Lnl v. Hpya

FCMC 15524 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 15524 OF 2014

____________________________

1.The only issue that requires my determination in this trial is whether CH, a boy born in 2000 and now aged 16, is the child of the family. The determination would affect the issue of whether child maintenance should be payable by the petitioner (“husband”) to the respondent (“wife”) in the ancillary relief matters.

Background

2.CH is the natural son of the wife, born out of wedlock with a man, Mr C.  Her relationship with Mr C ended in/about 2003.

3.The parties met in 2006 in a night club and developed into an intimate relationship very quickly.  From the 2^nd day when they met, CH was introduced by the wife to the husband. Soon, the wife, sometimes with CH, would sleep over at the husband’s place during weekends or holidays until April 2013 when the husband moved to the wife’s public housing unit to cohabit with the wife and CH.  

4.The couple were finally married on 24 July 2013, but the husband moved out in/about April 2014. By then, their marriage lasted for about 9 months (or 1 year if the period of cohabitation is to be taken into account).  It was said that the wife found out that the husband had been keeping contact with his ex-girl friend, leading to a quarrel between them, after which he never returns home.

5.The husband filed his divorce petition on 21 November 2014 on the ground of the wife’s unreasonable behaviour. The particulars therein were toned down and amended on 8 April 2015. In the amended petition, it is pleaded that there is no child of the family now living. The wife does not agree and maintains that CH, though not related to the husband by blood, has been treated by them as the child of the family.

6.As a result, I directed that a fact-finding hearing should be held to determine if CH was treated as the child of the family at all material times.

Applicable legal principles

7.There is no dispute as to the legal principles applicable to this trial, which are set out in the below.

8.Under section 2 of the Matrimonial Proceedings and Property Ordinance, “child of the family” is defined as follows:

“(a)    a child of both those parties;

(b)    any other child who has been treated by both parties as a child of their family.”

9.It is the 2^nd limb of the definition of the child of the family that is relevant to the present trial.

10.In order to establish that a child is a child of the family, 2 basic elements must be shown: it must be shown that there is “a family” and “treatment” as a child of the family. In Rayden and Jackson on Divorce and Family Matters （18^th edition， 2005） Vol. 1 at §10.130, it states that,

“ Now, to establish that such a child is a child of the family it is sufficient to show that the child was treated by both parties as a child of the family. There must be ‘a family’, and there must be ‘treatment’ as a child of the family. The family as a social unit comes to an end when the parties regard their marriage as at an end. In deciding whether a child has been treated as a child of the family the court should look at the question broadly, avoiding the finer points of analysis. The knowledge, or lack of knowledge, possessed by one or both parties of the facts relating to the child (for example, as to the identity of his parents) is no longer material in determining whether he is a child of the family. Thus a child who is the child of a wife and a man other than the husband would be a child of the family if he had been treated as such by both husband and wife…. ”

11.What should the term of being “treated as child of the family” mean? The English Court of Appeal said in the case of re: M (a minor) (1980) 10 Fam Law 184 that an ordinary meaning should be adopted. Lord Justice Ormrod explained at §4 of the judgment that,

“ We have to interpret this definition in accordance with the normal rules.  The words used are all very ordinary words, each of which carries to an ordinary person a fairly clear meaning.  I think that any ordinary person, reading the definition of a “child of the family” in its present form, would understand what Parliament was getting at.  They would understand what is meant by “a child treated by both parties as a child of their family”.  I think most ordinary people would look at the state of the facts and say “Yet” or No” to that.  It becomes very much more complex when we, as lawyers, proceed to analyse the definition word by word and ask “What does ‘treated’ mean?  What does ‘family’ mean?”  I think we have to read that definition as a whole and so the question in this case for the learned judge was, “Has this child been treated by both parties as a child of their family?”  (emphasis added)

12.In re: M (supra), the English Court of Appeal reversed the trial judge ruling that a boy born after the separation of the parties in April 1971 was a child of the family on the main ground that one of the basic element of “a family” was not established. The facts showed that after the child was born, the wife took him for the husband to look at in the presence of her mother, who congratulated the husband on the child. The husband did not repudiate this immediately to the wife’s mother, or indeed at all. Thereafter, though living separately, he continued to visit the wife 2-3 times a year. He would buy presents to the child on his birthday or Christmas, and signed cards labelling himself as “Dad”. He said that he did so because he was anxious not to do anything which would disclose to the wife’s parents the truth (that the boy had nothing to do with him).  The English Court of Appeal found that the parties had regarded their marriage as an end from April 1971 onwards and since then the family, as a social unit and using the language in ordinary sense, had ceased to exit. 

13.The test to be applied is an objective one to be decided by looking at all the circumstances of the case. In  D v D (Child of the Family) (1981) 2 FLR, Lord Justice Ormrod had this to say at p96:

“The test as to whether a child is to be regarded as a child of the family or not was changed by the Matrimonial Causes Act 1970 and the relevant section is now s.52(1) of the Matrimonial Causes Act 1973.  The definition at present is as Orr LJ has stated.  The question is: “has the child been treated by both the parties to the marriage as a child of their family?”  That has replaced the former test which was one based on whether or not the child had been accepted as a child of the family.  So the later Act has in fact substituted a much more objective test than the earlier one.  It must be a broad question of fact to be decided by looking at all the circumstances of the case to say whether the facts, as disclosed or as found, amount to a case where the child has been treated by both parties to the marriage as a child of the family.  Therefore it is an objective test to be applied to the facts as found and a reasonable conclusion reached from those facts.  It is, as counsel said in the course of his submissions, to a considerable extent a matter of first impression.”  (emphasis added)

14.In the same case, Lord Justice Templeman elaborated at p98 the factors that the court should bear in mind and this was not an exhaustive list,

“ Every case must stand on its own facts. It is impossible and undesirable to define circumstances in which a step-daughter may be held to have been treated by a step-father as a child of his family. Amongst the factors the court bears in mind (and there may be many others) there must be the question of where the child lives, who pays for the child, who exercises discipline and whether the step-father had in fact exercised, or claimed any of the responsibilities of a parent.” (emphasis added)

15.In D v D (supra), the mother’s first marriage ended in 1965 and the child of that marriage was sent to live with her grandparents. The mother cohabited with another man and later remarried him in 1973. Since cohabitation, the child would visit the couple, when she felt like it, over weekends. The child had her own bedroom in the cohabited home of her mother. The step father had bought a pony for the child and claimed child relief in his tax return. The trial judge found that the child was a child of the family as she was integrated into the household of the mother and step father from time to time. The English Court of Appeal allowed the step father’s appeal, ruling that the child’s home was with her grandparents and that was a home in which a relationship of a parental character existed; the child was essentially a visitor to her mother’s home. 

Discussion

16.It needs to be pointed out at this stage that in view of the above legal authorities, Mr Chan, counsel for the wife, agrees with Mr Ko, solicitors acting for the husband, that this court should predominantly focus on the facts that took place after the marriage. Thus, the wife is no longer relying on the pre-marriage facts, such as birthday party held for CH and attended by the husband and his parents; the husband’s taking CH for various trips locally or across the border to China. She will, however, still rely on the alleged fact that the husband renovated and bought a bed for CH and the alleged promise made prior to the marriage by the husband to the wife for taking care of her and CH in the future.

17.The major and more relevant factual issues that arise can conveniently be considered under the following subheadings.

(i)  Introducing CH during wedding ceremony

18.The husband does not dispute that during the wedding ceremony/banquet, CH was one of his best men. He accepts that he took the initiation to introduce CH to his relatives and friends as “his son”, instead of “the son of his wife”.  He explains that he did so in order to save the embarrassment of the wife and to take into account of the feeling of CH.  

19.I cannot accept this explanation of the husband. According to his own evidence, all his family members and friends have already known that CH is not his son by blood but the wife’s son.  There cannot be any embarrassment in splitting out such facts to those who are already aware of such facts. When this logic is pointed out to the husband during the trial, he changes his evidence to say that he did not want to embarrass himself in front of his boss or the classmates of his technical courses. This sudden change of evidence without offering an explanation for such a change greatly discredits him.

20.Mr Ko, solicitors for the husband, submits that such introduction should be understood as what a reasonable step-father should do.  He relied on the re: M (supra) where the English court says this:

“People try to preserve reasonably good human relationship with one another without their guarding their legal position with meticulous care. It would be very unfortunate, I think, if any decision of this court were made which in any way embarrassed people in such situations from behaving, or prevented them from behaving, sensibly to one another. It is really a great mistake and clearly contrary to the whole meaning of the legislation to create such an artificial and legalistic situation in such sensitive area of family life.”

21.As said, the husband in re: M (supra) allowed it to be thought in the wife’s family that he was the natural father of the boy. He called himself “dad” in the cards that he sent to the boy.  Such facts should be distinguished from this case before me where it is the husband’s own confession that he took positive steps and on his own motion introduced CH to his relatives and friends as his own son.  

22.He has to accept that despite that there was other alternative ways to describe CH to the others in the wedding banquet, such as “the son of my wife”, he chose not to use any of these alternatives.

23.His attempted explanation that the feeling of CH needed to be taken into account does not come to his assistance. Quite on the contrary, it gives an overall impression that he was very conscious of the feeling and/or psychological health of CH at the material times. It begs an explanation why he was so mindful of this had he not regarded CH as his own child.  

(ii)    Changing CH’s surname/name

24.It is a common ground that even before the marriage, the husband had suggested that CH’s surname/name should be changed by adopting his own surname. Also indisputable is that that after the marriage, he suggested to the wife that the surname/name of CH should be changed like this: [1]

(1)   CH should adopt the husband’s surname;

(2)   the middle Chinese character should adopt the designated Chinese character assigned according to the genealogy of his family (族譜);

(3)   the last chinese character was hand-picked by the husband according to his liking.

25.In an attempt to explain why he made this suggestion, the husband says in his affirmation that in fact he did not want to get married and that he had rejected the wife’s request to get married. He had told her that they should get married after 2 years when his financial condition improved. However, the wife still pressed hard for a marriage. Therefore, he set out 3 difficult conditions for her to satisfy in the hope that she would be frightened away and would not press him for a marriage any more.  One of the said conditions were to “change the name of [CH] and to adopt [his] surname before the marriage” (「在結婚前更改[CH]的姓名， 跟隨本人的姓氏」).  He further says in his affirmation that he wanted to avoid questions from friends and relatives on the difference in surnames between him and CH. He also wished to save the embarrassment of being addressed as “Mr C” (current surname of CH) by the teachers and classmates of CH when attending school functions.

26.One would quickly see the fallacy of the husband’s evidence, because when he married the wife, the said condition was not yet fulfilled, ie the name/surname of CH had not been changed.  I thus have grave doubt as to this part of his evidence.

27.Further, as his family members and friends already knew that CH was not blood-related to him, I have reservation that they would ask questions on the different surnames between him and CH.  I shall repeat my observation in para 19 of this judgment and thus reject his oral evidence.

28.In my view, the husband’s worries about the teachers and classmates of CH calling him “Mr C” serves more to damage, rather than to assist, his own case. Such an answer suggests that the husband intended and/or was prepared to participate into the school activities of CH, to the extent of meeting his teachers and classmates at the material times. In my judgment, these are usually taken up by somebody who assumes parental responsibility.

29.His case is further sabotaged by his own oral evidence during cross examination in day 2 of the trial. He confesses that even if he did not marry with the wife at once, but 2 years later, he would still request CH’s surname/name be changed to his surname or his hand-pick name because he wished CH to be “a member of his family”. In fact, he has given similar reply at least 3 times during cross examination. He adds that if CH’s surname/name was changed, he would feel better ( 「啹啲」) to support CH financially by his hard-earned resources. 

30.Mr Ko for the husband tries to salvage his case in re-examination. He asks the husband to explain the difference between “child of the family” and “family member”. The husband replied that a “child of the family” means a child “who adopts his surname or is related by blood” (「跟我姓或有血緣」). Mr Ko also asks the husband to clarify why he would feel better if CH’s surname/name was changed. The husband replies that he provided financial support to CH and that even if they were not blood-related, he should at least adopt his surname in order to recognise the husband’s ancestor and/or family heritage (「俾錢養仔，就算無血緣， 起碼跟我姓， 認祖歸宗至得」).

31.The totality of the aforesaid evidence, in my judgment, is very strong indicia that the husband was in fact treating CH as the child of the family.

(iii)    CH’s student hand book

32.The husband originally denies in his affirmation that he initialled to sign in the student hand book of CH. He clarifies this in his oral evidence that he had signed in the handbook only once. On that occasion, the wife returned late from work and was so drunk that she was unable to sign in the handbook of CH. As a result, he signed for her.

33.The wife refutes such evidence. She tells that at the beginning of the school term of September 2013, she was required to fill in the parents’ particulars in the handbook of CH. She did not know how to describe the husband’s occupation.  He provided an answer to her.  He also signed his specimen signature in the handbook under the column “father”.

34.The above evidence of the wife was not challenged by the husband in cross examination, nor did the husband attempt to explain why he did that in the handbook of CH. It cannot be disputed that by apprehending his signature in the handbook of CH, the husband would be accepted as one of the parents/guardians of CH who could sign in the handbook in the future.  The logical conclusion can only be this: the husband actually saw himself a parent of CH and that he treated CH as his own child.

(iv)    FCMC 9355 of 2014

35.There is a previous divorce case between the parties, namely FCMC 9355 of 2014. In this previous case, the wife was the petitioner. The petition was later withdrawn because at the time when the petition was filed, the parties had not been married for 1 year (See: section 12 Matrimonial Causes Ordinance).

36.In the petition filed on 16 July 2014 under FCMC 9355 of 2014, the wife said that CH was the child of the family. She prayed for his custody and maintenance from the husband. Contrary to his stance in this trial, the husband did not deny that CH was the child of the family in all the documents filed by him with this court under FCMC 9355 of 2014.  He even confirmed in his own Form E filed on 16 October 2014 that CH was the child of the family and went on to provide details on school and living standard of CH.

37.When asked to explain this obvious discrepancy, the husband said that he was a layman so that he was unable to appreciate the actual meaning of a child of the family when preparing his documents under FCMC 9355 of 2014, in particularly Form E. He merely thought that if CH was a member of the family, namely the son of the wife, then he should be taken as the child of the family.

38.The above explanation must be considered in the proper context of what actually happened under FCMC 9355 of 2014.  First of all, it pertinent to point out that the husband was represented at allmaterial times by solicitors on the instruction of the Director of Legal Aid, though the instruction was limited to ancillary relief matters. He was represented in all hearings under FCMC 9355 of 2014. Then in the call-over hearing of 27 September 2014, the husband himself told this court that he was not going to contest custody. The court recording shows that he said that CH was not his son by blood. This court then enquired if he treated CH as the child of the family. His reply was “can” (「可以」).  At this point of time, his solicitors interposed and pointed out that the husband’s reply was given without prior legal advice. As such, I made no further enquiry and gave consequential directions for filing of Form E.

39.Subsequent to this hearing, the husband filed his Form E on 16 October 2014 by his solicitors. And despite the conversation and/or submission which took place in the hearing of 27 September 2014 between the husband/his solicitors and this court, the husband yet confirms in his Form E that CH was the child of the family.

40.Given the above chronology and circumstances, I am not hesitant to say that I do not believe in the explanation of the husband. It is obvious that he was under legal advice when he filled in the Form E under FCMC 9355 of 2014. He is not allowed to now go back on his own words, as Form E was made under oath/affirmation.

(v)    Living and financial arrangement

41.Despite his poor financial situation, the husband paid the wife a sum of $7,000 per month as household expenses, which covered rent, utilities etc enjoyed also by CH. On top of that, the husband paid CH pocket money since he started cohabitation with the wife in April 2013.  The amount of pocket money is in dispute. The wife alleged that it was $1,700 per month, inclusive also of lunches. The husband said it was $300 per month only.

42.In my view, the amount of pocket money given by the husband to CH is irrelevant. What is more relevant is the confession that he paid regular pocket money to CH since April 2013 and regular household expenses of $7,000 per month during the marriage to support the wife and CH. This is a good indicator that he has taken up parental responsibility (See: D v D (supra)).

43.In the trial, Mr Chan for the wife puts questions to the husband on the renovation of the matrimonial home. Counsel suggests that the husband preformed the decoration work and bought a bed for CH. I would simply say that I agree with Mr Ko for the husband that these facts are rather neutral in the circumstances of this case. I will not place any weight on these.

(v)    Other consideration

44.During cross examination of the wife, Mr Ko attempts to establish that CH has maintained a close relationship with his natural father and/or paternal family (mainly his maternal grandmother and uncle). This is denied by the wife, who categorically says that CH has not seen his natural father since he was in primary school. She was not in touch with his paternal family since she was married to the husband. They have picked up their contact again only when the paternal grandmother learnt about her suicidal attempt allegedly due to the husband’s breaking up with her. Since then, on the paternal grandmother’s request, she would allow CH to have meals with them during some of the important Chinese festivals, but the natural father is not present.

45.I fail to see how the above arrangement can have any relevancy on determining if CH was treated by the husband and wife as the child of the family. The overall evidence here, even putting the husband’s case to its highest,  comes no way close to the facts of D v D (supra).

46.Mr Ko also refers to a man called Ah Tung, whom the wife confesses was her ex-boy friend before she had an intimate and steady relationship with the husband.  After she broke up with Ah Tung, they still maintained a good relationship and he came from to time to assist her to take care of CH when she worked at night at bars/nightclubs.

47.Again, I am not able to appreciate how the existence of Ah Tung and/or his previous relationship with the wife has any meaning bearing on the issue in question. Their past relationship, even if considered, does not change my conclusion on the issue.

48.In the trial, Mr Ko puts to the wife that the husband did not discuss about the future plan of CH with her. The wife says that before their marriage, they had casually mentioned that CH might follow the husband’s footprint to do construction/decoration work should he not able to go higher in his education. She agrees that there was no more discussion on the future plan of CH after the marriage. I think the wife has been true and frank in her answer; she has not taken the opportunity to exaggerate her evidence.  In my judgment, one must not forget the background of the parties. Without disrespect to them, it does not occur to me that they are educated, nor do they seem to emphasize too much on academic performance. It does not surprise me that they have not discussed about the future and education plan of CH.     

49.The age of CH when the parties got married is barely of any relevancy.

Conclusion

50.I bear in mind that this court should not adopt an artificial and legalistic approach to the issue. I also take the view all the factors or indicia as argued by the parties in this trial should be considered in totality in order to decide if CH was the child of the family.  Upon all due consideration, I reach the conclusion that CH was treated by this husband and this wife as the child of the family. He is thus a child of the family.

51.Accordingly, the petition of the husband should be amended to include and properly describe CH in his petition. I expect a consent summons would be prepared and signed by both parties within the next 28 days.

52.Both parties are legally aided. Counsel for the wife has not expressly sought a costs order in her favour. Upon due consideration, I shall exercise my discretion that no order as to costs be made save that both parties’ own costs shall be taxed in accordance with Legal Aid Regulations. This is a costs order nisi, which shall be made absolute within 14 days from the date of this decision. 

53.For avoidance of doubt, I am not prepared to certify the attendance of counsel in this trial. I say so without disrespect to Mr Chan. But it is my view that the issues and facts of this trial are not complex at all and do not warrant the engagement of counsel. I do show my reservation and concern why public money should have been spent in this way. For that reason, I shall direct that a copy of this decision be sent to the Director of Legal Aid for her reference.   

54.The first appointment hearing shall be restored and fixed for 11 August 2016 at 11.30 am before me (30 min reserved). Both parties shall comply with PD 15.11 in filing and service of the 1^st appointment bundle.

55.This order shall be drawn up by the respondent.

Mr Edward Ko of Messrs Edward Ko & Co (on the instruction of the Director of Legal Aid) for the petitioner (husband)

Mr Sunny Chan instructed by Messrs Ho & Associates (on the instruction of the Director of Legal Aid) for the respondent (wife)