custody because it was the intention of both parties.

87. The second report (dated August 2009) was prepared some seven months later. It was compiled after a number of visits and meetings, including meeting AK alone twice in her office when the children were brought separately by the Father (accompanied by Rosa) on 20^th August 2009 and the Mother (accompanied by Del) on 1^st September 2009.  When AK was playing with her parents separately on the two occasions in the playroom, she was observed to enjoy the playing with each of them.

88. Ms Chow said in her oral evidence that AK was always expressive during the aforesaid two office interviews. She even took the initiative on 20^th August 2009 to ask Ms. Chow if she would like to talk to her.

89. At the meeting when AK was brought to Ms. Chow’s office by the Father, AK was dissatisfied when she knew the paternal grandparents were present. It was also reported that AK was angry with the paternal grandparents for they chose to stay in KK’s room instead of living in a hotel.

90. It was reported by Ms Chow that AK’s attitude towards Rosa had somewhat changed when she wrote her second report. This time, she said that it was Del who assisted her mother to prepare food for them and assisted in bathing KK. She said AK did not appear to like Rosa any more because Rosa made her angry. Rosa was always sending text messages using her phone when they were setting off for school. As a result she was always in a hurry and very often late to school. This made her unhappy.

91. AK also voluntarily told Ms. Chow good things about her mother, like, giving her healthy foods and helping her to do her homework. She also said the Mother had hit her for the homework matters but she was not hurt and the homework was important for her because it made her smart.

92. In relation to AK’s attitude towards her father, Ms Chow has this to say in paragraph 18 of her report when she saw her in August:

“ … She [AK] used the word “stinky” to describe Mr. K [the Father] and even said that he liked the pig when eating. She told that Mr. K was “of course” in taking care of KK. Mr. K insisted her to go somewhere even though she did not want to go. She also said that Mr. K just only like to play with KK. She did not tell a happy thing when she had time with the father and said that there was “not even one thing made her happy”.

93. Further in paragraph 19 of her second report, she reported AK had said the following when she saw her in September 2009. It is apparent that AK then knew that her parents would live separately:

“… She knew that the father liked her but she did not like him. She said that she played with the father a lot on what the father liked to do and he insisted her to go out when she wanted to stay at home. If she lived with the father, she would cry and keep crying until she returned to stay with the mother. However, she said that the father would blame her if she requested for the mother and she told the Investigating Officer that the father had asked the mother to “go away, it’s not your turn”. If she lived with the mother, she would play happily. She revealed that though she would make the mother angry, the father cared her more than the mother if both were angry with her.”

94. In her conclusion she said that though AK enjoyed an intimate relationship with the Mother, AK still has spontaneous interaction with the Father because her relationship with the Father is still close. As for KK, Ms. Chow was of the view that KK’s rehabilitation requires committed parents, suitable environment, appropriately trained professionals and their input. She acknowledged the Father’s role of research, liaison with professionals and drawing up rehabilitation plan and the Mother’s continuous involvement in KK’s training and daily monitoring of KK’s schedule. She saw the importance of sibling relationship and their social development. In her second report she advised against split custody.

95. Ms. Chow is hopeful that the parties would be engaging in mediation with a view to come up with a mutually acceptable arrangement for the children. She recommended joint custody with care and control of the children shared under a workable care plan.

96. At trial when she was told that mediation did not work out, after much thought, she reluctantly agreed that the Mother is a more suitable person in the circumstances to have custody, care and control of the children when joint custody would not work.  She considered AK is more attached to her mother than the Father. Although she was of the view that the Father had a very clear direction for KK’s rehabilitation, she believed that the Mother is also capable of communicating with the US professionals. She said that KK needs a mother more than a domestic helper and believes the Mother is able to take care of KK and implement his schedule.

97. I can see that it is a difficult question for Ms Chow. It is fair to say that she is ambivalent. It was because at one stage when asked whether split custody is workable her reply was that she would give that recommendation, as it is not impracticable (which is contrary to what she has recommended in her report), with custody of KK going to the Father and AK to the Mother. However she later qualified her said recommendation by saying it was on condition that the parties can cooperate so that the children could maintain a good relationship. It is fair to say that, however, she was not optimistic the parties could cooperate.

98. When questions concerning the alleged use of violence on AK by the Mother were put to Ms Chow by Miss Tsui, counsel for the Mother, Ms Chow replied she treated it as a matter concerning discipline on a child but not child abuse. She confirmed there were no complaints from the Father such as the Mother pushing AK on the floor or kicking her in the tummy, as he did in his affidavits. The only specific complaint about use of violence was pushing AK off the bed when they were in the States.

Dr. Levy’s Evidence

99. Dr. Levy was the appointed psychologist to assess AK’s psychological condition pursuant to the Court’s order dated 16^th January 2009. It is interesting to note that she comes from a family with multi-cultural background which is quite similar to AK. Her father is an American and her maternal great grandparents were Chinese and Japanese. She studied secondary school in a Hong Kong local school before pursuing further studies in the States. She obtained her Ph.D. in psychology in USA in 1999, She was a licensed psychologist there since 1996 and a registered psychologist in Hong Kong since 2001.  

100. She had prepared three reports the last of which is an educational assessment. It is fair to say that this last report is not controversial.

101. Her first report was compiled on 11^th May 2009 after 3 meetings with AK. Her impression was that AK presented as an engaging and cheerful child who was friendly and playful during all 3 sessions. Her high level of activities suggested the possibility of attention disorder. She was observed to be emotionally bonded to both parents.

102. AK expressed to Dr. Levy her understanding of the strained relationship at home. Dr Levy elaborated at the hearing that AK was quite open in discussing the conflicts between the parents. AK believed she and his brother KK were the centre of some of their parents’ conflicts. She also told Dr. Levy that at home “everyone is always yelling at everyone, I don’t like my mom or my dad because they scare me”. From the anger and distress expressed by her, Dr. Levy was concerned about AK’s level of exposure to the parental conflict, and the impact on her emotional well being. She recommended the parties to make it a priority to either reconcile or divorce, and “… take steps to effect change to the current home environment as the present level of stress on AK appears be significant.”

103. It was also observed by Dr. Levy that AK had made a number of statements that tend to be beyond what would be expected for a child of her age. Dr. Levy was of the view that it suggested adult input, or that AK might have been exposed to discussions and information related to the conflict, either directly or indirectly. In her report, she wrote the following under the head of “Clinical Impression”:

“This places an unfair burden on her [AK], and puts her in a position of having to choose sides between parents. If this is not addressed, concerns are raised regarding the possibility that AK’s relationship with one or both parents may be eroded, damaging her emotional well-being.”

104. The adult input, according to Dr. Levy, includes “my dad eats every day like a pig”, her father “drinking alcohol every day and came home. He fell asleep in the toilet, my mother took pictures and showed me”. 

105. It had been asked on behalf of the Mother that it would be entirely normal in a family for a mother to tell children if the father was always drunk. Dr Levy, however, disagreed. She said that since children usually worshipped their parents, discussing that in front of the children would automatically put the father in a negative position and tore down his image. She was of the view such matters needed only addressed between the adults. She, however, agreed that for children older than AK, this might be different. 

106. The adult input also related to the paternal grandparents because AK also said their paternal grandparents “don’t wash their hands because they come from China and then they eat my food. I don’t like to see them because they eat my food”, and “… they come from outside and don’t wash their hands. When they touch me, I feel yucky.” Dr. Levy also said in Court that throughout her sessions with AK, AK did make reference to her paternal grandparents being from China and the perception that they were not clean. Dr. Levy was of the views these racial statements are very polarized and were ones more complex than she would expect from a child of AK’s age.

107. It was stated in the first report that at the end of the second meeting the Father and Dr. Levy went into her office briefly to discuss some logistics for the next appointment. After this session she received an email from the Mother pointing out that AK was distressed by the fact she had spent time alone with the Father. At the 3^rd session, she raised this with AK but AK seemed not surprised that this matter was raised. AK was prepared to discuss with her on this incident. AK expressed that the said brief meeting made her uncomfortable as she thought her father “was talking to you [Dr. Levy] about my mom. He’s telling lies about my mother, he’s saying that she’s not taking care of me [AK]”. AK also wanted Dr. Levy to talk to her mother “about daddy, he real don’t take care of children, he’s faking, so don’t like him.” Dr. Levy was of the view the above things taken together suggested that various aspects of the proceedings or her involvement had been discussed by the Mother with AK prior to the appointment. Despite challenges by Miss Tsui of counsel for the Mother such being guess work, Dr Levy was firm in her aforesaid view.

108. The second report was in fact dated 6^th October 2009 in the form of a short memorandum. It was written in response to a request by the Mother’s solicitors for review of AK’s need for future therapy. The request was made because by then, the Father and Mother had already lived separately for about 3 weeks pursuant to the parties’ consent reached in compromising the appeal. The Mother thought AK’s stress level might have gone down and therefore asked whether AK really needed any therapy. By the time the said request was made Dr. Levy had already completed two sessions with AK on 21^st and 22^nd September 2009 for her educational evaluation. Dr. Levy therefore held a session with AK on 30^th September 2009 and wrote her second report.

109. At trial, Dr Levy said she was struck during the interview as to how completely negative AK was about her father. That was why in the memorandum she raised significant concerns with regard to AK’s current level of adjustment. Her assessment was that AK had completely aligned herself with the Mother, and was consistently rejecting the Father and the paternal family. It was reported in her report that AK had repeatedly described her mother in very positive terms, whereas the Father in very negative term as “stinky” and that she did not love or like him. It was reported in the memorandum that AK volunteered that “… I think daddy is not good, and mummy good.” She added she could also observe this feeling on the part of AK when she was accompanied by her two parents waiting in her waiting room on 21^st September 2009. AK was seen very affectionate with her mother but made unprovoked angry gestures and faces at her father. At trial, Dr. Levy supplemented that AK even shook her fist at her father while hugging her mother. Dr. Levy said the Mother did not say anything. When answering questions put to her at trial, Dr. Levy said she could observe “… she [the Mother] smiled sort of …” Dr. Levy said she considered this a tacit approval from the Mother of what AK was doing to her father.

110. When the Mother was cross-examined on this, she explained that AK initially was very reluctant to see Dr. Levy and she had tried quite some effort in persuading AK to see Dr. Levy. As such she did not want to scold AK which might make her unhappy again.

111. As mentioned above, apart from polarized description by AK of her parents, Dr. Levy also observed AK’s polarized description of her grandparents on this occasion. As reported, AK spontaneously volunteered that her “Japan grandfather and grandmother are kind and cook for me, share their house, and play with me,” while her “American grandfather and cousin are not very good. They only do what they want to do.”

112. At the hearing Dr. Levy further elaborated that it was not unusual to see child align herself with one of the parents. She said what surprised her was the level of polarization that had been observed. On previous interviews before she wrote her first report, AK could be able to say good and bad points for both. However, it occurred to her that AK now had an extreme perspective where her mother was all good and father all bad, and there was no ambivalence about that, which she considered unusual.

113. Dr. Levy went on to explain that when there was extreme polarization against one parent, it was in fact a coping strategy or sometimes a matter of survival for a child. It was an inborn strategy for a child’s survival within the household for fear of displeasing the parent with whom he/she had aligned with on a number of things, including emotional and/or physical rejection or withholding of affection by that parent. It is because from a child’s perspective, it is almost safer to reject the other parent than to express any kind of affection or bond or positive feeling for that parent. She said it was very common for children, probably between the ages of 5 and 10 or 11. She took the view it was a natural response for a child of AK’s age, i.e. 7 years old then. It would be less uncommon for younger or older child.

114. She said extreme rejection is definitely in this case. She, however, was not “100% sure” whether it was caused by actively encouraged or not discouraged.

115. Dr. Levy was asked by this Court whether it was possible that because the Father behaved so badly before AK that she chose to reject the Father. Dr. Levy, however, was not agreeable to this hypothesis as explanation for her observation. She had this to say to the Court:

“It is possible but AK is not describing the bad behaviour from the father towards her. She is describing the general bad behaviour of the father such as drinking, the coming home drunk, the conflict with the mother. And so even with children where the bad behaviour is directed at them, it is rare to see that level of rejection of a parent. Kids idolise their parents.”

116. This is consistent with Dr. Levy’s observation and views in her report. She said it was the emotion which AK displayed when she was discussing the negative feelings for the Father that Dr. Levy felt unusual. She gathered the impression that AK was telling her as “matter of facts” and there was no distress on her. Dr. Levy said when children really felt mistreated by a parent they were usually very distressed by the ill treatment, and one could observe that when one talked about it. She said that in the present case, what could be seen was consistent with some active alienation. She defined alienation as:

“a term used to describe when one parent tries to interfere with the bond between the other parent and the child.”

117. Dr. Levy later said that she did not have enough evidence to say there was active alienation going on, i.e. the Mother was trying to alienate. However she saw there was some inappropriate behaviour that had affected the bond between the Father and AK.

118. Dr. Levy was asked by Miss Rattigan on her view as to the feasibility of AK’s care and control granted to the Father because according to the social welfare officer’s report AK was very attached to the Mother and had already expressed a wish to be with the Mother. She replied that AK was only verbalising she did not love her father and not bonded to him. She, however, was of the view that the evidence showed otherwise. The evidence showed AK was in fact bonded to both parents. Her view was that if care and control were granted to the Father, the bond would continue and would strengthen. Time would serve to repair the weakened relationship between AK and the Father. The bond would probably repair itself. She said if care and control did not go to the Father, the relationship between the Father and AK would risk deteriorating continuously.  

119. Dr. Levy stressed that AK was still very young and did still need her mother. It is fair to say Dr. Levy is not recommending to the Court care and control of AK be to the Father. It is because on the next day of the hearing Dr. Levy expressed that giving care and control to the Father was not the only way to repair the broken bond between AK and her father. She said the most effective way to repair that bond would probably be through sessions with a therapist, firstly just for AK, then the Father, and at some later stage, the Mother. She said it was very important for the child to know that the Mother was fine with her having a good relationship with the Mother.

120. Dr. Levy also did not believe what the second social welfare report said about AK would be crying and crying if she was to stay with the Father. She explained that although it might be what actually had been said by AK, she might not be an actual reflection of how she might really feel deep down in her. If care and control was given to the Father she agreed that it would be a difficult time for both AK and the Mother. AK might feel sad when removed from the Mother. However, that did not necessarily mean that she would not be happy with the Father because rejecting her father was not what she actual felt about her father, according to her assessment.

121. Dr. Levy considered AK’s relationship with her parents a significant concern and source of psychological and emotional distress for her. She considered if these issues were not addressed AK’s relationship with her father would suffer significant damage. In her second report she recommended AK to undergo play therapy. She advised against split custody.

Dr. Tommy Chan’s Report

122. Clinical psychologist Dr Tommy Chan was consulted by the Mother pursuant to Court’s direction dated 7^th August 2009 which expressed concerns about the Mother’s alcoholic consumption and its effect on her childcare ability. The Mother’s level of alcohol consumption was disclosed in a medical note of Dr. Pei who had seen her for other problems. The drinking problem was also revealed in Ms. Chow’s report.

123. Dr Chan was a US trained and licensed clinical psychologist. He obtained his Ph.D. degree in the States in 1994 and was licensed in California in 1996. He has also been registered in Australia and Hong Kong and in local private practice since 1999. He now sees outpatients at two private hospitals and is one of the Legal Aid Department panels of experts. The Mother was referred to see him by Dr. Pei.  He gave evidence on the 4^th day of the hearing (27^th October 2009).

124. His report was dated 13^th October 2009. It was prepared after interviewing the Mother three times respectively on 25^th, 28^th August and 23^rd September 2009. The Mother was unaccompanied by friends and relatives except for the last one when she was accompanied by one of her alleged close friend upon Dr. Chan’s request. The presence of her friend was to provide collateral information to Dr. Chan for verifying what the Mother had told Dr. Chan. It was reported that the Mother met this friend in Hong Kong some two years ago. They saw each other once to twice per week when they were both attending the autism parental training class. They also met occasionally at other social occasions. At the first hearing a Japanese/English interpreter was present while subsequent interviews were conducted in English without interpretation.

125. Before writing the report, Dr. Chan was provided with the Mother’s record kept at the Hong Kong Adventist Hospital as well as the short instruction letter provided by the Mother’s solicitors. The medical documents prior to 25^th August 2009 in Exhibit R-1 had been reviewed by him.  

126. Dr Chan said at the first interview, the Mother clarified that she only drank approximately half to one bottle of wine a few times a week instead of half to one bottle every night as reported in the social welfare report. She said she acquired such drinking habit since the age of 22. The Mother also told him that there was a drinking culture in her family and she started drinking with her parents before the age of 20. Dr. Chan testified that he was told the Mother had no incidents of accidents, mishaps or parenting problem relating to her drinking problem, nor had she ever shown any cognitive or psychological problems typically associated with drinking. She also told him she had voluntarily ceased the habit of drinking at the previous level since the Court hearing last July 2009. She said now she consumed about a bottle of beer or about two glasses of wine per week.

127. Dr Chan applied the Folstein Mini-Mental Status Examination on the Mother. At trial, Dr. Chan explained that it was a commonly used screening tool for someone’s orientation, time, place, concentration and mood and is for assessment of one’s level of awareness. He said it would be possible for one to pick up signs of alcohol problem from the test results. He said a person suffering from an alcoholic problem would display signs consistent with a persons suffering from that problem when his history and daily life functioning were revealed by the patient and confirmation by someone who knew the patient best.

128. Those signs had been helpfully stated in paragraph 2.5 of his report. They included impairment in memory and concentration, being absent-minded, irregular sleep wake pattern, being erratic, excessively irritable, having mood fluctuation such as frequent temper outbursts, becoming verbally and physically abusive or violent related. He said since in his assessment of the Mother he did not observe or hear anything that was of a concern in that regard nor had he observed or told any signs of withdrawal symptoms, he did not considered the Mother did not appear to him to have any sign of alcoholic dependency or alcohol problem. His conclusion was set out in paragraph 5 of his report:

“5.1 …[The Mother] displayed no significant behavioural and psychological signs or symptoms of a diagnosable condition according to the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV).

5.2 Specially, her current mental condition and clinical history is not consistent with someone who has an alcohol dependency or alcohol abuse problem.

5.3 No adverse impact of her behavioural, social and occupational functioning was found in light of he previous long-time drinking habit of about half a bottle to a bottle of wine several times a week. In particular, no signs were found which suggest that her previous and current alcohol drinking habit may impair her parenting abilities in looking after her children. In addition, … no symptoms of withdrawals were reported….

5.4 In summary, YS’s psychological condition is stable and no signs were found which indicate that she is consistent with someone suffering from problems with alcohol abuse or dependency in this evaluation. In light of these findings, no treatment or therapy was recommended.”

129. Dr. Chan’s conclusion was challenged by Miss Rattigan, counsel for the Husband. Dr. Chan conceded that he had neither been shown bundles of the correspondence exchanged between the parties’ lawyers nor any of the affidavits filed herein, not even those made by the Mother, before he wrote his report.

130. He said since the purpose of interviewing a close relative was to collect reliable collateral evidence for verifying what a patient had told him, naturally the more this person knew the Mother the better and more accurate his assessment would be. He admitted it was not a foolproof method and a not-so-close friend would miss some of the important information and thus affecting the accuracy of his assessment.

131. Dr. Chan was shown paragraph 37 of the Mother’s 4^th Affirmation affirmed on 25^th September 2009, which is made after the Mother finished all her sessions with Dr Chan. In that paragraph, she personally admitted she drank some wine every night (my emphasis) before going to bed. In fact in her 1^st Affirmation of 13^th February 2009, she confirmed in paragraph 70 that she would consume a small amount of wine each time and after the children have gone to bed. She even said it is the tradition and Japanese culture to drink a bit of wine before going to bed. It is consistent with what has been stated in the instruction letter to him by the Mother’s solicitors that the Mother had a habit of drinking half to one bottle of Japanese wine or red or white wine each night. It was also consistent with the social investigation report. These are all in line with Dr. Pei’s medical notes. Apparently all are contradictory to what the Mother has told him. Dr. Chan said he had not been shown these affirmations and documents.

132. Dr. Chan was told that it is the Father’s allegation that the Mother was still drinking and was hiding alcohol under the sink in the bathroom. Again Dr. Chan said that he was not aware of this allegation.

133. Dr. Chan was also shown paragraph 164 of the Mother’s 4^th Affirmation in which the Mother said although she had not had the habit of relying on sleeping pills, she did take pills that help her relax a few times a week. It was because by taking care of the children she did not have regular sleeping time. In addition, Dr. Chan was shown that according to the Father’s affidavit the Mother was regularly taking a sleeping pill called “Brotizolam” marketed under the brand name “Lendormin” which was very popular in Japan. It was said by the Father this drug caused residual side effects the next day such as impaired cognitive and motive functions as well as drowsiness, headache, poor concentration and somnolence. The Mother got it from her mother, who was a pharmacist in Japan.  Although Dr. Chan agreed that poor sleep might be caused by fatigue instead of drinking, he told the Court that he had never been told by the Mother that she needed some form of medication to help her sleep or relax. He also said that as far as he knew there was no drug that had only a short time-span and put one to sleep for 2 to 3 hours only.

134. Dr. Chan was also told of an incident in which the food was left burning in the pan unattended while the heat of the cooker in the kitchen was on high around midnight on 19^th October 2009. The next day she was reported by the domestic helpers to have acted strangely and throwing things about. The Mother explained that while she was cooking for KK that night, KK woke up because he had not a good sleep. After putting KK back to sleep she was so tired that she immediately fell asleep. She was very sorry but denied that was associated with drinking. She denied having acted strangely. Dr. Chan admitted that, depending on the pattern and frequency of this happening, it could be a sign of alcohol problem.

135. In giving evidence, Dr. Chan agreed that the recommended maximum healthy intake for woman is around 14 units per week and 21 for men.

Whether to accept Dr. Levy and Dr. Chan’s Reports

136. There is no reason to doubt both Dr. Levy and Dr. Chan not telling the truth of what they have personally observed and been told. Further I consider they are well-qualified professionals and their general views expressed in the particular areas which they are asked to address reasonable and logical. They also have no interest in the matter. As such, in so far as the factual matters which they reported as having personally observed I accept them in their entirety as facts; and in so far as those matters which they said having been told I accept that they had been so told.

137. I find Dr. Levy professional and her observation careful and helpful. I shall rely on her observations and professional opinion, and particularly those set out above in coming to my decision.

138. As for Dr. Chan, I find him a competent psychologist capable of doing an independent assessment of a person’s drinking problem if accurate information is provided to him. However, it is obvious from the above that a lot of information has been deliberately kept away from him. Neither the Mother nor her solicitors have provided him with sufficient information to enable him to know the Mother’s history well. I have no hesitation to conclude the “close friend” brought to him for verification only knows the Mother socially. They only met in Hong Kong for 2 years. The alleged “close friend” is in no position to provide any reliable collateral evidence to Dr. Chan. From what has been set out above it is clear the Mother has lied to or not told Dr. Chan the whole truth. It is understandable that Dr Chan was hesitant to extract information for verification from the Father who is currently fighting with the Mother for the children’s custody. Accordingly, with due respect to Dr. Chan, apart from his general professional opinion expressed regarding symptoms associated with drinking problems and the safe drinking limits for men and women I do not accept his conclusion that the Mother does not have any drinking problem. Obviously he is unable to take into account the full circumstances of the Mother’s case in coming to his conclusion.

The incident on 20^th September 2008

139. This incident was described by the Father as the “last straw” on the camel back because after this incident the Father instituted the present and the subsequent divorce proceedings.

140. According to the Father he had noted in the family schedule that he would go on a junk trip in Sai Kung on Saturday 20^th September 2008 which was his friend and former colleague’s 40^th birthday party. He said this trip had been notified some 2 months before the trip. The Father considered it an important and must-go event because this friend was very helpful to him when they were working together. Furthermore, some other friends and important clients were going as well. He could do networking at the same time. The Mother was unable to attend because she had a friend in town and the children were not invited. This friend of the Mother stayed with the parties in Parkview.

141. There was argument since the start of the week as to whether he should go. It was because in the week following the junk trip the Father would be attending the investors’ conference which would be the biggest event of the Father’s employer. He had told his wife that he would be very busy and not be home the entire week. In view of the Father’s anticipated busy schedule the Mother did not want him go so that he could help take care of the children that Saturday and Sunday. She could then spare some time accompanying her friend shopping around. However, the Father wanted to go anyway. So for the entire week up until the said Saturday morning, the relationship was strained.

142. He eventually went alone that morning despite, as evidenced from the audio recording, some quarrel which might have taken place that morning. The junk was not supposed to return before 5:00 pm and therefore the Father rented his own boat back. I believed he did know the Mother had strong objection to him going and therefore as a compromise he had made arrangement for him to be carried back by his own rented boat. He wanted to be at home in the afternoon to spend some time with the children. Eventually he was able to meet the children and the Mother at a nearby beach that afternoon at around 5:00 pm.

143. After return from the beach the Father showered the children and put them to sleep. When giving bath to AK he found 2 bruises on AK’s back. He said AK told him the marks were inflicted by the Mother. The Father took a video of the marks using his Blackberry phone.  

144. After the children had gone to bed the Mother went to him when he was searching the Internet to look for an additional helper. An argument started on trivial matters as to who was on the junk that day, and whether she was from Sweden or Switzerland. It quickly turned into an outburst of complaints from the Mother that the Father should not have gone on the junk trip and he had spent too little time on the children.

145. The Father left and went into the master bedroom for a sleep. The Mother pursued after him and asked him to leave. He left and went to sleep on the floor of AK’s room, hoping that the Mother would not bring argument into AK’s room. AK had then fallen asleep. The Mother followed him into AK’s room to continue the argument. AK was eventually wakened up. It was not denied that the Mother repeatedly kicked the Father while he was lying on the floor. It was also not denied that the Mother filled up a bucket of water and poured it over the Father when he was lying on the floor of AK’s room where there was a multiple electricity sockets nearby.

146. The Mother did not know that the whole incident was audibly recorded by the Father using his i-phone. The Father’s explanation was that the tape was used as evidence to protect him because the Mother might tell the Police a different version if the matter would eventually be reported to the Police. The Mother said that she was framed up and was provoked for the purpose of tape recording the whole incident to be used as evidence against her in subsequent proceedings. 

147. When the Husband was cross-examined, he said that some time in April 2006 when they had a quarrel which ended up into a fight, there were cross accusations against each other for assault. As a result they were both arrested. They were medically examined and at the end the doctors at Ruttonjee Hospital said that based on wounds it was the Mother who was at fault. He thought he might have been lucky last time and did not want to leave things to chance this time. He wanted hard evidence to protect himself and so when he realised that the Mother wanted to pick up on him he made the recording.  

148. After hearing his evidence in Court and the audio recording I accepted his explanation.

149. At the heat of the argument, the Father reported abuse of AK by her mother to the Police. After the Police had arrived, the Mother also made an allegation that the Father abused KK. At the end the Police did not press any charge against them. Their case was referred to the Social Welfare Department for follow-up.

150. It is suggested that the Father has deliberately provoked the Mother prior to pressing the recording button. After listening carefully the audio recording and going through the transcript (Exhibit 19A) I reject this suggestion totally.

151. It can be gathered from the recording that the Mother was greatly frustrated. Apparently she was complaining that she had been tied up with the children all week. In any event I accept taking care of both AK and KK an extremely demanding job and is very often frustrating. The Mother herself is also a very demanding and meticulous mother. So I believe after a whole week of looking after two difficult children she might feel stressful and exhausted. Her effort, however, seemed not recognized by the Father or not recognized enough to her satisfaction. On the other hand, she was of the view that the Father was always out drinking with friends. “Saturday is my holiday” (page 3 of 19A) is obviously her outcry for a break. The reality she was then facing might be so hard and unhappy that she wanted a change. She has been in Hong Kong for some years taking care of two problematic children without family support. She might want to be back to Japan. Her frustration cumulated beyond tolerance, causing an emotion eruption that evening.

152.  However, all these serve to explain why she acted in the way she did but definitely cannot be an excuse for assaulting the Father and paying no regards to any potential danger and damage that her conduct might cause to AK. Obviously hitting and pouring water over someone amount to physical abuse. Pouring water over someone sleeping near to multiple sockets is an irrational act as it causes a fire hazard. Involving AK into their conflict and encouraging AK to express dissatisfaction of the Father in the midst of their quarrel put AK in a difficult position, causing in her unnecessary emotional stress. It is an example of irrational behaviour.

153. Further, she was obviously not framed up or provoked as alleged. It is apparent that the Father has left the master bedroom. He was then trying to avoid the quarrel but was pursued. The hitting and kicking were out of anger. She was not invited to do so, and instead, she was asked to stop. One can hear that despite protest the Mother did not stop hitting the Father.  She even said she did not care. The sound of kicking and hitting was so loud that it could be heard in the recording. She was then totally over-powered by his anger and emotion. She was driven by her fury and frustration and did not even bother whether AK would be awakened as long as her rage can be released and frustration ventilated. She apparently had difficulty to control her own emotion that evening.

The Row Over KK’s Haircut on Sunday, 19^th July 2009

154. The background is this. After the Father has taken out a summons in May 2009 asking for, inter alia, interim care and control of the children, the Court gave directions in June for the access during the interim, pending argument of the summons in late July 2009. It was provided that the Father do have exclusive access to the children every Tuesday and Thursday from 5:00 pm to 7:00 pm, and on alternate Sunday Saturday basis from 8:00 am to 8:00 pm. The Mother had her own set of time for exclusive access to the children. It was not in dispute that Sunday 19^th July 2009 was the time when the Father enjoyed his exclusive access to the children.

155. Some time before the 19^th July the Mother sent an email to the Father saying that KK needed a haircut because he was getting hot at night. She asked who was to do it for KK. The Father said he would do it. So on Sunday, 19^th July 2009 when it was his exclusive access time he used electric clippers to do KK’s haircut. The Mother, however, was there.

156. It was the first time the Father did it as it was used to be done by the Mother with domestic helper assisting in holding down KK. It was because KK was very sensitive to haircut. This time KK was standing in the bathroom without anyone holding him down. He was moving around, making loud voice and crying. The Father wanted to cut it very short but the Mother wanted a length of not too short.

157. In his evidence in Court, the Father explained that since the Mother said KK was sweating a lot and the weather was hot, he thought the shorter the KK’s hair was, the better. The Husband said after some exchange with the Mother, he compromised and cut the hair to the length the Mother desired. However the Mother kept complaining that he was not doing it right. The Father had repeatedly stressed that it was his exclusive access time and she should leave. She did not take heed of what he said. He was annoyed and eventually said that if she did not leave he would cut it to the length he liked. She still did not leave. He therefore started to cut shorter. The Mother stopped the Father by grabbing his arm. Hot argument and physical struggle ensued. In the end the Mother managed to take KK and AK to the master bedroom and locked it. Alleging the Mother had become extremely irrational and unstable, coupled with the fact that the Mother locked the children in the room when it was his exclusive access, the Father reported the matter to the Police.

158. As a result, KK’s hair was cut with a patch almost without hair near the forehead: see the photograph taken by the Mother on page 728 of the bundle. It was probably caused by jerking of clippers when the Father was struggling with the Mother.

159. The Father explained that he had already compromised with the Mother by cutting KK’s hair to the length the Mother wanted and allowing her to be present at a time that was his exclusive access time. He added the Mother had already breached a court order. He explained what he could not tolerate was the Mother’s repeated complaints of the way he did KK’s haircut. When asked by this Court during his cross-examination, he explained that he had been provoked to react unreasonably and said in retrospect he had made a mistake to link the length of the haircut to the presence or absence of the Mother during his access session. He admitted that, regardless of whose fault it was, as a father he should have made decision to avoid conflict situation that might affect the welfare of the children. He did blame himself for not doing that, and in fact even exacerbating the conflict.

The Episode of KK having problem sleeping on Monday, 20^th July 2009

160. According to the Mother KK was unable to sleep that evening and became irritated around 9:30 pm inside the master bedroom. When KK screamed the Father knocked the door hard requesting to enter. The loud noise, said by the Mother, irritated KK further and made AK anxious. She said that she sent an email to the Father asking him to leave them alone and she would put KK back to sleep. According to the Mother the banging lasted for half an hour.

161. The Father said that he noticed KK was distressed and hyperactive that evening. From 8:30 pm onward he actually heard him struggling with his sleep. He therefore knocked on the door at 9:30 pm and wanted to know KK’s condition with a view to help calm him down. He said he knew the tricks to put KK back to sleep, such as carrying him in arms, singing him songs or massaging him. However, the Mother would not allow him to see KK and refused to open the door. He said KK’s struggle lasted for about 2 hours. At around 11:30 pm when the Mother went out to the balcony for a cigarette, he entered the master bedroom and found that the room was filled with smell of alcohol.

The Incident on 4^th August 2009

162. The Mother said on 4^th August 2009 the Father returned at around 8:00 pm in extremely foul mood and was drunk. The Mother was then in the bedroom with the children. The Father then entered the bedroom demanding the Mother to sign the tax return. She refused on the ground she needed time to read it before signing. The Father left the room in anger. Later he returned to demand KK’s video camera and the Mother refused on the ground she required the camera everyday for his treatment. The Father became very furious and picked up the Mother laptop with an attempt to smash it. AK and the Mother tried to stop him but the laptop was finally snatched and was thrown on the floor of the living room. The Mother demanded return of the computer and called the Police.

163. Before the Police arrived the Mother and the children returned to the master bedroom and locked the same. It was because AK and the Mother were very frightened by the irrational act of the Father. However, the Father came again, knocked and banged repeatedly on the door. The door was finally kicked open and the laptop was thrown back to the Mother. The door lock was permanently damaged.

164. The Father denied being drunk and in a foul mood that evening but admitted he was upset and very frustrated when she refused to sign the tax return and he was denied use of the video camera. He did not believe the Mother needed the camera every day. He said he did not recall having banged on the door. He said he was provoked but regretted some of the actions that evening, conceding he was “…immature and a bit irrational”.

165. I accept his explanation and believe he was upset and had acted irrationally that evening.

The Parties’ Problem with Alcohol

166. After hearing the evidence, it is clear that both parties enjoyed drinking very much. It is the Father’s evidence that when AK was young, they never had dinner without alcohol. They even develop within their family a tradition that AK can have a seep of champagne on her birthday, bearing in mind AK has just turned 8. It is the Father’s evidence that at AK’s birthday party, they also served alcohol to parents of children attending the party. It was also the Father’s evidence that AK’s farewell party to her kindergarten teachers, they served alcohol. Almost all teachers, parents and even the principal were drunk. When they were in Taiwan, they used to go out a lot and drank with friends. Even when they were in Hong Kong and when their marriage was intact they very often drank together. In fact I believe both parties are heavy drinker. When this Court sought clarification on how much the Father drank, he admitted, and this Court accepted, that it was about 25 to 30 units a week. Since per Dr. Chan’s view the healthy limit for man is only 21 units per week, the amount the Father consumes clearly exceeds recognized safe limit.

167. As for the Mother, for the obvious reasons which I have elaborated in the early part of this judgment, I believe that she has not told the Court the truth. I believe Ms. Chow has accurately reflected the amount she drank in her report. I also accept the written evidence of the Husband’s boss that it was the Mother instead of the Father who was most intoxicated at drink parties, so drunk that he had suggested the Father to take her home on one occasion. He personally observed that after leaving his front door, the Mother vomited all over the communal front garden that everyone knew or saw.

168. I understand the Mother disagreed with what had been stated in Dr. Pei’s medical notes to be the correct estimate, i.e. 50 units per week. She said she was then too weak to talk and it was either the Father or domestic helper who accompanied her to see the doctor and told the doctor this. She denied this an accurate amount. However, I do not accept her explanation. Since Rosa was not on good term with her, I do not believe she then accompanied her to the hospital. The Father admitted that in his cross-examination it was he, and I accepted, who accompanied his wife to the hospital.

169. In any event the Mother’s explanation cannot assist her. The medical consultation took place some time February 2007, a time when his husband had not yet contemplating a divorce. I do not believe that her husband was then contemplating a custody fight and therefore had started to deliberately exaggerating her alcoholic problem. I believe the information was given to Dr. Pei with a view to enable her to come up with an accurate diagnosis and treatment plan for the Mother’s shingles problem. It was therefore the best estimate of the Father. In light of her own admission to Ms Chow and in her own affirmations, I have no reason to doubt the accuracy of this estimate.

170. I accept it as fact that this is the usual level of the Mother’s alcohol intake. Dr. Chan agreed that 12 unit per week is the healthy maximum for women. Given that the Mother consumes half to a bottle of wine everyday, and some of which is Japanese sake, souchu and whisky which have higher alcoholic contents than normal white or red, the Mother’s level of alcohol consumption is excessively high. It goes beyond universal recognized safety level for women.

171. I do think drinking affect both the Father and the Mother, though each to a different degree. The Father admitted in his evidence that he had hangovers. The Mother had shown pictures showing the Father drunk in her affirmations. I believe some of them were taken when the Father was drunk but some were taken after the Shun Tak attack. It must have affected his family life because he came home late and his wife was complaining. However, on balance I do not accept there is sufficient evidence suggesting his drinking has affected his work in any material way. He worked as securities trader who must always with full cognitive capacity and whose work is very stressful. Any mistake caused by his drunkenness will definitely cause substantial loss to his company and clients. His former boss had in fact written a letter to the effect that he had never seen the Father coming to work drunk and he did not find the Father’s work being affected by drinking in any way. He confirmed the Father did not appear to him to have any drinking problem. I have no reason to doubt his evidence.

172. I understand the Mother has alleged in her evidence that the Father was always drunk. One of the examples she quoted was when they were in the States, the Father was so drunk that he was unable to wake up the next morning in time to attend KK’s medical appointment. The Father denied and explained he was then suffering from a serious jetlag. On balance, I accept the Father’s explanation. I am of the view the Father’s drinking does affect his relationship with his family but not his work. He may have hangovers sometimes but never close to what the Mother has depicted the Father to be in her evidence.

173. It can be heard from the audio played that the Mother was urging the Father to quit drinking and medication. After hearing the Father’s evidence, I accept the Father’s explanation that he takes the medication – a kind of injection for protecting his liver and boosting up his immune system when he is expecting intake of large volume of alcohol for special occasions, e.g. investors’ forum or the Rugby Sevens. It does show that he occasionally drinks a lot. It also shows that he has insight of his own problems and takes precautionary measures to protect himself.

174. Dr. Chan has identified some of cognitive or psychological problems typically associated with drinking problems as being:

“… impairment in memory and concentration, being absent-minded, losing personal items, missing appointment, excessive and irregular sleep wake pattern, slurred speech, … being erratic, excessively irritable, having apathy, having mood fluctuation such as frequent temper outbursts, becoming verbally or physically abusive or violent related to drinking.”

175. I do not find there is sufficient evidence to show the Father exhibiting any of the aforesaid symptoms that indicates he having a drinking problem.

176. Although the mere existence of any or some of the aforesaid is not conclusive that one is suffering from drinking problem, the totality of evidence in the present case do point to the direction that the Mother, instead of the Father, is suffering from some cognitive or psychological problems associated with drinking, and I do so hold her problems are affected by her alcohol drinking.

177. I accept the Father’s evidence that the Mother drank a lot to the extent that she was abusive to him physically and verbally.  I accept that in the evening of 20^th September 2008 the Mother had drunk. It could be heard from the audio recording that she did not deny. She attacked the Father and continued to do so despite repeated request to stop. The kicking and hitting were so loud that they can be heard clearly from the recording, and they cannot be stopped because she was then unable to control and reason.

178. I accept the evidence that the Mother brought ice into the master bedroom and kept wines in the bathroom cabinet (which the Mother also admitted). It suggests that she continued drinking without telling Dr. Chan. I also accept the Father’s evidence that the Mother has difficulty getting to sleep and has regularly relied on sleeping pills. The fact that she had an irregular sleep pattern was corroborated by Rosa and the Father who said that the Mother very often woke up late. Although the Mother explained the pills helped her relax because she has irregular sleeping hours due to taking care of the children, on a balance, I prefer to believe the caring of the children only aggravates the problem rather than being the cause of the problem.

179. Further, the Mother explained the burnt food incident which took place on 19^th October 2009 was an isolated incident which had nothing to do with drinking. However, given the evidence of the domestic helper that she smelt alcohol and the Mother was behaving strangely the next morning, on a balance, I believe she drunk that night. Her absent-mindedness on that night was caused by alcohol.

180. From the audio recording on 20^th September 2008, it is evident that the Mother showed very irrational behaviour, such as continuing physically and verbally abusing the Father in the presence of AK despite protest, and pouring water over the Father with no regards to potential fire hazard when there was a multiple electricity socket nearby. The Mother was also observed to have a very drastic mood fluctuation. From the recording the Mother was heard angrily shouting at the Father, complaining that the Father drank out too often and not taking care of the children. She was then speaking at high voice and sometimes screaming. However, her mood changed quite abruptly in the midst of the conversation. It can be heard that she suddenly laughed while she was complaining (at about 16:14 min of the CD exhibited as RK-19). Probably in view of the strange mood change and the smell of alcohol, the Father asked whether she was drunk. She did not deny.

181. The facts of this case as illustrated above show that the Mother does in fact exhibit almost all the symptoms said by Dr. Chan that are indicative of an alcohol problem. The natural and logical inference is that her excessive alcohol drinking affects her. It affects her relationship with people and daily activities. It certainly has a negative effect on her child care ability.

182. Furthermore, I think it is her apparent incapability to deal with her own alcohol problem or lack of insight of her own problem that is most worrying. From the available evidence, her attention has been drawn to the Court’s concern about her drinking problem, and the impact it has on her childcare ability. Instead of making an effort to address the problem, she makes effort to hide her drinking problem and downplay them to Dr. Chan. This is very disappointing. One therefore doubts whether she really cannot help herself and therefore hides the problem or she simply has no insight of her problem, despite being alerted to it.  

183. One further example of her hiding the truth is that under oath in Court she said she did not drink any alcohol when was alone with the children. She was obviously not telling the truth because it was shown that she ordered wine at Disneyland for KK’s birthday on 14^th January 2010. She then said this was a happy occasion and she only had a glass. However the receipt from Disneyland showed that she ordered a whole bottle. Her explanation then was the house wine not good enough. I must say her explanation is not impressive.

184. At Trial, Dr Chan said that one of the problems with people who have alcohol problem is that they deny having a problem. Again she fits in the description.

185. Given her present mindset she probably will not be receptive to any professional advice and intervention to deal with her alcohol problems. I do not have faith she will address this problem because to her this is not a problem. At most she may be paying lip service to Court’s direction regarding her drinking problem. It is very doubtful whether it is in the best interest of AK and KK if their custody is vested in her.

Use of Violence and Abusive Behaviour

186. Both parties are accusing the other of hot temper and lack of patience. Each accused the other of being violent and abusive to each other and abusive to the children as well.

187. The Mother said the Father is a violent person. She said there was one incident in 2007 when they were back from Macau together with friends. The Father had a quarrel with a man on board the ferry and had a fight finally with several men at the Sheung Wan Macau Ferry Terminal.

188. The Father explained that he asked a man sitting behind him on the ferry not to kick hard on the chair as he wanted to have a sleep. He admitted having used foul language. That man, probably a triad member, talked back also in foul language. Later, he was assaulted by 10 to 15 men after alighting the Shun Tak ferry pier, probably summoned to wait for him by the man with whom he had an argument. In the cross-examination, he admitted it was a mistake on his part because the whole matter could have been avoided if in the first place he could be more polite instead of swearing. He admitted he was immature swearing someone in public. He said he had learned from this experience and he was lucky not seriously injured. I accept his explanation.

189. The Father admitted having slapping AK three times at most but those were all born out of frustration. He said now when AK is not behaving well the way to discipline her was by ignoring her followed by talking to her about the mistakes afterward. The Father also admitted having slapped KK once, also out of frustration, because he kept spitting out food just fed to him. He said he regret for what he had done.

190. The Father in his evidence stated quite a number of incidents in which the Mother physically abused him. Very often these incidents happened after she had consumed alcohol. 

191. As stated by the Father in the above, there was a quarrel that took place in April 2006 in which he was sent to Ruttonjee Hospital for examination. The Mother was later charged and bound over for this assault. The Mother did not deny it.

192. The Father said that the Mother picked up a fight with him on 20^th September 2008 on trivial matters. He said he was assaulted. This was first mentioned in the Father’s 1^st Affidavit sworn on 29^th October 2008. The Mother originally denied. From the audio recording (RK-19), it is clear the Mother followed the Father despite trying to avoid her. From the recording, the kicking and hitting are of such force that they could be heard in the recording. This audio recording was only produced at a very late stage with a view to rebut the denial of the Mother. From this piece of evidence, I think it would be difficult for the Mother to deny she is not a violent person, at least towards the Father. She may think the Father is strong and sturdy and therefore several punches on him do not really hurt.

193. As an example of the Mother abusing AK, the Father said the Mother pushed AK off the bed on 21^st January 2009, and as a result her head hit the nightstand. The incident took place during a trip of the family to Connecticut USA after the present proceedings for the purpose of KK medically examined by the US professionals. He said the family was then having dinner but AK was not hungry and therefore was playing. She later went to sleep without dinner as she was sleepy. When the Mother realised that she tried to wake AK up. However AK did not want to wake up. The Mother therefore pushed AK off the bed. AK hit her head against the nightstand and was crying. She later complained to Rosa that she head was painful. The Father’s complaint was corroborated by Rosa’s evidence.

194. The Mother’s explanation was that AK was asked by her to eat dinner, take a shower and change her clothes as she was wearing dirty clothes in her bed. When AK woke up she lost her balance and fell on the floor. She immediately pulled her up and checked whether she got injury although AK said she felt painful in her forehead. She later took her dinner, had a shower and changed her cloth. However, she said the Father was drunk heavily after consuming the whole bottle of wine that evening. She went on to say that the Father was so drunk that he was unable to wake up to take KK to the scheduled appointment the next morning. On 21^st and 22^nd January 2009, it was the Mother’s case that the Father was shouting and screaming.

195. This incident is the subject matter of cross-examination of the Mother. After hearing her explanation, I verily believe she was then so angry because of AK’s unwillingness to act as instructed and so frustrated because of the indifference attitude of the Father and Rosa that she might have used excessive force. I do not believe that she deliberately pulled AK off the bed with an intention to hurt. However, the question is she has difficulty controlling her temper. Despite the fact that she might not do it intentionally this time, for reasons in the following paragraphs, I believe the Mother has inappropriately used force, and sometimes excessively, on AK.

196. The Father’s evidence that the Mother was abusing the children, particularly AK, not only coming from himself and Rosa, but also from third parties. Some of them are briefly summarized as follows:

i)   Ms Chow, the social worker, has reported that the Mother had admitted she disciplined the children by beating them with bare hands. She however agreed to adjust her child disciplinary style and would not hit the children again. AK said to Ms Chow that when she said something bad the Father would scold and ordered her to stop. The Mother would scold and hit her. In Court, she repeated what AK had demonstrated to her on how the Mother scolded and AK;

ii) Dr Levy reported the Mother had acknowledged how she hit and grasped AK onto the chair when AK failed to complete her homework. AK also told Dr. Levy that her mother used to hit on her head when she was angry while the Father would just talk; and

iii)   Mr DT of the ARN also confirmed that as reported by his therapist, they saw the Mother screaming and scolding AK in front of the therapists and there was one instance the therapist saw the Mother kicking her in the stomach. When KK tried to bite the Mother the Mother slapped him and the therapist saw this.

197. I have no reason to disbelieve the above witnesses, who are independent ones. Furthermore, the Father’s case is that even on 20^th September 2008 when he bathed AK he could still found bruises on AK’s back and for this he finally reported the matter to the Police. At trial the Mother denied this. The Mother’s case was put to the Father that if there were bruise marks, the Police should have found them and charged the Mother. In rebuttal the Father said he videoed them with his blackberry and played the video in Court. It is obvious from the video that there is a bruise on AK’s back. In fact according to the audio recording (RK-19A) when the Mother was asked on the bruises she did not deny but said “I don’t care about that…” I accept that the bruises on AK were inflicted by the Mother.

198.  In the circumstances, the totality of the evidence suggested she did regularly physically abuse the children, particularly AK. She may be doing it out of frustration in child discipline or she cannot help controlling her emotion. In light of Dr. Chan’s list of symptoms associated with drinking, on a balance, I do believe drinking has affected her to the extent that she really cannot control her outbursts of temper, and therefore occasionally abuses the children when she has frustration.

199. Apart from being abusive to him and to the children, the Father complained that the Mother is also abusive to domestic helpers. After their 1^st Domestic helper Grace had left, they employed another Filipino domestic helper Gretchen. Gretchen went to Japan with the family in August 2006. The Father, however, returned to Hong Kong one week earlier. However, when the Father picked them up at the airport on their return, Gretchen complained that she was physically abused by the Mother in Japan on her ribs. Gretchen later left their employ and filed a complaint with the Labour Department against the Mother for physical abuse using bruise marks on the arm caused by KK’s bites as evidence. He said that when in Japan he regularly saw with his own eyes that the Mother shoving Gretchen out of the way. He therefore did not think Gretchen lied about being abused, although he was sure the bruise marks relied on by Gretchen were KK’s bites mark. It was because they all had them on their arms.

200. I accept the Father’s evidence in this respect.

Parental Alienation

201. I agree with Miss Rattigan’s submission that there is overwhelming evidence the Mother is interfering with AK’s relationship with her father and the paternal grandparents. The evidence of Dr. Levy set out in details in the preceding paragraphs is very telling and I do not intend to repeat it here. I have no hesitation to accept her evidence and opinion in their entirety.

202. Again, as evidenced from the audio recording of the incident that took place on 18^th September 2008, the Mother had repeatedly involving AK into her conflict with the Father. Instead of trying to avoid a full display of their conflict before the children, she seemed to have no hesitation to bring their conflict before AK. She followed the Father into her room, hit and pour water over him in front of her. She has repeatedly asked AK to condemn her father for not taking care of children and encouraged AK to complain her father. In the cross-examination she admitted having told AK that her father did not like and did not know how to take care of children. It occurs to the Court she does not have the slightest idea that this is something she really needs to avoid. The effect is devastating. It tears off AK’s image of her father and put her in a difficult position emotionally.

203. One vivid example of how much AK is being influenced by her Mother is that both Ms Chow and Dr. Levy have observed AK always describing her father as “stinky”. This is exactly what can be heard from the audio recording when the Mother scolded the Father as “stinky”.

204. Both Ms Chow and Dr. Levy have taken snapshots of AK’s relationship with the Father and Rosa at different time between late 2008 and 2009. From Ms Chow’s report AK regarded Rosa her best companion in January 2009. When they were in the States AK even shared with Rosa her head was painful after having been pulled off the bed by the Mother. However, it is really shocking to note that AK did not appear to like Rosa anymore in August the same year. She made complaints against her sending SMS and arriving at school late. It is difficult to believe this drastic change has occurred within so short a period of time. Rosa is even said to have abused AK recently and was not allowed to take care of AK anymore. I have gone through the correspondence exchanged between the parties’ solicitors concerning the Father’s complaints of there being a systematic attempt to remove Rosa from the children’s care routine. Rosa is regarded by the Mother an alliance of the Father. The Father’s relationship with AK deteriorated during this period. At the same time AK’s impression of Rosa also changed. Taking the totality of evidence in this case, apart from there being alienation against the Father, I believe there is also alienation going on removing Rosa from the children’s care routine.   

205. My conclusion is that the Mother is campaigning that the Father is a bad father and the grandparents dirty, impolite, not loving and not caring. Dr. Levy said she was not sure whether there had been active alienation going on. She obviously did not have the benefit of the audio recording. However she said an example of active alienation may be a statement that your father hates children. This appears to be what exactly the Mother is doing in this case. Taking into account of all the evidence including the audio recording, I am of the view that there has been active alienation going on. The Mother is purposely making AK believe that the Father is a bad father and not taking care of her and only she is good and loving.

206. From the available evidence, particularly the observation and opinion expressed by Dr. Levy, I am not optimistic that if care and control were granted to the Mother, she would promote her relationship with her father, not to mention her relationship with her paternal grandparents. I agree with Dr. Levy that if care and control of AK was granted to the Mother, there is a risk that the relationship between the Father and AK continuing to deteriorate.

KK’s Prospect of Recovery

207. It is the Wife’s evidence that the Father has long working hours. He goes to work at 6:00 to 6:30 in the morning and return home after the children have gone to bed. He mainly leaves the daily caring of KK to the domestic helpers, and sometimes the Mother. The Mother mainly helps in cooking. However, I believe that when the Father is at home, particularly on Saturday, Sunday and holidays, he takes care of KK’s treatment, e.g. taking KK to the hyperbaric chamber.

208. The Father’s case is that the Mother only involves herself in KK’s treatment plan since the start of the proceedings. The Mother denies it. However, I accept the Father’s contention as they are corroborated by evidence of professionals involved in KK’s recovery, which I have no reason to doubt their truthfulness:

i)   DT of ARN has stated that since day one it was the Father who was involved in the recovery plan, research and follow-up. He said the Mother’s involvement with KK has been very minimal, and was not even involved with KK’s therapy session at home. It was only since the latter part of 2008 that she started to involve herself;

ii) Lisebeth Krebbers said the Mother seldom came to the therapy session until around April 2009;

iii)   Dr. O’Hara in her letter of 26^th August 2009 stated that the Father is their primary contact with regards to KK’s treatment until January 2009. A lot of regular phone consultations were made to them. In the said letter, she said that the Mother only joined these consultations recently (i.e. around August 2009). She said since January, the Mother had started to communicate with Dr. O’Hara by emails but the problem was that she always provides conflicting information as the Father. Dr. O’Hara said his her email to the parties, “… we quickly urged them to participate in a call with us on March 2009. We felt it imperative to let them know they must work together for KK’s benefit, and sinceRKhad invaluable experience and deep knowledge of our prescribed treatment,YSshould seek his opinion on some matters related to KK’s treatment. We counselled that disagreeing with each other is a normal part of the process for parents treating anautistic child, and we would help them through it. However, they needed to communicate with each other first. We also urged them to seek a mediator, if not for matters concerning their divorce and custody of the children, at least to discuss KKand his recovery roadmap. …”

209. In Court, when the Father was giving evidence about KK’s treatment he demonstrated to the Court he had picked up well a whole domain of knowledge regarding autism. He also appears to have an excellent grasp of the purposes for which KK was prescribed certain kinds of medication or therapies. An example is that KK is advised under the biomedical regime against taking painkillers which typical children take, e.g. acetaminophen or paracetamol. He knew that these drugs would cause lower glutathione level in the body that was exactly what KK now needed to boost up by taking supplements in his biomedical regime. I am sure the Father has done an in-depth research of autism and the medication that benefits KK most. As seen from the email of Dr. O’Hara referred in the preceding paragraph, his knowledge and involvement is highly commended. I believe he is the one who orchestrated the implementation of the therapies and related the results to the US medical teams for assessment and feedback. I accepted the Father is the primary contact with the US professionals.

210. Having said the above, I do not think the Mother’s later involvement is with ulterior motive only for the purpose of the lawsuit. I believe she has realised the parties are now going to divorce and she may be the main caregiver of KK. She may want to catch up with things she has missed out because she has left everything to his husband in the early part of KK’s treatment.

211. I accept she may not be as optimistic as her husband in the biomedical and the ABA treatment for KK. It is not the mainstream. I shared Dr. O’Hara’s view that disagreeing may be a common occurrence in parents with autistic children. I do not think the disagreement between them really matters. She may want KK to be subjected to other treatment because she as KK’s mother must be very concern about KK. When KK does not show improvement she may wish to try other treatment options which she learned from other sources. Further, she is perfectly entitled to air out her views on KK’s treatment so as to come to a mutually acceptable roadmap with the Father for KK’s recovery. However, the evidence in this case shows that the Mother does not disagree. She agrees Dr. O’Hara being one of the best, if not the best. What raises a serious concern in the present case is that she fails and/or refuses to communicate with the Father.

212. Emails exchanged between the parties since February 2009 have been exhibited showing that when KK was having a problem the Mother took him to see local doctors. However that had not been communicated to the Father and as a result, KK was prescribed medicine that might be inconsistent with KK’s biomedical regime. Suppositories containing common kind of painkillers for typical child had been prescribed and used. The Mother later explained through her then solicitors that she used them upon medical advice from local doctor. I totally agree that in urgent situation the sorts of medicine to be used for KK is entirely a matter of professional judgment. That is why there is a need for cooperation and sharing of information between the parties for the benefit of KK. It is not in dispute that the Father’s emails had never been answered. As a result the Father needed to contact the doctor direct for details of the medication prescribed. The Mother explained that she was too busy and tired to reply. However, email is not the only way of effective communication. Making a phone call or discussing the matter face to face is equally effective, especially when the parties were then still living under the same roof. Why she did not see fit to voluntary tell her husband of KK’s situation and needs to hide under the defence of insufficient time to respond? The crucial issue here is not disagreement. The issue is her refusal and/or failure of communication. This clearly affects KK’s interest.

213. KK was in fact brought to the hospital by the Mother. I accept the evidence of the Father that this was done without his knowledge and before breakup of the marriage the Mother used to have a discussion with him before doing so. It was after this incident that the Father decided to bring in his parents to help him keep track of the welfare of the children. I have no reason to doubt that the Mother was then taking KK to the hospital out of good intention. Her judgment of KK’s condition then was obviously different from the Father. She might have made a perfectly smart decision or an honest error of judgment. In my judgment, it does not really matter. The question is not whether she gets it right or wrong. The question is her failure or refusal to respond to the Father’s request for KK’s information which may compromise KK’s interest.

214. The Father exhibited an email dated 10^th August 2009 from Mr. DT stating that the Mother even said to ARN that she would cancel all the ABA sessions if ARN could not accommodate them a time she preferred. The Father complained that this change of schedule has never been communicated to him.

215. There has been evidence that the Mother unilaterally stopped KK’s medication and supplements without prior discussion with the Father. The Mother’s explanation was that KK had a bad side effect. The Father said that exactly KK was giving the proper and expected reaction to the prescribed medication. The problem was he was not told of KK’s reaction. Furthermore he could call the doctors direct through the hotline for further advice.

216. At trial, the Mother disclosed that when she and KK were in Japan February 2009 for reassessment of KK’s disability status for a Japan Government allowance, KK received treatment as well. The treatment has not been disclosed in her affirmation. The Father expressed total surprise as he had never been informed of that. In fact prior to the Wife’s leaving for Japan solicitors for the Father had expressly warned the Mother that she should communicate with the Father on treatment. This letter remained unanswered. Miss Rattigan invited the Court not to believe the Mother’s evidence in this respect. Alternatively, Miss Rattigan submitted, and I agree, this unilateral act of the Mother and her refusal or failure to communicate it subsequently to the Father is unacceptable in the best interest of KK. 

217. Although the Father has shown letter from Ms. Rae Suba, the Paediatric Occupational Therapist who prescribed the brushing and compression exercise for KK during their last visit, confirming that the Mother did not do the exercise in the proper way, I do not consider the Mother should be blamed for that. After all she is not a professional and has just seen the demonstration a few times only when they were in the States briefly.

218. No doubt taking care of an autistic child is stressful and tiring. It requires dedication of parents, advice of professionals and assistance of helpers. The Father has demonstrated to have a good knowledge of autism and the medication being prescribed to KK. Equipped with these knowledge the Father is able to make sense of the response and behaviour of Kai and is in a better position to assess whether KK is reacting to the therapies or making progress. It would be in the best interest of KK if they can cooperate so that every possible signs can be picked up and interpreted and treatment adjusted accordingly. The refusal or failure to communicate by a parent will definitely render ineffective any treatment administered or to be administered. The Mother’s conduct is not in the best interest of KK.

219. Furthermore, it appears difficult, if not impossible, for the parties now to uproot KK from the present course of treatment and switch to an entirely new regime of treatment. Accordingly effective and efficient communication with the US medical professionals is most essential. The Father obviously stands in a better position than the Mother in doing the job. I agree with Ms Chow, the social welfare officer’s comment that recovery of KK will be more promising if his custody is vested in the Father. He has a clear direction of what KK is doing.

Willingness to Compromise

220. Numerous instances had been said of the Mother’s unwillingness to compromise and allow co-parenting. One of these examples is the incident that took place on 20^th July 2009 (see paragraphs 160 and 161 above). Is it not that putting KK back to sleep something that requires immediate attention and therefore the Husband’s request needs be dealt with immediately? However, instead of simply opening the door to accede to the Father’s request or say simply no, she chose to communicate by sending an email via the Internet to the Father who was as close as next door. I wonder how one will envisage the communication be sent to his email when the one you are talking to is only separated by a door and under the same roof. The way of communication and its choice are difficult to understand. One logical inference is that the Mother has never thought of opening the door and she simply did not care whether the means of communication was effective. She simply did something to register her refusal. That all what she cared to do. She simply did not want to talk.

221. Further, mediation was proposed by the Father’s solicitors on 25^th March 2009 following Dr. O’Hara’s advice earlier on to the parties. The Mother was urged to treat this as a matter of priority. About one month later an experienced mediator Mr. Egerton was proposed when the Mother’s solicitors showed no response. Again no response was received. About 2 weeks later a reminder was issued. In this letter, mediation being an advice from Dr. O’Hara for KK’s sake was reiterated. There was again no reply. The importance of mediation, particularly for KK’s benefit was stressed again in a follow-up letter of 10^th June 2009. Finally the Mother’s response came on the same date. She counter-proposed another mediator. The Father immediately accepted the counter-proposal on 16th June 2009.

222. So the Mother took some 3 months to respond. The Mother’s explanation was that she was too busy to respond and it was difficult to find a suitable mediator, preferably a Japanese, who was in a position to know this family with foreigner and autism child. However, it simply takes too long for her to respond.

223. Furthermore, according to the Mother’s explanation in Court, it is clear she was not prepared to accept whatever candidate proposed by the Father. Since she said she was busy, she was asked as to why she did not consider the candidate proposed by the Father suitable for the obvious reason the mediation could immediately commence for the benefit of KK. She said the following in Court,

“Well, to be honest, I did not know whether this mediator was good or not, or if he was suitable or not. But I just wanted my lawyer to find a mediator for me who is dependable and competent.”

224. It is apparent that she only preferred to proceed with anything in her own way. She simply does not trust the Father. Therefore she is quite prepared to accept a delay of the mediation and thus risks the interest of KK in exchange of a mediator of her choice. At the end the mediator nominated by her is not Japanese. The mediation finally did not work out.

225. Her uncompromising character was also manifested in her response to other requests of the Father. There was an occasion when the Father’s extended family happened in Hong Kong in November 2009. The Father requested extension of access time from 11:00 am to 7:00 pm so that AK could play with their cousins and aunt. He offered to pay for the extended hotel charges. The Mother initially replied that she had no knowledge of the Father’s email. This Court raised a query because there was an email of the Father sent out the day before at around noontime. The Mother had this to say in Court:

“Because I was not intend to stay away until 7 and I did not intend to extend the stay at the hotel room, so I didn’t read this too clearly and I …I wasn’t going to take it up anyway.”

226. Later she was challenged as not having been honest because some time earlier in her cross-examination, she had admitted that she did read the email and responded by an email but it was sent to the Father’s work email. She then had this to say in response:

“As I’ve said earlier, since right from the start I had no intention to agree to coming back later on that day, so since I had no intention to agree to the offer right from the beginning, I did not feel the need or I did not have the interest to look into fine details of the email. I just thought that I would…whatever he said I’m just not going to take it…”

227. It is also noted that the Father had complained that the Mother chose to isolate the children from the Father, the paternal grandparents and Rosa. Whenever all are present the Mother chose to take the children into the master bedroom and close the door confining them in their bedroom. He requested exclusive access time with the children to go out together with the paternal grandparents one evening a week and a further period either on Saturday afternoon or Sunday afternoon each week: see letters of the Father’s solicitors respectively dated 7^th April and 6^th May 2009. In reply, apart from saying that the grandparents were free to join her taking the children to the beach and repeating that the Father was seldom home, the request, in my view, had in fact been brushed aside. Is it not apparent from reality that the relationship between the Mother and the grandparents are so bad that the option of the grandparents joining unrealistic? It is not apparent enough that the home environment then is so strained that they cannot do any activity together with the children. If each party is to build up a relationship with their children, the only realistic option is to set a timetable for exclusive access for each of them. In the circumstances, why the Father’s proposal not responded to?

228. In fact her unwillingness to allow access was a subject matter when she was cross-examined by Miss Rattigan. Her response is “… as long as AK gets her homework done and as long as AK agrees to access”, she saw no problem in allowing access. Despite repeated challenge that it was inappropriate to involve AK in the decision regarding her own access, given AK’s age, she saw matter a different way. She considered it entirely all right “…to make her [AK] participate in making the decision”.  In my judgment, her involvement of AK, a girl aged 7 then and has turned 8 now, in deciding her own access put AK in a very difficult position. It is clear a manifestation of her intention to alienate. It is clear she does not want to compromise and seeks behind the child’s own decision.

229. It is not until almost end of June 2009 when the matter came before the Court that I ordered that each party do have exclusive access to the children. However, my order has not been observed. The Mother appears to insist doing things her own way even though it was in apparent breach of Court’s order or is unreasonable. It led to the conflict over KK’s haircut at a time when the Father was supposed to have exclusive access to the children. It also led to cancellation of some planned activities of the Father, e.g. visiting the ancestors’ grave in Novembers 2009 because the Mother returned home earlier than agreed. The Mother simply returned earlier and AK then went to her mother and did not want to go out with her Father. The Father, not wanting to cause any conflict, did not take AK out as originally planned. It also frustrated the Father’s original plan of taking AK to attend a school function at the India Recreation Club in November 2009 together with the Father’s extended family, who had arrived from the States for a brief visit. She was simply unwilling to compromise and insisted to do things her own way.

230. From the totality of evidence including that set out in the preceding paragraphs, I must say that the Mother is not that sort of person that is easy and ready to compromise or respond to any reasonable proposal. She would insist to do things her own way until a Court order is in place. In my view, comparatively speaking, the Father is more ready to make respond and compromise. 

The Balancing Exercise

231. In the English authority of In the Matter of C (a child) EWCA Civ 866, the English Court of Appeal was then dealing with an appeal against a lower court’s decision changing the residence order, after the said lower court had concluded that the mother had been so hostile and refused contact of the child by the father. The mother in that case had also lived an isolated life. It is an extreme case but it is fair to say that the lower court placed considerable emphasis on the emotional harms likely suffered by the child if the residence order was not altered and alienation continued, although that court had also taken into consideration other factors in the balancing exercise. The English Court of Appeal upheld the lower court’s decision and dismissed the appeal. So when the relationship of a parent with the child is so materially affected by the conduct of the other parent, the Court will have no hesitation to adopt a robust view, and order custody (in that particular case residence) in favour of the parent who is willing to facilitate access.

232. In the present case, one of the astonishing features is the extent of alienation reported by the clinical psychologist Dr. Levy. She had observed clear evidence of alienation of AK from her father campaigned by the Mother, which I totally agree and accept. Ms. Chow, the social worker, had similar observation. In fact after the junk trip on 20^th September 2008, the Father could still shower AK before she went to bed. During the subsequent quarrel that evening in AK’s presence, she did not yell to her father despite the Mother’s complaint to her. It can therefore be inferred that the Father could still enjoy a good relationship with AK then.

233. The change in AK was so huge within a year that she voluntarily told Dr. Levy something bad about the Father which were in fact the subject matters of the Mother’s complaints, rather than her own personal experience of actual abuse or neglect. On one occasion she even waved her fist against her father for no reason at all. The Mother gave tacit approval by not stopping but instead hugged her with a smile. AK repeated her mother’s complaints to third parties and described her father as “stinky” which was what her mother always called her father. In light of Dr. Levy’s observation, I believe AK has now become the soldier advocating the animosity of her mother who is directing her from behind.

234. Furthermore, the alienation is further aggravated by the Mother shutting the children out from the Father by locking them in their bedroom or involving them in many activities, e.g. going to the beach to the exclusion of the Father and/or the paternal grandparents leaving no space in life of the children for exclusive access by the Father. I do not think it right. I consider children have a right to know their parents and are entitled to maintain a close, intimate and an ongoing relationship with them. The emotional well being of a normal growing child will be adversely affected if he grows up with hatred against one parent with whom he is supposed to have a loving relationship. A child will suffer emotional harm if he grows up without love and support from a parent. I consider both parents are under a duty to foster and encourage the child to love, to develop a relationship and to respect the other parent. The failure from that, in my view, is as harmful to the child as is the failure to provide sufficient food, clothing or shelter. They should help the children dwell on the other parent’s good points rather than the faults. I think when one parent begins to cut out, be it intentionally or not, the other parent who is fully involved in a child, the best interest of the child is materially affected.

235. I accepted that in the present case AK has already suffered emotional harm. I accepted the evidence from Dr. Levy that AK has become alienated from her father, the paternal grandparents as well as the carer Rosa. I accept her view that if this cannot be reversed AK’s bond with her father will break, and AK’s emotional well-being severely affected. I accept that if AK continues to be with the Mother, the alienation will go on. On the other hand, if AK’s custody is granted to the Father, the bond will heal itself because this is not what AK feels deep inside of her.  I accept Dr. Levy’s opinion that granting custody of AK to the Father is a way to repair the bond, though it is not the only way.

236. As for KK, from the evidence set out above, it is apparent the Mother has kept KK’s information away from the Father. Given the Father has all along the prime mover of KK’s recovery plan, the primary contact between the family and the US professionals, the one who has strived to acquire a very good knowledge of treatment plan, and has been very involved in KK’s life, cutting him off or delaying conveying KK’s information to him is not in the best interest of KK.

237. Judging from the totality of evidence, including the correspondence, affirmation and oral testimony of the parties in Court, I believe that the Father is a person who is more willing to make compromise and facilitate a relationship between the children and the Mother. Even after the so-called last straw incident on 20^th September 2008, the Father asked for joint instead of immediately driving for sole custody. It can be inferred he was then still willing to cooperate with the Mother in taking care of the children. He concerns the well being of his child. He is sensitive and observant. It is he who is able to pick up the little signs of behavioural problem that AK has exhibited despite the Mother’s outright denial of such problem. Upon the indication of Dr. O’Hara that they should seek mediation in respect of KK’s treatment, he immediately responded. He appears to be more sensible in regards to child-parents relationship. He is not perfect and is very often quite emotional as well, just like what he has done when doing KK’s haircut and might have gone mad the evening when the Mother refused to sign the tax return. However, I believe he is more willing to compromise on reflection for the good of the children. He gave up plan of taking AK to visit ancestors’ graves and to the Indian Recreation Club in order to avoid conflict. I believe that the Father will be in a better position to promote a proper relationship between the Mother and the children than vice versa, and will facilitate access if custody of the children is granted to him.

238. I pause to ask myself whether granting custody to the Father is the only alternative for the alienation problem. However, the Mother has also a drinking problem which I think will put her children at risk if she were to have custody of the children. I accept as fact the Mother has drunk too much to an extent that it affected her cognitive abilities and daily functioning. The problems of her being erratic, abusive, having sleep problem, absent-mindedness, abrupt sudden mood change, etc associated with her drinking will be aggravated by the fatigue and distress she experienced in taking care of the two children, and further aggravated by her taking of sleeping pills (which I also accept as fact) without medical advice. Her judgment and physical ability will be seriously impaired and she may not be in a position to grab the situation if she is drunk. The food over-burning incident is very telling. The children will be in danger. The facts that she was telling lies to the Court and to Dr. Chan suggest that the prospect of her drinking problem improved being slim, for she simply lacks insight of her problem. Granting custody of the children to the Mother is inconsistent with the welfare of the children.

239. I have also not forgotten the Father is working long hours while the Mother is a full-time housewife. The Father goes out between 6:00 to 6:30 am during weekdays before the children wake up and sometimes returns after 8:00 pm when the children have already gone to bed. If custody is granted to him, necessarily the daily care and control will very often be exercised through third parties, and in the present case, the domestic helper Rosa or her successor, and the paternal grandparents. It is in fact a very difficult decision. So the Mother, who is an equally loving parent as the Father, has the obvious advantage over the Father in this respect. As I have expressed in my decision last August, Rosa and the grandparents will never be able to provide AK and KK with what they can only find in his/her natural parent, unless there is strong and good evidence to displace her.

240. I acknowledge that this is the most difficult part in the present case. However, for what I have elaborated above, I still think that the Mother should be displaced on a balance. I believe that if custody of the children were given to the Mother, the children could not be able to enjoy a relationship with the Father and the paternal grandparents, whilst they can if their custody goes the other way round. The benefits to be gained by ordering custody to the Father outweigh the disadvantages. The Father’s proposal of renting a flat in the central so that he can return home earlier everyday in order to have dinner with the children (who usually have dinner at around 6:00 pm everyday) before going out again for work or entertaining clients are workable, and to a certain extent addresses the problem. He works in Central, and his family moving to the Central will enable him to be at home, if required, to see the children during lunch time as well. However, adhering to his own plan definitely requires commitment and self-discipline on his part. I would therefore require certain undertakings from him in this respect in order that these will not be empty promise.

241. Further, from the available evidence I accept Rosa possesses the necessary child caring skills and is as competent (in terms of childcare skills) as the Mother, if not better, to take care of KK and AK. As I have said in my last decision, Rosa helped take care of the two children single-handedly when the Mother returned to Japan early last year. She is able to perform therapies and training more skillful than the Mother. She used to enjoy very good relationship with AK. From Rosa’s evidence, I accept she loves and is willing to help take care of the two children, despite the fact that taking care of KK is very often frustrating and challenging. Although the Mother has challenged Rosa’s integrity, I choose to believe that she is dedicated to the children and have developed a loving relationship with them otherwise she would have already left this difficult family. She has been headhunt by other employers but has agreed to stay on and work in a strained home environment. The allegations that she is involved in international fake goods trade and possession of pornographic pictures in her phones are exaggerations and unfounded. I believe if the alienation campaigned by the Mother can be stopped, AK will have no problem re-establishing a relationship with Rosa, who was once her best companion.

242. AK has not seen the maternal grandparents very often yet she said good things about and enjoyed good relationship with them. In fact, according to evidence if the Mother is away, AK shows an entirely different attitude and is friendly towards the paternal grandparents. So I believe, given time and provided the alienation can be stopped, AK can be able develop a good relationship with her paternal grandparents, who I believe have the dedication and ability to assist the Father to take care of the children.

243. Furthermore, raising an autistic child will be an overwhelming challenge for any parent, both physically and emotionally. Since KK is severe autistic, and the parties have already agreed to subject him to a very strict recovery treatment plan, it will be hard, emotionally stressful and difficult, if not impossible in the circumstances, to raise him single-handedly without assistance of helpers. Talking care of AK, who has exhibited symptoms consistent with ADHD will add further burden to the custodian parent. For either of the parties, assistance of other carers is certainly a must. So even if custody of the children were granted to the Mother, she definitely needs assistance of helpers. However she has got a history of not getting along well with domestic helpers, e.g. Gretchen, Rosa, Del and Citra (the helper engaged by her). She definitely will run into serious difficulty in taking care of the children.

244. Furthermore, the maternal grandparents, though having expressed a wish to assist, have never been here to assist. On the other hand, Rosa has expressed a view to assist. Even though Rosa may leave the family the Father does not appear to have any problem getting along with domestic helper. The paternal grandparents are ready, able and willing to assist. I share with Ms. Chow’s observation that the caring and training of KK are more promising under the monitoring of the Father. In my judgment, it is in both KK and AK’s interest that their custody is to go to the Father.

245. There have also been complaints that the Father is very loose in enforcing discipline of AK and as a result she goes to bed late. There is also evidence suggesting the Father not exercising interim access and went to his fund-seeking activities. I accept he is not as strict as the Mother in child discipline and have no intention to play down the good habit and child discipline such as going to bed early, particularly for child of young age. However, this is a relatively minor matter compared with other matters in the weighing pan. On the other hand, it will not be a bad thing for parents with difficult children to take break after a stressful and exhaustive week, though a fine balance needs be struck. The Father should also reflect and try his best endeavour to keep the good habits of the children. Perhaps the Mother should be given generous access so that she can continue to give AK and KK positive influence.

246. I also realize that removing AK and KK, who now enjoy an intimate relationship and sleep with the Mother, will have a serious impact on the children, particularly on AK. As fairly pointed out by Dr. Levy, both AK and the Mother may have a difficult time. However, I accept Dr. Levy’s view that in fact AK is only verbalizing the Father and it is not what she actually feels deep inside of her about her father. Since at the same time she will be developing a happy relationship with her father, I believe the pain and distress she is going to experience, though inevitable, will be short term, and will be out-weighed by the long term benefit to her emotional well-being. Furthermore, it is not a case where the Father is a stranger to the children. He has all along been involved in the children’s daily care – he bathed AK after the junk trip. Currently, by the latest court order, he also has exclusive staying access to the children for two nights every week. In my judgment, the impact (if any) on the children, especially AK will be short term. For the long-term benefit of the children, it is worth removing children to the Father’s custody.

247. I have also reminded myself not to elevate too much the alienation and drinking problems of the Mother above other competing factors in coming into my conclusion. I have in fact in mind the checklist as proposed in section 9.29 of the Report on Child Custody And Access published by the Law Reform Commission of Hong Kong in March 2005. For easy reference they are reproduced below:

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

(b)his physical, emotional and educational needs;

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

(d)his age, maturity, sex, social and cultural background and any characteristics of the child which the court considers relevant;

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

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

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

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

(i)    the range of powers available to the court under this Ordinance in the proceedings in question.”

248. Regarding the ascertainable wish of the children, I think AK, who has just turned 8, is too young to express a wish that is practicable to be given weight. For KK, he is unable to express a wish for the obvious reason he is suffering from a disability.

249. As regards the physical, emotional and educational needs of the children, the first two aspects of which have been dealt with to some length above. For educational need, the Mother obviously stands in a better position to help AK in her schooling and Japanese as she is native Japanese. Further, AK studies in a school with Japanese as the main medium of instruction. However, I think given generous access, the Mother is able to assist in keeping up with AK’s Japanese. If there are circulars from school which are in Japanese, the Mother can assist in translating so that the Father is able to keep himself abreast of what is going on at school. Alternatively, the Father’s proposal of engaging a translator/tutor on Japanese is also feasible. This option is obviously not the ideal one but is apparently the best that can be devised in the circumstances to deal with this aspect of the problem, if the parties cannot come to a mutually acceptable agreement in this respect. I also notice that AK has been assessed by Dr. Levy to have a good command of English, even better than children of her age in Canada and the States. I therefore do not think there is any difficulty for the Father to communicate effectively with AK to understand her needs, be it relates to her schooling or otherwise.

250. Further I notice that the Father has been to AK’s school and the English teacher Davis is a native English speaker and can speak fluent Japanese. He has been the interpreter between AK’s class teacher and the Father. Accordingly I do not foresee that there is much problem between the Father and AK’s school.

251. As for the rest of the checklist, I consider they have basically been dealt with. One further consideration is that the children are born to a family of American Chinese father and Japanese mother. It will be in their best interest if they could be brought up benefiting from the rich culture of the three countries. As I consider the Mother is unlikely to promote a good relationship between the children and her father, granting custody of the children to her will end up children being brought up mainly Japanese. On the other hand it is my judgment the Father will promote a good relationship of the children with their mother. Therefore, granting their custody to the Father will result in the children having a good opportunity to grow up benefiting from the rich cultures of the three countries, and is therefore consistent with the best interest of the children.  

Conclusion and Orders  

252. Given the total lack of communication between the parties and the undesirability of separating KK from AK, I consider that joint custody and split order inappropriate. By reasons of what I have stated in the preceding paragraphs, I am driven to the conclusion that an order of sole custody, care and control in favour of the Father best suits the interest of KK and AK, and I so make the order now.

253. I grant generous access to the Mother, including the following defined access:

i)   visiting access every Monday and Wednesday from 4:00 pm to 7:00 pm during school days;

ii) staying access on alternate Saturday and Sunday basis during school days, as follows:

a) Friday 4:00 pm to Saturday 7:00 pm (“Saturday access);

b)    Saturday 4:00 pm to Sunday 7:00 pm (“Sunday access”);

iii)   the aforesaid visiting access can be carried out at the home of the Father and the Father should, as far as possible, provide reasonable support to the Mother, including but not limited to instruct domestic helper(s) to assist while the same is to carry out at his home;

iv)   the first visiting access is to take place on Wednesday, 9^th June 2010;

v) the first staying access is to take place on Saturday, 12^th June 2010 (“Sunday access”);

vi)   the parties do sort out the staying access of the children during their summer vacation, Christmas holidays, Chinese New Year holidays and Easter holidays between themselves on the basis that KK’s treatment will not be unduly affected, failing agreement, the same be fixed by the Court; and

vii) the usual prohibition against leaving the jurisdiction unless with leave of the Court applies.

254. The custody order in favour of the Father is subject to his written undertaking to the Mother and to the Court, to be filed before 5:00 pm Friday, 11^th June 2010, that he will:

i)   move his home to Central within 2 months from today; and

ii) try his best endeavour to be at home by 6:00 pm for at least 3 days each week between Monday to Friday after his family has moved to Central. 

255. Since this a custody trial and I see no reason why the usual costs order not applicable. I make an order nisi that there be no order as to costs, such order nisi will be made absolute if no application is made to vary the same within 14 days.

256. I hope that this order for custody in favour of the Father with generous access to the Mother will not be seen by the Mother as a defeat and by the Father as victory. I very much hope that in future, the parties will concentrate their effort and devote their energy for the best interest of the children, who, as I have said, requires their extra effort and attention.

257. Finally, I would like to express my gratitude to both counsel for their able submissions, particularly their thorough written submissions, and the assistance that they have rendered to this Court.

Please refer to HCMP1410/2010 for the relevant appeal(s) to the Court of Appeal.

Please refer to HCMP1410/2010 for the relevant appeal(s) to the Court of Appeal.

Please refer to HCMP1410/2010 for the relevant appeal(s) to the Court of Appeal.

Please refer to HCMP1410/2010 for the relevant appeal(s) to the Court of Appeal.