Ian Dine Boulter v. Laura Boulter and Another

HCMC000036/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

ACTION NO. 36 OF 1977

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Coram: Li, J. (In Chambers)

Date of Judgment: 9th September 1977 at 4.20 p.m.

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DECISION

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1. There are two cross-summonses: the first is an application by the Petitioner to take the child, the only child of the marriage, Eve Boulter, out of jurisdiction permanently; the second is an application on the part of the Respondent for a variation of a consent order made before Judge Liu on the 5th January 1977 to the effect that the order be varied in the following terms:-

2. At the outset of the hearing, learned counsel for the Respondent applied that the second summons be heard first and I acceded to this application. Although these two summonses should be heard separately, the facts are common to both. Chronologically they are as follows. On the 22nd May 1976 a decree nisi was given in favour of the Respondent which was made absolute on the 11th January 1977. On the 5th January 1977 a consent order was made before Judge Liu granting custody of the child Eve Boulter to the Petitioner, subject to a right of access every week to the Respondent and also the right of a staying access to the Respondent, three days for the Christmas holiday and two weeks for the summer holidays. There is a further provision in the order that if Eve so decides at any stage afterwards, there should be a transfer of custody from the Petitioner to the Respondent.

3. Sometime in January two attempts of access were made by the Respondent. Both attempts may be described as abortive. This was due to the fact that Eve refused to go out with the Respondent. There was no attempt to enforce the staying access in summer although there was a provision in the consent order that should there be any disagreement there was liberty to apply. Sometime in the latter part of August, the Petitioner was transferred to Singapore because his head office decided to remove the Petitioner's office to Singapore as headquarters. The Petitioner had no option but to go. His solicitors wrote to the solicitors of the Respondent trying to obtain some arrangement so as to take the child out of jurisdiction. I have read these letters - exhibits LB-4 and LB-5 in the Respondent's affidavit. It appears that at that stage there was no indication that the Respondent objected to the child being taken out of jurisdiction. The only question was that there should be reasonable arrangement for access made and agreed upon between the parties.

4. Now the Respondent applies to vary the consent order that there be joint custody. The basis of the application for joint custody, a Social Welfare officer's report and a psychologist's report may be summarised that the Respondent felt, as a result of the two abortive attempts of access to Eve Boulter, that the Petitioner had been influencing the child to refuse to see her mother. In any event, in the mind of the Respondent, if I understand her correctly from her affidavit, it was so unnatural for a child to refuse seeing her mother that obviously some pressure had been brought to bear upon the child to express such refusal. There was also the incident that occurred on the 1st September when the Petitioner took the daughter Eve Boulter to see her mother in her place of work. It was alleged that there was a quarrel and a scene and the Petitioner and the child left the Respondent in a rather unhappy atmosphere.

5. Having read and considered all the affidavits before me and having heard learned counsel for both parties, I asked to talk to the child Eve Boulter. From what I gather from the child it appears to me that she, rightly or wrongly, has a sense of grievance against her mother for having left her without telling her the reason. This might be right or might be wrong. Even if it is wrong it is not, to my mind, a psychological or social welfare problem. I see no jurisdiction in asking for a psychologist's report, or indeed for a Social Welfare officer's report, she is not a problem child. There is no justification to treat her as such. She may be rather vindicative - for resenting her mother leaving her. That impression unfortunately is very deep-seated. It is unfortunate but the welfare and interest of the child, particularly her mental attitude, must be taken into consideration.

6. This case is not a proper one for joint custody either. Joint custody will create a lot of future problems. Acting on the principle of Clissold v. Clissold⁽¹⁾ at page 220, I follow the decision of the learned judge and say that this is certainly not a proper case to make an order of joint custody, particularly when the Petitioner, one of the parents, objects to this application. For these reasons the first application by the Respondent must be dismissed.

7. I now come to consider the second application, the application by the Petitioner to take the child permanently out of jurisdiction. I find that in this instance the move from Hong Kong to Singapore is not the Petitioner's own choice. He is employed by an international concern which, as a matter of company policy, has decided to remove the headquarters from Hong Kong to Singapore. The Petitioner has no option but to got there unless he gives up his job. The Petitioner has already arranged a good school in Singapore for the child. The school term will start on the 16th September. This is important to the child because she should attend her school, and she has already cancelled her place at the Island School in Hong Kong, in which she had been studying for the past year.

8. In matters like this, the interest and welfare of the child are paramount to the feelings of the parents. Applying the principle in the case of P. v. P.⁽²⁾ at page 659, I can only consider what is best for the child. I adopt the dictum that has been pronounced by Lord Justice Winn at page 662:-

"I am very firmly of opinion that the child's happiness is directly dependent not only on the health and happiness of the mother but on her freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with the stepfather and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take the child to New Zealand which I think quite clearly his welfare dictates. There is implicit, of course, and it must be expressly given, the customary undertaking to bring the child back into the jurisdiction if ordered so to do by the court. I would therefore allow this appeal."

In this instance the welfare of the child is, so far, that she has stayed happily with her father and stepmother and she has expressed the desire to go with her father to Singapore; she has a good school to go to there. All these are of course without the slightest reflection on her mother, the Respondent.

9. I understand clearly and appreciate sympathetically the fact that if I were to allow this child to go out of jurisdiction it would mean that I would simultaneously deprive the right of access by the Respondent. At least that would be the practical result. However, Singapore is a civilised country having a similar legal system as in this part of the world and I am certain that there is no necessity for this court to supervise the child any further, provided she is living within the jurisdiction of a court of a civilised country. I would have been inclined to grant leave subject to certain right of access. But I can see the practical difficulties - not so much that the Petitioner would refuse to honour whatever order or undertaking that is going to be made. Having spoken to the child and having observed her and found that she is so adamant at the moment in no seeing her mother, I do not see any practical reason that she should be forced to come back to Hong Kong from time to time just to satisfy the previous consent order in respect of the right of access to the Respondent. It may well be that when she grows older she can see reasons better and she will come back to her mother and they will be friends again. For the last five years she felt bitter over the issue and refused to see her mother. It would be wrong of any person to force her, however unwillingly, to come back and join her mother even periodically. For these reasons I would grant leave to the application by the Petitioner and make an order in terms without imposing any condition except that there should be a customary undertaking to bring the child back into the jurisdiction if so ordered by the court and that the Respondent be given the right of access to see the child in Singapore if she so wishes. This would be at her risk of involving expenses for nothing if the child refused to see her in Singapore. If, in future, any difficulty arises, the Respondent will have liberty to apply to this court.

Representation:

A. Allman-Brown (Hastings & Co.) for Petitioner

W. Stone (Helen A. Lo & Co.) for Respondent

(1) Solicitors' Journal, 1974.

(2) All England Law Reports, 1970, Vol.3.