Ho Lee Kam Wan v. Ho Man

CACV000078/1988

BETWEEN

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Coram: Hon. Cons, Ag. C.J., Hunter & Penlington, JJ.A.

Date of hearing: 2 August 1988

Date of delivery of judgment: 2 August 1988

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J U D G M E N T

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Cons, Ag. C.J. :

1. This is an appeal, pursuant to leave granted by this Court, against an order for custody made by Judge Blackwell on the 3rd May this year. The hearing itself was at the end of February.

2. The parties were married in 1974. Of that marriage there are 2 daughters, the elder now almost 13 years of age and the younger a little over 6.

3. The marriage did not last, and after some initial breaks the parties finally separated in 1984. The father and the elder daughter moved to live with the grandfather who had in fact in the earlier stages of the marriage been living with the family itself. In addition there was the mother's maternal aunt who helped look after the elder daughter. The grandfather and the maternal aunt are now quite elderly.

4. The divorce was granted in 1985. There was no dispute as to the custody of the elder daughter, the mother being content to leave her in the custody of the father. But there was a dispute as to the younger daughter. When the husband moved out the younger daughter remained with her mother. To some extent that has been the position ever since, although on several occasions her mother, for one reason or another, left the younger daughter with the father. The last occasion was some 2 years ago, the younger daughter remaining with her father up to the time of the hearing.

5. The judge granted custody to the mother and later on made an order stipulating periods of access. In coming to his conclusion he had the benfit of 6 reports from 4 Social Welfare Workers. The first is dated as early as November 1985. The last 3 are more recent and come from the same Social Worker, a Mr. Wong Hok Sun. The first of those is undated but was apparently made sometime about September 1986. The second was in November last year, at least it is so annotated in manuscript, and there was originally annexed to it a report upon the mother from a psychologist. The third report was given on the 13th April this year, after the hearing before Judge Blackwell. The two witnesses before the judge were the mother and Mr. Wong, whose recommendation he accepted. There were no other witnesses, but many affidavits had been filed.

6. Miss van der Eb, who appears for the father, has put forward 11 grounds of appeal. I think they may be briefly, and I hope fairly, summarised in four groups. The first, which contains the most complaints, deals with the mother's conduct during the course of the marriage and her character. She is said to be highly emotional and does not get on easily with others. She quarrelled sometimes violently, with the father and with domestic servants, on one occasion being charged and convicted for assault. Reference is also made to what is said to be her overdisciplining of the elder daughter. This was one of the causes of the father and the elder daughter leaving, home.

7. The second group relates to the undesirability of taking the younger daughter away from her sister and the large family circle in which she had been living up to the hearing, and putting her, in effect, into a single parent family.

8. The third comprises one single ground of appeal which mentions the financial problems of the father. When the younger daughter was given to him in 1986, he took on a larger, and more expensive flat. At the same time we are reminded that the mother now has only a part-time job and even with the maintenance ordered will find it difficult to make ends meet. Thus the judge's order puts both in financial difficulties.

9. Those three groups are concerned with the merits of the appeal. In that respect, Miss van der Eb acknowledges that in accordance with the principles laid down in G. v G.⁽¹⁾ she has to satisfy us that the judge was plainly wrong. To that end she has taken us very carefully through all the matters which can be said to be in favour of leaving the younger daughter with the father. Miss van der Eb has put all her points forcifully, but at the same time if I may say so, has put them very fairly. In sum they do not allege anything against the mother at the moment, but in view of all that has gone before they are said to raise a question mark as to the future, a sense of unease that the daughter should be left with her. Undoubtedly there is some force in that argument. Mr. Wong, the Welfare Officer, only recommended that it should be for a trial period of six months. The judge, although accepting his recommendations generally, did not accept that part of it, taking the view "that children require a very definite degree of stability". He was aware of the dangers that the mother's past conduct might pose as to the future. He was aware too, as he noted in the reasons he later gave for his decision, of those other factors to which we have been referred. On the other hand Miss Mok, for the mother, has drawn our attention to what she suggests are shortcomings in the father's own character and in the home that he has to offer the child now. It cannot have been an easy decision for the judge, and perhaps, as is often the case, neither solution could be perfect. In any event, for my part, I am not persuaded looking at all the factors, that the judge was plainly wrong. As far as merits are concerned, I would not interfere.

10. That leaves two other matters which are said to have been irregularities in the proceedings below. The first relates to the psychologist's report which was said in the second report of Mr. Wong to be annexed thereto, although in fact it was not when the report was supplied to the parties. Thus the existence of the report was known to both mother and father, although the contents were not disclosed to them until during the proceedings this morning. There is some dispute as to how that rather unusual position came about and I do not propose to Go into the details, other than to say that I am satisfied it was not the fault of the judge. We too have seen the report. In my view it takes matters no further from the point of view of the husband and I have no doubt that had the solicitor then appearing for the mother perused the report before the hearing and cross examined the Social Worker or the psychologist upon it, it would have made no difference to the _.judge's decision.

11. The other irregularity suggested is the judge's having privately telephoned to Mr. Wong the Social Welfare Officer. This came about because the mother, in her evidence, spoke of the offer of a job with the bank working night shifts. The judge thought it Prudent to inquire whether, if she took up that offer, Mr. Wong, would amend his recommendation. The judge made known to the parties his intention of contacting the Welfare Officer. No objection was raised, perhaps not surprisingly. What is a little surprising is that, instead of writing a note to the Welfare officer, the judge chose to use the telephone. Having done so, he communicated the answer to the parties by way of the father's solicitor who happened to appear before him in another matter, asking her to inform the other side. As a result of action then taken by the mother's solicitor the Welfare Officer prepared a supplemental written report which was submitted to the parties and the judge before judgment was given. By that time the mother had decided not to take the night shift that was offered and the Welfare Officer remained of the same view that he had taken earlier.

12. It is contended that because of the telephone conversation between the judge and the Welfare Officer it is inevitable that we should order a hearing. We have been referred to the case of H. v. H.⁽²⁾ where a judge had apparently seen the Welfare Officer before the commencement of the hearing and had said nothing about it to either of the Parties. In giving their decision the Court of Appeal in England said: -

"    There was an infraction of the fundamental principle that justice had to be seen to be done. Any private conversation between a judge and a Person concerned with a case, such as a reporting officer, not disclosed to the Parties must involve infraction of that prinpinle whether it took pace before or after the witnesses were hear and whether or not it influenced the judge in his decision.

The principle stated in Fowler v. Fowler and Sine embodied the matter."

We have taken the opportunity to consult the report referred to⁽³⁾. I need only read the appropriate part of the headnote -

"Held That the ordinary Principles of judicial inquiry must be observed in the Divorce Decision in relation to custody matters; and, as that jurisdiction was entirely statutory and there was nothing in the statute or the rules made thereunder which expressly authorised the judge exercising the jurisdiction to depart from the ordinary principles of judicial inquiry , he has not entitled to receive confidential informtion not disclosed to the parties. By acting on material privately obtained and not made available to the parties the judge had violated the principle that justice must manifestly be seen to be done. Accordingly, the course he had taken was irregular as it was contrary to both practice and principle and his order must be set aside and the case remitted to another judge of the Divorce Division for rehearing."

It is clear, when looking, at both cases, that what principally concerned their Lordships was not that the judge had a private conversation, but that he failed to disclose it to the parties.

13. For my part, I would not encourage informal approaches by a judge to a Welfare Officer; even if there are savings apparently to be made as to time or expense. In the present instance the judge did disclose the fact to the parties, both before and afterwards, albeit he did not in the first instance specify the method he had in mind. Later he passed on to the parties what the officer had said. I have no reason to think that anything further was mentioned which was not disclosed. Subsequently the parties, and the judge, received the written supplemental report. In the circumstances I do not think that we are required to order a rehearing of the question of custody, with the undesirable consequences that course would inevitably entail.

For these reasons, I would dismiss the appeal.

Hunter, J. A.

14. I agree for the reasons given by my Lord on the merits. It seems to me a case where the Appellant is unable to persuade this Court that the decision of the trial judge was wholly wrong within the principles of G. v. G.⁽¹⁾. It is one of those difficult cases where more than one decision might have been reached by the court below, neither of which would have been appealable.

15. Upon the technical points which my Lord has said do not warrant interference, it seems to me that the vital point of distinction between this case and the two in England to which we have been referred is that what the judge here did, he did it with the consent of the parties upon the basis that he would tell them what the information was that he had received. We have no reason to think that he failed to tell them what the information was that he had received, and in fact that ultimately produced the supplemental report which both parties had and that is a matter upon which the judge relied.

16. In those circumstances, although regretting the informality, there is no failure in substance that I can see.

Penlington, J. A.:

17. For the reasons given, I agree with my Lords.

18. There is no reason to interfere with the decision on the ground of the two technical points which have been taken as to the procedure followed.

19. As to the merits of the case, I think by far the strongest argument which has been advanced for the Appellant is the fact that he is the only one of the two who can provide a home for both the little girls, and has obviously at some sacrifice, taken a larger flat so that he could do so. I have no doubt that the judge below must have had some difficulty in overcoming the argument that the status quo which was then before him should not be upset. However for the reasons he has given he has chosen to do so and considering all the matters, - and this obviously is a case of considerable difficulty; - on the basis of the Principles in G. v. G.⁽¹⁾ I also agree that there is no strong reason necessary for us to interfere with the decision which he has come to. I also would dismiss the appeal.

20. I would only add, apart from also commending the able and fair way this matter has been argued on both sides, that reports from the Social Welfare Department should always be dated. Often, as here, there are a series of such reports and the date onw hich they are made is a highly relevant factor.

(1) [1985] 1 W.L.R. 647

(2) The Times Law Report April 1 1982

(3) [1963] P. 311

Representation:

Miss Colette van der Eb (M/s Susan Liang & Co.) for Respondent/Appellant

Miss Alice Mok (M/s Helen A. Lo & Co.) for Petitioner/ Respondent