X v. Y

FCMC010242/2001

FCMC 10242 of 2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10242 OF 2001

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Coram: H.H. Judge Gill in Chambers

Date of Hearing: 18 - 19 July 2002

Date of Judgment: 1 August 2002

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J U D G M E N T

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1.This is an application for custody and ancillary relief.

2.I shall call the parties for convenience the husband and wife. They were married in April 1981. He was then 31 and is 52 now; she was 26 and is now 47. There are three children, all girls. A was born in May 1989, B in October 1990 and C in October 1991; thus respectively their ages are 13, 11 and 10. The parties separated in February 2000 in the sense that they no longer cohabited, whilst living under the same roof with the children, a situation which prevails to date. By petition dated October 1991 the wife petitioned for divorce on the grounds that the parties had been separate for more than a year with consent. Her prayer was for custody and child support. Unopposed, a decree nisi was granted in January 2002. But the husband seeks custody, challenges the wife's application for ancillary relief and has mounted his own claim. These are the matters before me for resolution.

3.First it is appropriate for me to deal with the dispute of custody.

4.The making of custody and related orders is in the exercise of the court's discretion and that is wide but not unfettered; the first and paramount consideration is the welfare of the children with their wishes to be taken into account having regard to their ages and understanding and to the circumstances if it is practicable to do so; see section 3(1) Guardianship of Minors Ordinance Cap 13.

5.In pursuit of their respective claims the parties have filed affidavits which have been expanded upon from the witness box. In addition a Social Welfare investigation was carried out and the assigned officer has filed a report. As well a psychologist was appointed to conduct an enquiry and I have her report; she also was called and asked questions on its contents.

6.Summarized, a brief history follows.

7.When the parties married in 1981 both were qualified teachers and were employed as such. That year the wife joined the civil service and since then and to date she has been employed as a government secondary school teacher. The husband has since graduation been employed by a catholic college as chemistry master; that remains his current occupation.

8.The children's respective arrivals in the years 1989, 1990 and 1991 represented brief interruptions in the wife's career, but she resumed work a short while after their births in each case. Childcare during the course of the day has ever since been provided by live-in domestic help; after work the parties came to share that responsibility.

9.During the marriage the parties lived in various homes beginning with one bought in joint names, before their marriage, in August 1980. They upgraded twice. The current matrimonial home, an apartment in Baguio Villa, was purchased and registered in the wife's sole name in 1993. Financial details will be dealt with when I come to the ancillary relief claims. The apartment has a conventional layout with maid's quarters, two bedrooms and a study. The parties shared the master bedroom and the girls the second one. The study contains desks and as the girls have got older has been utilized by them for homework and study.

10.Unhappy differences came to a head in February 2000 when the parties had a disagreement about a family dinner engagement. This provoked an angry outburst by the husband, in the presence of the wife and children. She left the master bedroom and marital bed and from then on has slept with the girls in their's. She has not returned; that signalled the end of the marriage. She issued a petition in divorce later that year on the grounds of the husband's unreasonable behaviour. It was later replaced by the petition of October 1991 which has given rise to the decree nisi of January of this year, and the resultant disputes of custody and ancillary relief.

11.The wife's affidavit in support of her claim was filed in February 2002. She says the relationship between herself and the children is warm and convivial. In their bedroom there are but three beds and four persons so they have to share, but there is a close relationship so that this somewhat cramped environment has not presented any undue difficulty. Besides, the constraints of space provide no alternative. She could not convert the study, for it is crowded with furniture and there is no room for a bed.

12.The girls attend catholic schools in Happy Valley and Causeway Bay. She drives them to school on her way to work. After school there is the school bus which passes their front door; alternatively if there is extra curricular activity she picks them up on her way home. She says that she has almost throughout their school lives attended the children as they have done their homework; she produced samples of their notebooks to show it is her signature in them. She describes herself as their main carer, loving them, looking after them, having fun with them, buying for them their clothes, providing for their other needs, discussing with them their issues, sharing their concerns. If given sole care she has domestic support and family back-up in the case of need. She is ready to guide the girls through puberty. She believes she is the more capable parent to be granted their custody; indeed the formality of that would merely be a continuation of what is already the case, save for the husband's occupation. She wants him to move out. His presence causes ongoing tensions and pressures and all parties have suffered, including the husband. Communication with him is extremely difficult.

13.I come to the husband's affidavit of March 2002. It is his view that the wife moved out of the marital bedroom and into that of the girls in order to improve her relationship with them and alienate them from him. From then on she put herself in sole charge of their timetables and that left him out in the cold, including during the holidays. The result is that they do not readily talk to him or permit him to demonstrate his own love and concern for them. In his words : "She has driven an emotional wedge between my daughters and me".

14.During the early part of the year 2001 he began to suffer anxiety attacks brought on by pressures at work and the marital disharmony. He sought psychiatric help and was diagnozed to be suffering from Anxiety Neurosis. He was prescribed anti-depressants and psychotherapy and given 6 months' sick leave. He was said to have fully recovered by the end of the year and was taken off medication. There has been no relapse. His psychiatrist reported :-

15."Despite the anxiety symptoms during the illness period, I am firmly of the opinion that his personality has always been satisfactorily stable in both temperament and emotion while there has been no violent disposition. His capacity for providing childcare and guidance to his children, without others' assistance, is full. His is also mentally suitable to live with his children alone. In short, there is no mental or medical reason against his capacity to perform the duties as a loving and caring father."

16.He says that in the early days he played a full role in caring for the children and that included taking them out to play and supervising and assisting their homework. That had come to an end by April 2001 by which time the wife insisted on taking over that role; that is why it is her signature and not his in their notebooks. Now he is permitted almost no part in their lives. That included not being invited to or even told of the eldest child's primary school graduation ceremony. He says the wife is lax on discipline, buying the children's affection by spoiling them.

17.He is keen to have sole custody of the children, is dedicated to the task of preserving and safeguarding their best interests, has undertaken a course in single parenting and has the capacity and income to support them. On the issue of childcare he, too, has family back-up if necessary. He has had strong ties with the children in the past. He regarded himself their primary carer until difficulties in his relationship with them gradually emerged due, he says, to the wife putting pressure on them and causing them to be alienated from him.

18.He says he is to be preferred as the custodial parent because he alone can instil in them the virtues of integrity, honesty and faithfulness; qualities lacking in the wife.

19.I come now to the Social Welfare investigation and report. The task was assigned to a (SWO) and her report is dated March 2002. She began by setting out a brief history of the parties, their qualifications and positions, the marriage, the arrival of the children, the break-up of the marriage and the aftermath. She gave a brief account of the children, of their daily timetables, of their health and their respective stages of development. She noted that (A) had suffered from obsessive irrational fears in or around the year 2000 but that her condition had improved following a psychological assessment and treatment. She recorded the views of the parties vis-a-vis the role each claimed he and she would play in fostering and nurturing the children's development.

20.The wife told her that she should be the sole custodian, given her physical and emotional attachment to them, and that in her opinion they could not bear to live apart from her. She did not exclude the father from playing a part in the children's future. But she found his attitude to discipline was rigid and strict which put pressure on the children and was bad for their self-confidence. She said he was old fashioned, traditional in his thinking and would have difficulty in responding to the children's needs as they approach their teenage years. She raised as an issue the father's mental illness; whilst noting he had recovered she wondered if he had the capacity to be a primary carer. Nevertheless, she recognized the value to the children in there being regular access including staying access. She wanted the father to move out of the home so that the children's environment would not be disturbed. She said she had suffered during the period of enforced living together with sleep-loss and hypertension, requiring regular medical attention.

21.The husband told her he was angry about the divorce and that at one stage he had hoped to reconcile. He blamed the wife for alienating the children and adversely affecting his relationship with them. He regarded both as having played a primary role in their care, growth and development. He hoped that they could continue to share the responsibility by becoming joint custodial parents. He told her, initially, that if this could be agreed, with his playing a major shared role in the children's upbringing, he would be prepared to move from the home, but with regular defined access including staying access over weekends and holidays. If joint custody could not be agreed, he pressed for sole custody.

22.With these views in mind the (SWO) conducted a joint interview in February this year. The result of that was that the parties agreed to an interim joint custody initially for 6 months, with care and control to the wife with whom the children would live; the father agreed to move out by the end of April, and there would be defined access including staying access. It was further agreed that there should be Social Welfare intervention and supervision, and that the children should be given psychological treatment to help them get over their parents' divorce. It was proposed and agreed that the matter could be reviewed after the trial period of six months. Subsequently she was informed by the husband that on advice from his solicitor (F) (who conducted his case before me) he had decided not to move out; he was proposing to pursue not only joint custody but joint care and control as well. It was his belief, as discussed with (F), that the status quo should be preserved to enable him to be there for the children and to attend to their daily needs. This was not acceptable to the wife who told her that with the terms of the agreement abandoned she would press for sole custody and the ouster of the husband from the home.

23.Next the(SWO) considered the views of the children. (A), the eldest, said it was stressful having her parents living in a state of separation under the one roof. She held a firm view that their custodial parent should be their mother, and was angry with her father that he should be contesting custody. She wanted him to move out so that she and her sisters could be with their mother. She said her father treated her very well in earlier years, but she found it hard to communicate with him latterly. She valued his contribution and was prepared to accept terms of access including staying access. The two younger daughters, (B) and (C), expressed a similar view.

24.The(SWO) noted that the relationship amongst the three girls was a close and intimate one, with much sharing and reliance on each other. With their mother there was interaction and communication and clearly a close emotional bonding with her. Comparatively, their relationship with the father was strained, suppressed and reserved.

25.After that review the(SWO) drew conclusions and gave her recommendation. She formed the view that psychological treatment for the girls would be beneficial, and might help to relieve the pressures brought about by the divorce. On the issue of custody she said :-

26."Considering the children's need for a stable, caring and consistent person who can provide constant care and attention as well as proper guidance for their normal growth and development during their stages of puberty and early adolescence, it seems that (X), having established a close emotional bond and intimate relationship with the children, is more capable of performing such role. Comparatively, the children's relationship with the father is very much affected by his improper mode of parenting in the past year. Nevertheless, protecting the emotional bond between the children and the father could provide the children with alternative role models and regular access will allow the father to maintain an unbroken tie with the children".

27.She went on to note that the parties had in February agreed to settle their differences and submit to a joint plan of custody and access, the father to move from the home. Whilst noting that he was subsequently, on advice, to renege from that agreement, she nevertheless expressed the view that it should be reinstated. She then made a series of recommendations, but conditional upon the husband agreeing to vacate the home by 30th April 2002, as follows :

28.(i) interim custody of all three children-in-question, (A), (B) and (C), be granted jointly to the Petitioner mother, (X) and the Respondent father, (Y);

29.(ii )interim care and control of the three children-in-question, (A), (B) and (C), be granted to the Petitioner mother,(X);

30.(iii) interim defined day access to all three children-in-question, (A), (B) and (C), be granted to the Respondent father, (Y) from the time after the children's scheduled extra-curricular activities to 10:00 p.m. on the first and third Saturday upon the moving out of the Respondent father, (Y) from the present matrimonial home on or before April, 2002;

31.(iv) interim defined staying access to all three children-in-question, (A), (B) and (C), be granted to the Respondent father, (Y) from the time after the children's scheduled extra-curricular activities on the second and fourth Saturday to 2:00 p.m. on the second and fourth Sunday upon the moving out of the Respondent father, (Y) from the present matrimonial home on or before 30th April 2002;

32.(v) to facilitate both parents' future cooperation in dealing with the children's welfare, a supervision order for 12 months is to be issued;

33.(vi) to help the children get through from the parents' divorce, psychological treatment for all three children-in-question, (A), (B) and (C) is recommended; and

34.(vii) to further access the feasibility of a long-term joint custody arrangement and to finalize the access arrangements during the children's long holidays, an updated report in 6 months' time is also recommended.

35.Dr (D) is the clinical psychologist who, as a result of a court direction, was jointly appointed by the parties to assess and report on the parties and the children. She conducted a series of interviews and submitted the parties to a series of clinical tests, conducted in January and February 2002. In her report she gave a detailed and comprehensive account of the interviews and test results. She noted the deteriorating relationship between the parties, culminating in the outburst which precipitated the "separation". She recorded the attitude of the children to the parties thereafter; in particular their progressing rejection of and alienation from the father and his resultant anxiety and depression. She formed the view that they were the victims of "Parental Alienation Syndrome" being "a disturbance in which the children are preoccupied with deprecation and criticisms of a parent". She found them to be currently at risk emotionally. She said that energy had been drawn to parental alienation and conflict. Their fulfilment of needs had to be deferred to parental needs. Their concentration, learning, performance, appetite, sleep and interpersonal relationships could be affected.

36.She said both parents were capable of fulfilling their parental obligations and advocated what she called parallel parenting, by which she means each to undertake specific parenting tasks to be allocated in the course of a plan advocated by the court or a case manager to be appointed. But both parents need psychological counselling to give them insight into their present difficulties and to further their parenting skills. As well, the children need therapeutic help, primarily to help them free themselves of their parents' complaints and develop satisfying relationships with both parents.

37.In pursuit of these goals Dr (D) made no recommendation of custody, access or childcare. But she did not discount that a continuation of the status quo with all members of the family undertaking therapy for about a year might be the way forward; a year is about the right period of time to see if a programme is working.

38.That represents a summary of what I regard are the most salient parts of the evidence and reports before me; I now came to deal with the issue of custody and related matters.

39.As I have said, the overriding consideration is the welfare of the children. But as a means of establishing how that might be achieved, there are a number of subsidiary factors to consider; in the form of a checklist. These are not presumptions, nor is there any particular order of importance, and each can be offset by the particular circumstances of any given case. Those pertinent to this include the following :-

40.(a) the respective childcare plans of the parties should be compared, which includes the furtherance of the education and recognition of special needs, ability to provide primary care and assistance where necessary. Both parties have the ability to provide for the children under this head. Both are teachers with skills to develop and nurture their daughters' growth; both have adequate resources to widen their worlds; both can provide domestic help and family back-up. But the husband has the disadvantage that the children are not receptive to him, whilst their relationship with their mother is close;

41.(b) children should be kept together where possible. This is particularly important in this case, for all three are girls close together in age. Of course this is not an issue; neither party wants them to be separated;

42.(c) a status quo that has been settled for a while and is working should not be disturbed. In this case the status quo being in fact all parties living under the one roof is clearly not working, with tensions and pressures causing ill-health, in some degree, to all members of the family. This situation clearly needs to be changed, and urgently;

43.(d) joint custody should only be considered where the parties are able to bury the differences which have led them to end the marriage and share by discussion, negotiation and decision plans that affect the children's development. Joint custody was contemplated and agreed before the husband withdrew from the proposal. A court will be slow to force joint custody on parties who do not want it. And it is hard to see in the present environment of tension and non-communication how this might be made to work;

44.(e) the wishes of the parties should be heeded. Of course in this case there is significant disagreement. But at least both agree the non-custodial parent should enjoy generous access including staying access, and play an important role in the children's upbringing;

45.(f) the wishes of the children should be paid heed to, if they are old enough to be capable of having an informed view. In this case, the children's viewpoint should not be discounted, particularly as it is clearcut and unanimous; not only are they wanting to remain with their mother, they are angry with their father for challenging her claim. But they have also expressed a willingness to the proposals of access including staying access;

46.(g) by and large infant children should be with their mother, and young girls similarly. The children are no longer infants but are still young, with puberty lying ahead. This favours the mother's chances;

47.(h) the recommendations of a (SWO) should be accorded much weight; and rightly so, for they emerge from an investigation which gives the officer the opportunity to make an informed view without bias; indeed if a court departs from the recommendations it should give cogent reasons for doing so. In this case Social Welfare Officer recommended joint custody but, curiously, on the basis that the husband undertake to move out from the home, notwithstanding that he had expressed his decision not to do so, at least not unless ordered; that decision remains unaltered;

48.(i) the viewpoint of any other court-appointed expert should be given due consideration. Dr (D) made no specific recommendations but did advocate parallel parenting, the appointment of a case manager and psychological therapy for all of the family for a year; she did not discount the status quo prevailing.

49.So now from my decision.

50.All factors, at least the important ones, favour custody, care and control in favour of the wife. To my mind that is incontravertible. Putting it another way, I cannot entertain as a serious proposition that the husband assume that role to the exclusion of the wife. That will be an intolerable affront on her role played to date, particularly during the difficult two and a half years of separation yet togetherness since February 2000.

51.It is even less viable that there be joint care and control, with his staying on in the home. I reject as a nonsense the proposition that the status quo prevail, even though Dr (D) does not discount that as a possible remedy. Life has been barely tolerable for more than two years because of that; it would be a mockery of the proper exercise of my discretion if I were to permit it to continue. The marriage is over, the parties are divorcing; the conflict must end. They are each entitled to be free to pursue their lives separately from hereon. The respondent will be ordered to vacate the home as soon as reasonably feasible.

52.Nor is their room for joint custody given the difficulties that clearly prevail in communication. Without communication there can be no meaningful dialogue, necessary if there is to be joint decision making on important steps in the girls' development. Having discounted joint custody I am not at odds with the(SWO)'s recommendation, as it is somewhat meaningless without the undertaking of the husband to move out upon which it was dependent.

53.There will be a supervision order; the parties may need assistance on the issue of access.

54.I propose to order access, but to make no specific order as to how and when. I am comforted that there is no dispute that both parties agree it should be generous and include staying access, and the children seem receptive. But I am concerned that an arbitrary laying down of a specific timetable may be counter-productive. I propose that this should be the subject of discussion, overseen by the(SWO) or the duly appointed supervisor. The starting point should be the programme recommended by (SWO), presumably one discussed with the parties, but regard should be had to what the children think. The parties should recognize that there might be the need for a period of adjustment, and be ready to amend the plan accordingly.

55.I do not propose to make an order for psychological counselling for the children at this stage. There has already been a significant amount of this. To my mind there will likely be a profound lifting of the pressures the family has been burdened with, caused by the enforced togetherness in the confines of a small flat and the disputes remaining unresolved. With the case settled and the parties no longer together there may well be no need for further psychological intervention after all. That will be for the parties, in particular the wife as custodial parent, to monitor.

56.And there will be no direction that the parties pursue counselling for themselves. Of course they are free to do so separately or together if they want.

57.The express orders I make are at the end of the judgment.

58.I come now to the respective claims for ancillary relief.

59.Both parties have made specific claims. The wife seeks periodic maintenance for the girls in the sum of $21,000 per month during their dependent years, nominal maintenance for herself and the transfer to her of the family car. The husband's claim belatedly made, is for the right to occupy the master bedroom in the home and the transfer of the home to the wife and himself as joint tenants. Of course his claim for occupation now falls away.

60.I deal first with the legal principles.

61.In considering claims of this sort I am obliged to pay heed to the provisions of section 7(1) of the Matrimonial Proceedings and Property Ordinance (MPPO) which, summarised, require me to have regard to the conduct of the parties and all the circumstances of the case including their income, earning capacity, property and resources now and in the foreseeable future, their financial needs, obligations and responsibilities now and in the foreseeable future, the standard of living they enjoyed, their respective ages and state of health, the duration of the marriage, the contribution each has made to it, both financially and otherwise, and the loss either may suffer as a result of the dissolution, such as forfeiture of the right to benefit in a pension scheme. In addition, there being dependant children, I am required under section 7(2) MPPO to have particular regard to their needs, including any physical disability, expectations there may be concerning their education and, as far as is possible in the circumstances, make such determination as will provide for them as if the marriage had not broken down.

62.Both parties have worked throughout the marriage earning more or less the same income as teachers. They have not pooled their incomes but I am satisfied they have each contributed to the assets acquired, in about the same amount. Their first home purchased before their marriage in joint names was financed by the husband's parents whom he paid back. But the wife contributed to the joint coffers to enable him to do so. And this represented a pattern which persisted through the marriage. They upgraded their home, twice, moving into Baguio in 1993. Title was put in the name of the wife because as a civil servant that gave her the right to borrow at preferential rates. They bought two commercial units in China, in the husband's name, for investment. Unfortunately this has not proved profitable; the units are worth but a fraction of the purchase price.

63.The declared assets include the Baguio flat, in the wife's name, currently worth $4.75m. There is a first mortgage now of about $1.7m whose monthly instalments of about $30,000 are met by the wife with contribution of $13,000 from the husband. The mortgage has about 7 years to run; it will be fully paid in 2009. There is also a personal loan of now about $150,000 whose instalments of about $6,000 per month she also meets. So currently the equity in Baguio is worth $2.9m. The wife has $15,000 in the bank but is liable for her legal costs of the divorce of $60,000.

64.In the husband's name are the two commercial units in Shanghai and Fu Shan. Although bought for a great deal more, Shanghai is worth RMB360,000 (about $350,000). Fu Shan is worth only RMB50,000 and there is a mortgage outstanding of about the same amount. The husband pays this at the rate of $4,200 per month and it will be repaid by December 2002. He has artwork worth $14,000 and bank savings of $335,000 with the balance of legal costs outstanding of $25,000.

65.There is the family car. No value has been declared. It is registered in the husband's name but used solely by the wife to get to and from work and to ferry the children.

66.Both have pensions of comparable worth which will yield to them each several million dollars at the age of 60, assuming retirement by then. That will be in about 8 years for the husband and 13 for the wife.

67.The wife's current income is $63,195 per month. In addition she receives a housing allowance of $15,000 (which comes to an end in September 2003) an education allowance of $1,700 and $1,300 for being an examinations marker. Her expenditure totals $103,000; that includes all the household expenditure and the major cost of the children's expenditure. She receives $13,000 from the husband towards the mortgage.

68.The husband receives also $63,195 per month, plus RMB3,600 ($3,400) being rent from the commercial units. His expenditure is $46,450 which will drop to $42,250 when the Fu Shan mortgage is paid off in December. $13,000 of this is his contribution to the mortgage.

69.The wife's claim for $21,000 for periodic maintenance for the children is based on simple arithmetic; that is the shortfall between income and expenditure, presumably on the basis that the $13,000 the husband pays presently will be absorbed into it, though she does not expressly say so. The husband's counter proposal is to pay $10,500, based solely on the fact that it is a half of her claim.

70.The husband claims to be entitled to a joint interest in Baguio because it is effectively jointly owned and would have been so registered had it not been for the favourable rates available to the wife as a civil servant. He is willing to give credit for a half interest in the assets in his name; specifically the units in the PRC. He is willing also to transfer the car to the wife.

71.The wife resists his claim for Baguio, because it is or should be the home preserved for herself and the children; this order on custody will no doubt cement that view. It was the husband's idea and wish to invest in the PRC; if he is entitled to any share of the assets it should be recongized in the $870,000 he withdrew to pay for these, not their current worth. She has no interest in the units and makes no claim.

72.Having set out the financial circumstances of the parties, I now came to deal with the claims, paying heed to the provisions of section 7(1) and (2) MPPO.

73.The claim for child maintenance should, I believe, not be determined by the wife's shortfall of income, though that is a practical approach, but by the parties sharing equally the cost, actual and notional, of the children's expenditure. By notional I mean in each case the child's pro rata share of communal expenditure; for instance the costs of Baguio.

74.The wife's declared expenditure has not been challenged. Calculating that which is shared expenditure on a per capita basis and adding the actual cost of expenditure for the children equally, I arrive at a cost per child of a bit of more than $14,000 per month per child, which justifies her claim of $7,000 per month per child.

75.Can the husband meet this ? I believe the answer is yes. His expenditure is currently $46,450; that will reduce to $33,450 without the contribution of $13,000. It will drop below $30,000 in December when the Fu Shan mortgage is paid off. Presumably when he vacates Baguio there will be rent and incidental expenditure for him to find. But in my view and I so find there will be sufficient available for him to pay his proper share. And he has his savings as back up. So that is how I shall order. But only for the meantime. Next year, in September, the housing allowance comes to an end. From that date on the wife will receive $15,000 per month less. Pro rata this represents $3,750 per household member. That is the additional expenditure for each child. The husband's share of that expenditure will be half of that rounded up, or $2,000 per child, as from October 2003.

76.I come now to the capital distribution. In this regard I pay heed to the parties' respective needs and entitlement. But my primary responsibility is to the children; in particular, to ensure their lifestyle is maintained at the same level as if the marriage were not to have foundered, as far as may be possible in the circumstances. Put simplistically this can be achieved by preserving Baguio as their home until their independence.

77.I accept the wife has a proprietary claim to Baguio. But to deny the husband an entitlement is to ignore his contribution and needs. She may feel she has a justifiable grievance that much of their accumulated wealth was lost in the PRC investment. But that is simply a part of the uncertainties of life. The investment was made out of shared capital during the marriage and she must suffer the loss in like manner.

78.But I do not accept as appropriate that the husband should be made a joint tenant of Baguio. A joint tenancy is entirely inappropriate for a divorcing couple, particularly a warring divorcing couple, for neither would be able to deal with the property without the consent of the other, or court order. And nor should the husband be entitled, in years to come, to enjoy a half interest in its then worth, given that the burden will, mostly, be on the wife to meet the costs including the mortgage.

79.What I propose to do is to divide the available assets 50 / 50 between the parties as at today's values and recognize the husband's resultant interest, allowing credit for those already in his name, by a charge on Baguio, which will not be realized until the children are independent, for reasons already spelt out. The wife may choose to pay him at such time by raising the same on Baguio, or by an advance on her pension, or by sale. The choice will be hers. The husband will have the usual right of enforcement if she declines to take any step. Each party shall retain exclusive right to the respective pension plans they own.

80.The exercise is straightforward. The equity in Baguio is $2,900,000. The wife has a negative balance of -$45,000 cash. The PRC units are worth $350,000 and the artwork and cash less balance for costs $324,000. This all comes to $3,529,000. Divided by two, their equal shares are $1,764,500. The husband already has $674,000 in cash and assets, being a balance due to him of $1,090,500. Rounding down to $1.09m, this will be available to him once support of the children no longer is a parental responsibility.

81.This completes all matters save for the orders I shall made shortly, and costs. The order for costs will be nisi at first instance as the parties have not had the opportunity to argue these. But I set out brief reasons for assistance.

82.The usual order for costs is that costs follow the event. But that is a presumption readily disturbed where the argument is about custody or otherwise concerns dependent children, because a party should not be penalized in costs for pursuing or defending a claim where he or she genuinely is concerned for their welfare. In this case the primary issues including those dealt with as interlocutory matters have been about custody. In my view the outcome of that has all along been clearcut. The wife has been able to demonstrate that it is in the best interests of the children that they be in her custody, either jointly or solely, with care and control in her favour. The husband having failed to recognise this delayed the outcome and was directly to blame for most of the costs incurred, for which he should now be liable.

83.On the issue of ancillary relief the wife has succeeded in her claim but has not been entirely successful in her defence of the husband's. Accordingly I propose to order that the lion's share of her costs overall, that is to the extent of four fifths, should be borne by him.

84.The orders now follow.

85.Custody of the children shall vest in the petitioner with access to the respondent as hereinafter provided; there shall be a supervision order for 12 months, with a further Social Welfare report called for to be produced before the 12 months has expired;

86.the terms of access shall be as may be agreed between the parties assisted by the supervisor. The terms of reference shall be as per recommendations (iii) and (iv) of the Social Welfare report of 4th March 2002. But the parties will pay heed to the circumstances of the case, including the wishes of the children, with liberty to apply;

87.the respondent shall vacate the home as soon as possible and no later than 14th September 2002;

88.the respondent shall pay to the petitioner periodic maintenance for each of the three children until in each case the 18th birthday or cessation of full-time education whichever is the later by payment of the sum of $7,000 per month per child (to increase to $9,000 per month per child from and inclusive of 1st of October 2003) by direct credit to her bank account beginning 1st September 2002;

89.the respondent shall pay to the petitioner for her support the sum of $1 p.a. the first payment falling due on the date of the decree absolute;

90.the respondent shall forthwith after the date of the decree absolute transfer to the petitioner all his interest in the motor vehicle hitherto in his name and shall facilitate the change of ownership thereof;

91.the petitioner shall forthwith after the date of the decree absolute execute in favour of the respondent a legal charge over all her estate and interest in the property situated and known as (E) in proper form prepared by the respondent's solicitors at his expense securing to him the sum of $1,090,000 which shall not fall due for recovery until the date by which all the children shall have reached the age of 18 years and completed their full time education;

92.otherwise each party shall retain all property real and personal in his and her name;

93.80% of the petitioner's costs taxed if not agreed including any reserved shall be borne by the respondent; otherwise there shall be no order for costs. This order for costs is nisi at first instance.

94.With the welfare of the children resolved these shall be a section 18 Cap 198 declaration.