L v. K
Read the full judgment text of FCMC 2889/1997 on BabelCite. This Family Court judgment before H.H. Judge Bruno Chan.
Custody dispute between divorced parents – Welfare of children as paramount consideration – Mother awarded custody due to better availability and understanding of children's needs – Father's financial situation precarious with high credit card debts and mortgage – Matrimonial home ordered to be sold to relieve financial burden – Maintenance of $15,000 per month ordered – Reasonable access granted to Father – Guardian of Minors Ordinance, Cap. 13 s.3(1) applied
Legal issues: Custody of children · Financial capacity and property disposal · Maintenance
Outcome: Custody awarded to the Mother; Father granted reasonable access; Matrimonial property ordered to be sold; Maintenance ordered
|
FCMC002889/1997 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES SUIT NO. 2889 OF 1997 --------------------
-------------------- Coram: H.H. Judge Bruno Chan in Chambers
Date of Handing Down of Judgment: 29th December 1998 _______________ J U D G M E N T _______________ 1. This is the parties' contested application for custody of their 3 children of the family, all daughters who are at present residing with the Father at the former matrimonial home owned by the parties, the Mother having left in late 1996 after the breakdown of the marriage. The Mother now wants the children to live with her in some rented flat, whilst the Father insists that they should remain in his custody at their present accommodation. A brief background of the case and the proceedings is relevant. 2. The parties were married on 30th January 1986. The eldest daughter N was born on 1st September 1986 and is now 12. The 2nd daughter E was born on 20th December 1987 and is now almost 11. L who is the youngest daughter, was born on 10th October 1990 and is now 8. The Mother used to work in the Father's then paging company but became a full time housewife after the birth of the 2nd daughter in December 1987 until about September 1993 when she started to work for the Father in his insurance business. A maid was then employed by the parties to look after the children whilst the Mother was at work. 3. There were soon numerous marital problems which finally came to head when the Mother moved out by herself in late 1996 and a confrontation between the parties later in January 1997 when the Mother was assaulted by the Father resulting in her being hospitalised and him being arrested and charged by the police. On 20th March 1997 the Mother filed for divorce against the Father based on his unreasonable behaviour including his hot temper and his use of violence on her during the marriage. In her petition the Mother also sought custody of the 3 children and various financial reliefs including transfer or settlement order in respect of the parties' joint property at Whampoa Garden, Hunghom. 4. On 17th December 1997 the decree of divorce was granted uncontestedly to the Mother, but the questions of custody and ancillary reliefs were adjourned for argument pending a social welfare report. In March 1998 the report was submitted in Court with a recommendation that custody of the children should remain with the Father with reasonable access to be given to the Mother. This recommendation however was rejected by the Mother and the matter was subsequently set down for trial. Both parties have filed several affirmations for custody and gave extensive oral evidence at the trial, as did the Social Welfare Officer Mr. Lai who was kind enough to have up-dated his report shortly before the trial. At the hearing the parties agreed that I should also deal with the question of maintenance together with custody to save time and costs. At present all 3 children are residing with the Father and go to the same school in Form 1, Primary 6 and Primary 3 respectively, with the eldest child attending whole day school whilst the 2 younger children attending session. The Father has employed a Filipino maid to look after the children whilst he is at work. 5. The Mother's case is that she was a full-time mother and the primary carer of the children from December 1987 to August 1993 whilst the Father was always busy with his work and that he used to leave home early every day and return home only late at night during weekdays, whilst on Sundays and holidays he would sleep until noon and actually spent little time with the children. She believes this is still his present situation which she says has been confirmed by the Social Welfare Report. 6. The Mother says in May 1993 she discovered that the Father was having an affair with one of his colleagues Madam Z. She says the Father told her that he was merely having fun with Madam Z who was his subordinate in the insurance company where he worked and that he needed her assistance in his work for his own career's advancement. She says he had promised to end the affair once he got his promotion. She explains that as she was totally dependent on him with 3 small children, she had no choice but to put up with it and started to work for the Father in the insurance company in September 1993. As a result a maid was employed to look after the children whilst she was at work. 7. However, the Mother says, the Father did not end his affair with Madam Z as promised and in fact even demanded her to participate in their sexual activities together. She says it was on his birthday in July 1993 when he brought Madam Z home and made the demand, suggesting that it would be the best birthday present to him. She says she acceded to his request but felt very ashamed and became depressed afterwards. Since then he would take Madam Z home from time to time for similar sexual activities with her and continued with the affair even after his promotion and despite her repeated requests to end their relationship. She says she had thought of committing suicide at that time but did not because of her children. 8. It was during this difficult time, the Wife says, that she became acquainted with a Mr. S, a colleague in the same insurance company. She says at first they were just good friends and as Mr. S also had his own marital problems, they began to share their grievances and supported each other emotionally. She says between 1993 and 1996 the Father's behaviour became worse in that not only did he insist that she accepted his adulterous relationship with Madam Z, he also suggested that the Mother should invite some of her girlfriends to participate in group sex activities with him which caused her great emotional distress. At the same time he also began to stretch his financial resources by borrowing heavily to invest in real estate with the hope of making quick money, as a result the family was frequently living on deficit. 9. The Mother says it was in October 1996 that she came to the conclusion that her marriage was at an end and therefore left the matrimonial home by herself. She continued to work in the same insurance company as the Father and visited the children regularly at their home. On 20th January 1997, the Mother says, whilst she was meeting Mr. S in a park, the Father and 2 men with triad connection confronted them and when she refused to go with the Father, he assaulted her severely. She subsequently reported the matter to the police and was hospitalized for 3 days. The Father was later charged by the police and was fined $2,000 and placed on probation for 18 months. 10. After her discharge from hospital, the Mother says she discovered that the Father had removed the children to Macau, and threatened to kill them so that she would never see them. She says the Father had kept the children in Macau for 3 days to put pressure on her during which the children missed their school and it was only after she had travelled to Macau to plead with him when the children were returned to Hong Kong. 11. After this incident, the Mother says, the Father agreed to move out of the matrimonial home so that she could move back in to look after the children. However, 2 weeks later the Father returned to the matrimonial home to quarrel with her during which she says he assaulted her again. The Mother left home for good on this occasion to take shelter at the Harmony Home until March 1997. During this period she says she would still return home almost everyday to see the children whenever the Father was not there. 12. The Mother says she has since the divorce proceedings been visiting the children about twice a week and would have telephone contacts with them as often as possible. She says the children would call her instead of their father whenever they have any problem or are in need of anything. She says it is she who takes them to the doctor or dentist for treatment, to purchase clothings or necessities for them, and to attend school meetings with their teachers. The Father is seldom at home and is incapable of taking proper care of them. She says there were many past instances of the Father's neglect or inability to take proper care of the children. 13. Before the Father and the children moved into their present address at Whampoa Garden in March 1998 which is jointly owned by the parties, they were residing in a rented flat at Wa Fung Street, Hung Hom in the midst of funeral homes and parlours which according to the Mother caused the children to be frightened at night. The Mother says the Father however neglected to provide the children with the key to the front gate of the building where they lived so that everytime after access the children were unable to get into the building and had to wait in the street until the Father or the maid returned home. She remembers one occasion when the Father ignored her calls to open the gate for the children, she had to lie that the children had an accident in order to attract his attention, and even that took him a long time to respond. She says the children were often cold and scared while waiting in the street in the dark sometimes for up to half-an-hour but despite her repeated requests for the Father to provide the children with the key, it was never done up to the time when they moved. 14. The Mother also complains that the Father gives the maid only $60 per day to purchase food for the children which sum is far from adequate and as a result all 3 children are skinny and underweight. She says that there had been occasions when the children called her for household money as the Father had failed to give money to the maid for food. She has cited the example that during the last summary holiday, she had to purchase exercise books for the children because the Father refused to do so, despite the fact that the cost was a mere $18. She says there were also several occasions during weekends in the past year when neither the Father nor the maid were at home and that the children were left alone and hungry as there was no food at home. She believes that the Father has to go on overseas business trips from time to time but he often failed to make prior arrangements for the children during his absence such as keeping his maid at home or enlisting the Mother's assistance. She says now she has to ask her friend Madam Ho who works in the same office of the Father to inform her everytime he goes on trip so that she can look after the children during his absence. 15. The Mother accepts that the flat at Whampoa Garden where the children now reside is spacious and comfortable and that the children like it very much, but she does not believe that the Father can afford it and that sooner or later the property will have to be sold and the children will have to move again. She says the Father in his 1st Affirmation of Means disclosed that he earned only $17,000 per month in 1997, and that although he may now be earning more, she does not think it is sufficient enough for him to maintain his present standard of living for long as he has a lot of debts and liabilities from his credit cards expenses and bank overdraft, some of which have been charged against the property with interests accruing, whilst the mortgage payment alone at one time was as much as $27,000 to $28,000 per month, let alone his household utilities and other expenses including his own entertainment expenses which are substantial but necessary in his business, but with the present economic downturn, she believes that his income is going to be affected and soon he will not be able to meet his various liabilities. She says the present apparent comfortable situation of the Father is misleading as he has been stretching his financial limit and relying heavily on borrowing from one hand to meet the minimum liability of the other just to get by each day, such as with his credit cards payments. She says there has been many occasions when the Father failed to pay the maid or some of the utilities charges and fell into arrears with the mortgage payments due to his tight financial position. She says she has urged the Father to sell their joint property to release the family of the financial burden created by him but he has been using various excuses to avoid facing up to the reality. 16. The Mother admits that she has since April 1997, after leaving the Father for good, been cohabiting with the said Mr. S but has no immediate plan to get re-married. She says that in the past year Mr. S had gone out with her together with the children on many occasions and that they now get along well with each other. She says the children are well aware of her relationship with Mr. S and have accepted him. If the children have any problem living with Mr. S, the Mother insists that she will not have him in her home until the children are able to adjust to him. She says she is not very familiar with Mr. S's financial situation and that their relationship is not yet at the stage that she would rely on him financially. 17. Since the breakdown of the marriage the Mother has moved to work in another insurance company before changing to her present part-time job at a food shop working mainly in the morning at $4,800 per month. She says she will give up her job if she is granted custody of her 3 children in order to look after them. She will look to the Father for financial support and if that is not possible or sufficient, she will apply for public assistance, as she wants to be with the children at home to devote her time and care to them and to give them more sense of security. 18. She argues that with the Father's temper and low sense of morality, his persistent lack of time or care for the children due to his busy work schedule, and his financial limitation have all made him unsuitable to have custody of the 3 daughters, in particularly with the 2 elder ones already reached puberty stage and are in greater need of their mother for proper guidance and advice, whilst the youngest daughter has all long expressed her strong preferences to be with her mother and in needs of her mother's care and help with her studies, as pointed out by the Social Welfare Report, although she does not agree with the report which says that the younger children's preference to be with her was based on her offer of gift and money to them. The Mother reasons that as she used to spend much more time with the children during the marriage whilst the Father was rarely at home, the children were and still are more attached to her and it follows that they expressed their preference more for her than their father which has nothing to do with any offer of gifts or money. She cited the example that the 2nd daughter E recently started to have menstruation but was embarrassed to tell the Father. Instead E sought help from her and it was she who has been purchasing sanitary items for her and giving her guidance, as the Father never bothers with it. 19. The Mother argues that the biggest problem in the Father's present child care arrangement is that he spends too little time with the children, especially during weekdays. She says that dispute his denial, he still returns home only at around 11:00p.m. every night when the children have already gone to bed and that the children have their daily meals without the company of their father, which is verified by the Social Welfare Officer. Each day the children can do whatever they like after school without any adult supervision, and that despite the Father's evidence that he has told the children to seek their mother's permission before they can go out to play, apparently his instruction has not been strictly observed by the children. Furthermore, the Mother argues, the maid may be able to tend to the children's physical needs, she certainly cannot supervise them over their homework or provide them with proper guidance, and definitely cannot discipline them. She argues that the children are in great need of parental care and guidance, and being girls at their present age they need their mother much more than their father. 20. The Mother denies the Father's allegation that her primary motive in seeking custody was in fact after his Whampoa Garden property. She maintains her belief that the parties cannot afford to keep the property which, in the present market situation and the heavy mortgage and liabilities now encumbered thereon, is not worth much and she says she is not interested in making any claim for it. She proposes however if custody of the children is granted to her, in order not to disturb the children too much and to allow them time to adjust, she should be allowed to move into the Whampoa Garden flat to take care of the children to the exclusion of the Father until such time when the property is sold and all the financial burdens of the parties discharged, in which case she will rent a 400 sq.ft. 2 bedroom flat near the children's school as a home for the children. She estimates that she will then require about $15,000 per month including rental to support herself and the children which she hopes will come from the Father. In time she says she may find a part-time job when the children are at school. Lastly she agrees that the Father should have reasonable access to the children including staying access over weekends and school holidays. 21. Mr. S has given evidence in support of the Mother's case confirming that he is cohabiting with her and that he has a good relationship with her children. He does not foresee any problem living together with them but is prepared to move away from the Mother for a while if she is granted custody so as to allow the children time to adjust and settle down. He also confirms that his wife is divorcing him and that he intends to establish a permanent relationship with the Mother. He says he is an insurance agent and would be willing to support the Mother and her children, although his present resources are limited. Regarding the incident in January 1997 at the park, he accuses the Father of bringing along 2 men to threaten to kill him if he did not leave the Mother. He says he also witnessed the Father kicking the Mother violently during that incident. 22. The Father's case is essentially that the children have been well looked after in his household, that it would not be in their interest to disturb their present status quo and that the Mother is too involved in her relationship with Mr. S to be able to take proper care of the children. He asks that custody of the 3 daughters should remain with him as recommended by the Social Welfare Report. 23. The Father says that when he was a senior branch manager at Top Glory Insurance Co. (Bermuda) Ltd. before, he was able to earn almost $30,000 per month. After his move to AIA Co. (Bermuda) Ltd. last year as an insurance agent, his monthly income was initially much less than before, which was normal as he needed time to build up his clientele at the new company. It was unfortunate during this period that the marriage hit the rock when he became too emotionally stressed to concentrate on his job. Hence there were debts and all sorts of financial problems including payment of tax. He says he has now put behind the unhappiness of the breakdown of his marriage and re-focused on his new job, and with more clients he says his average income has now gone up to $58,000 per month on average which is sufficient to meet the needs of his children and his other commitments and liabilities, and to maintain the present standard of living and the Whampoa Garden property for the children. 24. The Father admits that in the past he was seldom at home due to his busy job, but with the improvement of his financial situation and his recent promotion to branch manager at AIA, and hence with more subordinates working for him, he says he is now able to be home between 8:00p.m. and 9:00p.m., sometimes even early enough to have dinner with the children, and to spend the rest of the evening with the children and to supervise their schoolworks and studies. He admits that although he may sometimes have to take short business trips which are no more than a few occasions each year and only for a weekend each time, he will make sure that the children will be sufficiently provided for and that in future he will inform the Mother in advance of each trip to enlist her assistance during his absence. He agrees that he never told the Mother about the trips in the past due to their animosity towards each other, but he did always ask his good friend Mr. C to keep an eye on the children during his absence and he promises that in future he will co-operate with the Mother over the welfare of the children. 25. The Father also admits of having a sexual relationship with Madam Z but it already ended in 1993 and strongly denies ever requesting the Mother to engage in sexual activities together with him and Madam Z. He says that on that occasion of his birthday in July 1993, he invited Madam Z to join his birthday dinner with the Mother just to show that their affair had indeed already ended, but as Madam Z had become slightly drunk at the dinner, he decided to let her rest in his home that evening but there was no sexual activities between them or the Mother on that occasion or thereafter. 26. The Father further admits having assaulted the Mother in the park in the incident in January 1997 which he explains was provoked by her intimate behaviour with Mr. S and for which he has since regretted, but he denies that the 2 men who accompanied him were triad members or that they had threatened Mr. S. He says in fact it was Mr. S who professed to them that he had triad connection. The Father explains that after having seen the Mother on 2 consecutive days with Mr. S on a taxi near his home, and when he again saw her getting into Mr. S's taxi on the 3rd day at the same place, he became suspicious of their relationship and decided to follow them but as he was unable to find any taxi, and when he saw 2 men in a van nearby, he asked them for help and offered them $700 to follow Mr. S's taxi, to which they agreed. He denies that these 2 men were his hatchet men brought along to assault the Mother or Mr. S, nor is he a violent man and argues that even the Mother has admitted in evidence that until the incident at the park, he had never assaulted her before and that it was just an isolated incident provoked by the Mother and totally out of his character. 27. Regarding the removal of the children to Macau after the assault incident, the Father explains that at that time as he felt that his marriage was at an end and that as he had to work and with the departure of the Mother, he became concerned that there was no one to look after the children. He says it was the eldest daughter who suggested going to boarding school to learn to be independent and since he could not afford those expensive boarding schools in Hong Kong, he decided to take the children to Macau to look for a boarding school there. He says after 3 days as he was unable to find any suitable school for the children, he decided that the children should return to Hong Kong. He denies the Mother's allegation that the removal of the children to Macau was to threaten her or put pressure on her to return to him. 28. As to the Mother's allegation that in the past he had failed to provide the children with the key to the building where they lived so that they had to wait in the street after having gone out with her, his explanation is that the gate to the building was always left open and it was not necessary to use any key to enter the building. He however admits that he has recently changed his home's telephone number without telling the children, not to prevent the Mother from contacting the children, but to stop the children's friends or schoolmates from disturbing them at night. 29. The Father believes that the Mother and Mr. S had started their affair much earlier than they were prepared to admit and that they will continue to live together and will not separate even if the Mother is given custody of the children. He accuses the Mother of abandoning the children for Mr. S and in pursuit of her own happiness when she left in late 1996, and that she had waited only until now to seek their custody. He is therefore doubtful whether she would really commit herself wholeheartedly to take care of the children now that her relationship with Mr. S has consolidated. He simply does not believe that Mr. S will move out even for a short while to allow the children to adjust as alleged by him. This will mean that if custody goes to the Mother, the children will be thrusted into a situation when they will have to live with a man whom, he believes, they don't like. He has produced some drawings and writings by the children of their impression of Mr. S which is, contrary to what the Mother has said, not at all favourable. He also alleges that the Mother had during the marriage on many occasions brought Mr. S to her home to have sex which made him doubtful that they would become good role model to the children. The Father suspects that the Mother's real motive in seeking custody of the children was in fact her interest in the Whampoa Garden property. He says this is evidenced from the fact that after she left the family, she persistently asked him to sell the property and to share the sale proceeds, but never took any steps to seek the children's custody. It is only after the property market has crashed and that the property is no longer worth much, that she has become "easy and flexible" as to the property. He believes that all along her plan was to use the children's custody to force the sale of the property so that she could use her share of the sale proceeds to set up her own home with Mr. S. She never has any genuine interest in the children's welfare. 30. Furthermore, the Father says that the Mother's proposal to move the children away from their present comfortable and spacious home, with which they are very happy, to a much smaller rented flat in probably a totally strange or unfamiliar environment, albeit in the same Hunghom district, cannot be in the children's best interest. He says that the children have now settled very well in their present home and environment, and that they are under the proper care and arrangements by him and the maid with whom the children have a good relationship, he simply fails to see any reason why their present status quo, as found by the Social Welfare Officer to be satisfactory, should be disturbed. It is also argued on his behalf that as he has suffered from the affair between the Mother and Mr. S and that it was the Mother who walked out of their family whereas he has remained behind to work hard to keep the children together, it would not be fair to allow the Mother to now come back to claim the children which may cause the emotional collapse of the Father which in turn will adversely affect the children. It is accepted that the only shortcoming of the Father is his lack of time to take care of the children which can however be resolved by taking the suggestion of the Social Welfare Report, i.e. for the Mother to have daily access to the children in the afternoon to look after them until the evening when the Father returns home from work. The Father says that this will solve the only problem with the children and in conclusion, he urges the Court to follow the recommendation of the Social Welfare Report to grant him custody of his children. 31. The Social Welfare Officer Mr. Lai has prepared 2 reports, the first one in March 1998 and an up-dated version in early October 1998, shortly before the hearing. In the 1st report, although it was revealed that the 2 younger children had expressed their preference for the Mother whilst the eldest daughter did not express any preference for either parents, the officer found the present arrangements for the children by the Father satisfactory, and that as he was uncertain as to the effect Mr. S might have on the children if he were to live with the Mother or whether the Mother would be able to find a job which would allow her to take care of the children at the same time, he therefore supported the present child care arrangement by the Father. In his further report, the officer accepted that although the Father did not spend much time at home during weekdays as he used to return home at about 11:00 p.m. and seldom took meals together with the children, he did keep them company on weekends and that their relationship was excellent. He further did not think that the Mother's child care plan was as good as she thought, that it was uncertain whether she could find a suitable home for the children, and that their living quality might deteriorate if the children were to move out of their Whampoa Garden flat and to rely on public assistance. He did not see any strong reason to remove the children from the Father's care and control. He also suggested in his 2nd report that if the children remain with the Father, the Mother could visit the children daily in the afternoon to help supervise them whilst the Father was at work. He therefore recommended daily access by the Mother. 32. At the hearing the Officer Mr. Lai maintains his recommendation as in his 2 reports, although he also agrees that if the Mother will indeed not work to devote all her time to the children, and if the Father can provide sufficient maintenance for her and the children, then it would be better for the children to be in the custody of the Mother as she can spend much more time with them than the Father. 33. Section 3(1) of the Guardian of Minors Ordinance, Cap. 13, provides that in relation to the custody or upbringing of a child, or children as in the present case, the Court shall regard the welfare of the children as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the children if, having regard to the age and understanding of the children and to the circumstances of the case, it is practicable to do so, and any material information including any report of the Social Welfare Department. 34. The word "welfare" is to be taken in a wide sense and apart from the matters which the Court shall give consideration to under the general principles referred to above, others such as the children's physical, emotional and educational needs, the likely effect on them if any change in their circumstances, their respective age, sex, background and sibling relationship, any harm they have suffered or are at risk of suffering, 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 their needs, are some of the relevant matters to which the Court may have regard. With these principles in mind, I shall now consider the evidence. 35. There is no dispute that the Mother was the primary carer of the children during the marriage and even after she started to work in 1993 up to the time when she left the Father in early 1997, nor is there any criticism of her child care method or ability during the marriage by the Father. In fact, although the Social Welfare Officer in his report recommended that custody should remain with the Father, it is his evidence that he has absolutely no doubt about the Mother's parental ability or her determination or commitment to devote her time and energy in caring for her children. 36. I have no difficulty finding the Mother to be a truthful witness who is genuinely concerned about her children's welfare. After overcoming the initial nervousness, she has gone on to give her evidence in a sensible, logical and determined manner without any hesitation or exaggeration. 37. She has demonstrated a good understanding of both the physical and emotional need of her children. She believes in more discipline and closer supervision of the children's daily activities and schoolwork, but at the same time treats them with patience and affection that despite having lived apart from them for almost 2 years, the children have remained very close and spontaneous to her and would go to her for advice or help over anything more often than to their father who lives with them. In fact even the Father has admitted that the children talk to their mother on the phone everyday. The Mother's reason for putting up with the Father's extramarital affair in 1993 for the sake of the children was genuinely heartfelt, and I accept her explanation for not taking the children with her when she left the Father because of uncertainty of her future and her desire not to risk disturbing the children's daily life and schooling as perfectly sensible and reasonable in the circumstances. 38. It is alleged on behalf of the Father that the Mother's present application for custody is motivated by her claim for the Whampoa Garden property and that she has placed her relationship with Mr. S above the interest of her children. I do not believe this is the case. She has throughout the proceedings stated very clearly that they cannot afford to keep the property and that she no longer wants to make any claim against it which she does not believe to be worth much. She admits that she has always wanted the Father to dispose of the property, not to get her share in the sale proceeds, but so that they can be relieved of their financial liabilities under it and to start fresh with their new life after their divorce. I do not find this unreasonable. 39. I also do not agree with the Father that the Mother would place her relationship with Mr. S above her children's interest. The Social Welfare Officer has already expressed his confidence unreservedly in her determination to do what is best for her children. Her actions so far have stood up to it very well. Despite the assault by the Father and the obvious breaking down of their marriage, she was willing to return to the Father's home to look after the children in early 1997 after having moved out earlier, and during the proceedings and despite having to work to support herself, she has continued to be actively involved in the children's daily care and their education including meeting with their school teachers regularly and frequent contact with the Social Welfare Officer over the children's welfare. She even volunteers not to allow Mr. S to live with the children if their custody is given to her so as to give the children time to adjust despite their apparent acceptance of her relationship with him. She has shown to be a caring and concerned parent who has always placed her children's interest at the foremost and I see no evidence to suggest otherwise in spite of her relationship with Mr. S. 40. I also have no doubt of the Father's love for his children, but the evidence reveals a very different character and attitude towards his children and his childcare method. Due to his very busy job, the Father obviously has very limited time for his children during weekdays, which is typical of most working fathers but perhaps more so in his case because of the nature of his job and the fact that he has to entertain his clients and sometimes even his subordinates late into each evening that in the past he never had dinners with his children and was seldom home until 11:00 p.m. or later, as evidenced by the Social Welfare Report and admitted by him. He says as he has now settled well in his new company and with improvement to his income and more assistants working for him, he is able to go home earlier and sometimes even to have dinner with his daughters. However the Social Welfare Officer is unable to verify this despite the fact that he had a meeting with the children shortly before the hearing, and I am not so sure, even if it is the case, whether he can consistently do so. He was at one time a successful branch manager of another insurance company during the marriage with many supporting staff working for him including the Mother, yet it did not allow him to go home earlier or to spend more time with his children. As pointed out by the Mother, the Father is in a business that requires frequent entertainments to build up clientele and there is always great pressure to get more clients and to keep the subordinates happy so that they would work harder for him. In fact it is the Father's evidence that very often he has had to pay the initial insurance premium on behalf of some of his clients in order to get their business which is very competitive indeed. It is therefore doubtful whether the Father will be able to give more time to his children during weekdays, and to do so regularly and consistently. My doubt is further compounded by his attitude on childcare. 41. The Social Welfare Officer, Mr. Lai has in his evidence described the Father's attitude on his childcare method as follows:-
42. The evidence before me clearly supports the officer's view. The Father certainly does not believe that his children need any more discipline or supervision than what they are getting at present. He appears to allow them quite a lot of freedom for their age. They or at least the elder children can go out to play without any adult supervision. They get to choose their own food and snacks at the supermarket. During his several overseas trip in the past year, he left the children at home by themselves without arranging for his maid or other adult to stay with the children until his return. He did not even inform the Mother of his trips, probably because of his animosity towards her, but the evidence is that whenever the children were in need of immediate attention or help whilst he was at work, he would simply just tell them to go to the maid or call their mother. He has never telephoned the Social Welfare Officer to discuss the children's welfare, as confirmed by the officer, and seldom attended the children's school meetings or functions. He has clearly given me an impression that he feels that as long as he is able to provide his children with a home and financial support, all their other needs can be properly met by the maid, and that if the children require any special or urgent need or attention, they can always go to their mother so that everything would be taken care of without his bother. This is clearly demonstrated when he went on business trips in the past leaving the children at home by themselves without arranging for his maid or any adult to stay with them in the belief that if they needed anything, they would go to their mother or his good friend Mr. Cheung. 43. I accept that the children, in particularly the 2 elder ones, are at an age that they do not require constant care and supervision, but they are certainly not mature enough to be left at home by themselves and to cook their own meals. It should have been quite apparent to the Father that during his absence and if the Mother was not informed of it, the children would be at risk if they require urgent attention but the Mother happens to be unavailable. 44. The Mother believes that the Father's hostility towards her has prevented him from recognising his daughters' needs, one of which is for their mother. His refusal to inform her of his overseas trips or to enlist her help to look after the children during his absence is one indication. His refusal to give her his home telephone number is another, although his reason for not disclosing the telephone number even to the children is to prevent their schoolmates from disturbing them in the evening, which I find to be non-sensical if true, but which I suspect may be in fact to prevent the Mother from calling his home or the children. 45. Another good indication is the incident when he removed the 3 children to Macau shortly after his assault of the Mother in the park in January 1997 and kept the children there for 3 days. His explanation that he was there looking for a suitable boarding school for the children after it was suggested by the eldest daughter that the children should learn to be more independent after the Mother's departure is both absurd and irrational and I find his action on that occasion wholly irresponsible. 46. The eldest daughter at that time was only slightly over the age of 10. All 3 children were up to then still under the primary care of their mother. I find it incredible that the eldest daughter would make such a suggestion to her father whilst her mother was still in the hospital, and even if it is true, and I do not think it is, I find the Father's action impulsive and irrational. I believe the Mother's evidence that the Father was in fact trying to use the children to threaten her and to force her to end her affair with Mr. S, which I find wholly irresponsible of him to use the children in this way, and as a result of which they missed their school for 3 days. 47. The evidence clearly supports the Mother's fear that the Father's animosity towards her has prevented him from recognising his children's needs for their mother. Given time such negative feelings towards his former wife may gradually fade, but my concern is that his deficiency as a parent may in fact be more serious in his general lack of understanding of his children's emotional needs and psychological development. 48. His failure to let even his own children know their home telephone number, whatever reason he may have, shows that he does not understand that talking on telephone with their friends is one normal development of the children's social skill, as pointed out by the Social Welfare Officer. Instead he provided the eldest daughter with a pager without realising that such a device to a young girl of 11 or 12 years old is inconvenient, useless and may even be embarrassing. His neglect to provide the children with a key to the front gate of their home is another example. His allowing the children to choose their own snacks in the supermarket runs the risk of them indulging in non-nutritious or junk food, whereas the stocking of instant noodles and canned food at home for the children's meals has rightly caused the Mother's concern about the children's diets and their general health. There could be all sort of reasons for children to be underweight or skinny, but certainly not eating the right food or enjoying a healthy or normal eating habit is one major factor, and in this case the children do not even have the privilege or enjoyment of sitting down together with their parent at the dinner table for meals every night except during weekends. 49. There are in fact other evidence which is in my view more revealing of the Father's lack of understanding of his daughters' needs. The Social Welfare Report has reported that the 8 years old youngest daughter has not been doing well at school and is in need of closer supervision of her studies. When the Father was asked at the hearing what he was going to do about the problem, his answer which I quote as follows is illuminating of his childcare attitude:-
50. The Mother does not think that the eldest daughter is really up to the task. I agree that it is normal for elder siblings to occasionally help out the younger siblings with their schoolwork but not when there is clear indication, as in this case, that a child is in need of constant adult supervision with her studies, such as from a parent or a private tutor, and certainly not from another child who is merely a few years older and has her own homework to tackle. This typifies the Father's attitude towards his children. 51. There is no more lucid indication of the Father's oversimplistic view of childcare method is when he revealed in his evidence that the children often do their homework in his bed instead of at the desk or table without realising what is wrong with it, and when he was asked about the menstruation of his 2 elder daughters, he replied that he only knew that the 2nd daughter has recently started her menstruation and that she has gone to her mother for guidance, but as for the eldest daughter, he did not know about her but would ask her afterwards, but that in any event he believes his daughters can always ask their mother or the maid for advice on this matter and he does not think there is any problem with it. 52. There are other criticisms of the Father's character which generated heated dispute at the hearing that require careful consideration, i.e. low sense of morality and use of violence. The Mother's allegation of the Father's low morality is based on his alleged insistence in her participating in his sexual activities with his then girlfriend Madam Z in 1993/94. The Father does not deny his affair with Madam Z but insists that there was no such group sex activities with the Mother as alleged. I however find his explanation that he invited Madam Z to join his birthday dinner with the Mother to show that their affair had already ended and that thereafter he allowed Madam Z to stay overnight at his home because she had too much to drink, to say the least incredible in the circumstances, if not downright ludicrous. It is certainly a most absurd way to demonstrate to one's wife of the end of an extramarital affair, especially when the evidence reveals that she was so upset about the affair that she became hysterical and torn up all his photos only shortly before. I simply find it difficult to accept the Father's explanation. 53. The Mother was understandably embarrassed to give details of such activities but I find her evidence convincing, in particularly the part when she revealed under cross-examination that at the time the youngest daughter was sharing the parties' bed but she was removed by the Father from the bed and placed on the carpet so that the 3 adults could have sex on the bed. 54. The Mother has however admitted that such activities ended in 1994 and there is no evidence that the Father has thereafter carried out such activities at home or that any of the children is aware of such activities. Above all there is no evidence, expressed or implicit, that the Father's preference of sexual activities has in any way affected the children, although given the fact that the children are daughters which may naturally give the Mother some concern, I do not think she is seriously saying that the children are at risk of sexual abuse by the Father. There is simply no basis to suggest that and I do not believe that this Father is that kind of person. 55. The other heatedly argued matter is the Father's use of violence on the Mother which may have adversely affected his parental character towards his daughters. The Father does not dispute his assault of the Mother in the park incident in January 1997 but insists that it was the first and only time that he has ever been violent to the Mother which was provoked by her affair with Mr. S and for which he regretted and had paid his penalty. A lot of questions had been put to him at the hearing, including myself, as to the event leading up to the assault, in particularly the circumstances of how he enlisted the help of the 2 men in the van to follow the Mother and Mr. S to their rendezvous. The Father's evidence that they were total strangers who happened to be there to help him for $700 at first appeared so far-fetched that it could not be believed. But whether it is true or not does not really matter to the crust of the incident and I do not believe that they were triad members or had any triad connection. What is relevant is that the Mother has admitted that the Father was never violent to her before, nor has he ever been violent to the children. 56. I accept that a man who is violent to his spouse may be prone to be violent or abusive to his children as well and that even if such violence has not been directed towards the children, it may nevertheless have some adversed effect on them if they were witness to such violence, thereby making that parent unsuitable to have custody. I however agree that the Father's assault of the Mother at the park was an isolated incident under highly emotional circumstances and out of his character. It was certainly a despicable and cowardly act which put his wife in hospital for 3 days and cannot be condoned, but I accept that the Father is not basically a violent person and that he has never been violent or abusive to his children, nor is there any evidence to suggest that the children have been adversely affected by his assault of the Mother. 57. There are however ample evidence to convince me that the Father simply does not have the time for his children or the proper understanding of his children's needs, in particularly emotional and academically. His physical care for the children may, according to Social Welfare Report, be adequate but with heavy reliance on his maid, and on those occasions when he was away on overseas trips, clearly inadequate. I accept that his overseas trips are not frequent, but they have clearly exposed his inadequacy. At present he has hardly any interaction with his children during weekdays due to his job, and I do not think he can simply make up the deficiency on weekends which would in any event be interrupted from time to time by his business trips or the Mother's access. Bringing up children is however much more than just providing physical care. With the children becoming teenagers, as the 2 elder children are, they are at the critical development stage in which they require less physical care but more parental advise, guidance and discipline in their emotional development, social skills and academic performance. I do not think it is just a coincidence that the children in this case go to their mother for advice and guidance much more often than their father because they are daughters, but also because emotionally they are closer to their mother and that their mother is readily available and willing to talk to them, while their father is simply not there for them. Even the Social Welfare Officer in his evidence agrees that if the Mother is able to sort out her financial situation and offers a suitable home for the children, he would recommend custody to her because she can give full time care to the children, better than the Father with the assistance of a maid. His only reservation is about her financial situation and her future relationship with Mr. S. 58. According to the Social Welfare Reports, the children share very good relationship with both parents despite their separation which reflects positively on both of them. The eldest daughter who has not expressed any preference for either parent, finds her father a humourous and good-tempered person whilst her mother a caring parent who is concerned about her studies. The 2nd child initially expressed her preference for the Mother, as did the youngest daughter, but later changed her preference. Neither of the 2 younger children have given any proper reason or basis for their preference and I do not think their preference in this case, one way or the other, is all that significant, suffice to say that they all have very good relationship with their parents and that they will be equally happy living with either parent, although it is clear that the youngest daughter apparently misses her mother more, probably due to her more tender age. 59. The Officer has expressed some concern over the eldest daughter's loyalty conflict and that she seems to have sided with her father about the criticism of his lack of time for the children. It is not surprising with these sorts of situation especially with the eldest daughter now fairly mature and has lived the past 2 years with the Father after the departure of the Mother. It could also be a case of her resisting further changes to her life, which is normal in children, and that the Father's present childcare arrangement has allowed her a certain degree of freedom which she fears may be lost or reduced if living with the Mother who believes in more discipline, but I do not believe that she or her siblings will become less happy if they are to live with their mother. 60. There are however allegations from the Father that as the Mother had during the marriage frequently brought Mr. S home to have sex which cause him to doubt that they would be able to provide a good role model to the children and that in any event the children do not like Mr. S and hence it would not be in their interest to live with Mr. S. Such allegations are obviously serious and require careful consideration. 61. The Father has said in his evidence that he became suspicious of the Mother's relationship with Mr. S in late 1996 and had therefore asked his maid to spy on the Mother, but it was only when he saw the Mother behaving intimately with Mr. S in the park in the incident in January 1997 that he discovered their affair. I believe that if the Mother did bring Mr. S home for sex during the marriage, the Father would have discovered it much earlier through his maid or the children. In fact the Father did subsequently concede at the hearing under cross-examination that he has no evidential basis to make such an allegation against the Mother, and I find his attack on the Mother or Mr. S of their ability to provide role model to the children unfounded and indeed quite hypocritical whilst he himself had had his own share of extramarital affairs during the marriage. 62. I also find the circumstances in which the children were said to have expressed negative feelings towards Mr. S in their drawings dubious and the Father's evidence on this ultimately unsatisfactory and unreliable. The Father's evidence is that it was on an occasion in early 1997 when he and the children were having tea in a restaurant with his good friend Mr. Cheung when it was Mr. Cheung, not him as" he was passive", who asked the children to express their feelings towards Mr. S in their drawings. When he was cross-examined on the details of the drawings, the Father then changed his evidence that the drawings were in fact made on 2 separate occasions but that it was his friend Mr. Cheung who asked the children to make the drawings on both occasions and he again stressed that he had nothing to do with it as he was passive. Furthermore, despite the fact that he says the drawings were made in early 1998, he had never found it necessary to tell the Social Welfare Officer of such drawings until the hearing when the Officer expressed his surprise to see them as it was all along his impression that the children have accepted Mr. S's relationship with their mother and get along quite well with him. The circumstances under which the drawings were made have given me cause to suspect that the children might have been influenced and I am inclined to accept the Social Welfare Officer's impression of the children's view towards Mr. S as more accurate. More importantly I believe that the Mother will place her children's interest over and above her relationship with Mr. S and that she will not allow it to interfere with the well-being of her children. 63. I am however more concerned about the future of the children's accommodation whichever their custody goes. There is no doubt that their present home at Whampoa Garden is spacious and comfortable and that they are extremely happy with it. They have settled down well in it and that it is close to their school. It is in a fairly safe environment and is much better than any of the children's previous homes. If custody goes to him, the Father proposes that the children shall continue reside in their present home and that with his present earnings, he believes he is able to maintain the property within his albeit fairly tight budget. The Mother does not believe he is able to do so. She does not think that his income will allow him to keep the property which will have to be sold soon and that it is inevitable that the children will have to move down from their present standard of living no matter which way their custody goes. It is therefore important to ascertain the Father's financial situation. 64. As an insurance agent the Father now earns his income wholly on commission without any fixed or basic salary. He is also entitled to a year end bonus. He estimates that he is able to earn more than $58,000 per month, an average based on his total income for the past 13 months from September 1997 when he first joined his present employer, up to September 1998 before the hearing, in the total amount of $735,452.06 which gives an average of $56,573.24 per month, according to the summary prepared on his behalf of his commissions received for that period. He has since been promoted to a branch manager and with the establishment of his clientele and more subordinates now working for him, the Father estimates that he will be able to earn more than $58,000 per month in the coming year and hence he should have no financial difficulty to continue with his present arrangement of the children. 65. A close examination of his summary of commission however reveals that the total sum of $735,452.06 has in fact included a one-off signing bonus of $209,000 paid to the Father for joining his new company which is not commission and should not have been included in the computation. The correct figure would give a lower total of $526,452 and an average of only $40,496.30 per month, much less than his claimed amount. 66. I accept that during the first few months after the Father joined his new employer, his commission was naturally lower as it took time for him to build up his clientele and that as from early 1998 his commission has improved substantially. However, except for 2 months in March and August, he was unable to get near his target monthly earning of $58,000 during the period, which is necessary for him to meet his present monthly expenditure. 67. The 2 major items of the Father's monthly expenditure are his mortgage installment of $25,000 for the Whampoa Garden flat and his credit card repayments of $13,500, totalling almost $40,000 per month. On the other hand, his other expenses such as utilities charges and the children's expenses are comparatively minor, in fact the children's expenses such as clothings, books, lunches, medical, etc at $1,100 in total appear to be on the low side for 3 fast growing children. 68. An item of the Father's expenses which has caused me considerable concern is his credit card repayments. From the table of his credit card debts prepared by him, it can be seen that the Father owes some 8 credit card companies in the total sum of $257,000 as at August 1998, with a monthly repayment of more than $13,000, and this is only the minimum repayment or just interest payment which at one time when interest rates were higher was as much as $14,500 to $15,000 per month. What is more worrying is that despite the Father's allegation that his income has been gradually improving since early this year, his debts owed to these credit card companies have in fact increased over the past year in that in October 1997 when he first joined his present company, the debts were a little over $150,000, yet less than 1 year later, in August 1998 his total debts have ballooned to more than $257,000, despite the fact that he had received a signing bonus of $209,000. 69. As I have already commented above, the Father's personal expenses do not appear to be excessive or extravagant, yet he has run up such substantial credit card expenses that I cannot help to agree with the Mother that in order for him to earn the level of commission he says he is now earning, he has to entertain extensively with his clients and his subordinates and as he has readily admitted, sometimes to even pay the initial premium for some of his clients to get their business. In other words, he has to expend a substantial part of his income every month on his business in order to earn more income in the next month. 70. It is clear from the evidence that the Father does not have the capital to pay off these credit card debts. He does not have much savings and his only other asset, a property in China, is not worth much and has a mortgage. He has no other means to pay off these debts but to continue making the minimum repayments every month for as long as possible in the hope that his income situation may dramatically improve in the near future. But with the present economic situation, what are the chances that there will be more people willing to spend their money on taking out insurance policies or topping up their existing policies? In other words, I cannot say that I am as optimistic as the Father about his future income. 71. The Social Welfare Officer Mr. Lai in his 2nd Report appeared to have placed a lot of importance on the children being happy with their present living environment and was concerned that if they moved out from their present home as proposed by the Mother and to rely on Social Security Assistance, their living quality might deteriorate. He concluded that as long as the Father could afford living in the present home and living a maid as well as maintaining a very close relationship with the children, he did not see that there was any strong reason to remove the children from the care of their father. 72. At the hearing Mr. Lai qualified his said conclusion by admitting that he was not so sure about the Father's income situation and agreed that if he cannot afford to keep his present home and that if the Mother is able to obtain sufficient financial assistance from the Father and has a suitable home for the children, then he would agree that the children would be better under the care of the Mother as she is able to give more time to the children. He agrees he has reservation about the Father's financial situation. 73. The Mother also believes that the Father has ulterior motive to move the children to the Whampoa Garden flat. They only moved into this property in March 1998. Prior to that the property was left vacant after the last tenant had moved out and that it could not be let out due to the market situation. According to the Father's 3rd Affirmation and the evidence before me, he had at one time actively invested in the property market, normally buying and selling quickly, using the profits and mortgage to finance the next purchase. They were all short-term investments. To wit: the 1st property at Flat D, 4/F, 162 Tung Lo Wan Road was sold 6 months after its purchase, whilst the 2nd property at Flat F, 13/F, Block 1, Whampoa Garden, Site 7 was purchased in July 1993 and sold 7 months later, in February 1994. 74. The present home of the Father at Whampoa Garden was purchased in February 1994 after the sale of the 2nd property. The purchase price was $3.82 million with a mortgage of $2.6 million. It was like those properties purchased before supposed to be just an investment. It was however let out for rental income which was used to meet the monthly mortgage instalment. As aforesaid, it was only after the tenant had left and as the Father was unable to find another tenant due to the crash of the property market that he decided to move into it with the children. This has obviously placed a heave burden on the Father as the monthly mortgage instalment has eaten heavily into his income. Given the past practice of the Father as to his property investment and his present tight financial situation, I am not surprised that the Mother suspects that the Father deliberately moved into this property in order to strengthen his custody claim and that it was never his long term plan to live in this property. Once the present proceedings are over or when the property market starts to pick up, it is quite possible that he will sell the property and move children to another place. 75. I am satisfied that in the present circumstances of the case the Father cannot afford to keep the Whampoa Garden property or to maintain his present standard of living. I don't believe that he is able to earn sufficient commission each month to meet his stated monthly expenses of $58,000 which is in fact already kept at the minimum and which, with 3 growing children, will only go up each year. The Father may have so far been able to get by with such a tight budget, as suggested by the Mother, by relying on borrowing from credit card companies and then to meet their minimum monthly repayments, but it is certainly not a healthy situation and is likely to continue to put financial pressure on the Father which may in turn affect his care and provision for his children. In fact the Mother believes it has already been affecting the children as she has complained about his failure to pay various utilities charges or sufficient household money to his maid for the children thereby causing them to become undernourished and thin, and that in order to cut down on expenses, he has not allowed them to use air-conditioning even in the hottest summer months. 76. If the Whampoa Garden property is to be sold, given the present market situation, there may not be much profit out of it as it is estimated to be worth about $3.2 million but has an outstanding mortgage and various legal charges totalling about $3 million. The sale however would relieve the parties of almost all of their present financial burden and liabilities and, as suggested by the Mother, if custody goes to her, the Father will have no further need of his maid and he should have sufficient income to provide reasonable maintenance for her and the children to enable her to rent a suitable home in the Hunghom neighbourhood. 77. I find this proposal attractive and in the circumstances the most reasonable and appropriate solution to the parties' dispute. I am convinced that the Mother, in terms of time and parental ability, is in a much better position than the Father to take care of the needs and welfare of the children, as was the case during the marriage. It is unfortunate that the children will have to move home again but it is in my view inevitable and the sooner they get to settle down in their new environment, albeit not as spacious or comfortable as before, the better for them and as they are quite used to moving home in the past, I do not think another move will disturb them too much. The important thing is that it is a change for the better in terms of the kind of care and guidance they will receive from their mother. 78. For the Father, this will mean that he will be relieved of his financial burden and can focus on his career which is important at this difficult time. With a monthly income of about $40,000 or more, he should have no difficulty providing $15,000 per month as maintenance for the Mother and the children which I find to be both reasonable and necessary for the 4 of them, and still have sufficient fund to accommodate and support himself. After they each have settled down in their respective new accommodation, if it becomes necessary, they can always come back to Court to vary or adjust the level of maintenance. I know my decision departs from the recommendation of the Social Welfare Reports, but having heard Mr. Lai's evidence at the hearing, I think he would have agreed, given the facts and evidence that have evolved from the hearing, that it will indeed be in the best interest of the children to be under the custody care and control of the Mother. I do not agree with his suggestion that the Father's problem in childcare can be resolved by asking the Mother to look after the children in the afternoon. I do not think it is practical or fair to the Mother who has to work at the same time to support herself if custody goes to the Father. 79. In conclusion, I am satisfied that, having heard the parties and the Social Welfare Officer and having considered all the facts and evidence of the case, the Mother should be given the custody care and control of all 3 children with reasonable access which should include staying access over some weekends and the children's major school holidays to the Father. I do not agree with the Mother that she should move into the Whampoa Garden flat with the children until it is sold. I accept that it may take sometime to sell the property, but it is impractical and inconvenient to both parties to move in and out over such a short transition and in any event I am doubtful that the Father can financially afford such an arrangement as it means he would have to fund his own accommodation while still having to pay for the Whampoa Garden property. The best solution would be for me to order that the property be sold as soon as possible and with the discharge of the mortgage and legal charges over the property, the Father should start paying the Mother $15,000 as maintenance for her and the children who shall then move to live with her and under her care and upbringing. As the Mother does not wish to make further claims against the Father, he is to keep the balance of the sale proceeds if there is any, and the property in China. Lastly, in view of the nature of the dispute before me and the fact that both parties are legally aided, I think there should be no order as to costs between the parties other than Legal Aid Taxation. The summary of my Order is therefore as follows:-
Representation: Miss. B. Chan of Director of Legal Aid for the Petitioner. Mr. K.H.Ting of M/S S.K.Wong & Lee for the Respondent. |