Tammy Mie Tze Chambers v. Peter Chambers

HCMP000115/1976

IN THE HIGH COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 115 OF 1976

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Coram: Trainor J. (in Chambers)

Date of Judgment: 22nd April, 1976.

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JUDGMENT

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1. This application comes before me by way of an originating summons under the Guardianship of Minors Ordinance. It is one of those tragic cases where a small child aged about six years is being sought by each of its parents who are no longer living together. The applicant for guardianship is the mother of the child. The application is opposed by the child's father. The child in question is a little girl.

2. I have read the affidavits filed by the parties in this case and I have heard the argument of counsel who appeared on behalf of the plaintiff, and I have heard the argument presented very clearly, lucidly and competently by the father of the child. I must say this and I do so without any hesitation that were it solely a matter of deciding between which of the two parties is the more pleasant person, I would without any hesitation decide this case in favour of the girl's father. I am not satisfied indeed that the affidavits of the plaintiff are completely truthful or reliable.

3. The defendant in opposing the application has exhibited letters which were received by the plaintiff. They are clearly from men and to put it at the lowest, there is a suggestion of intimacy between the writers and the plaintiff that is beyond the norm that one would expect between an attractive woman like the plaintiff and men who are strangers to her or casual acquaintances. Be that as it may, my primary consideration in this case must be the welfare of the child. Whatever views I may have of the plaintiff, I am satisfied that she has a very considerable love and affection for the child. So far as the father is concerned I am satisfied that he too has very considerable love and affection for his daughter, Deborah. But I cannot forget that this is a small girl of six years who has spent a considerable part of the last two years almost exclusively with her mother and her grandparents save for those times when she was visiting her father.

4. I must have in mind that there is available to her a permanent home with an atmosphere of security, that is a home with her mother and in which during the mother's absence at work there is a grandmother or a grandfather to look after her. On the other hand, the defendant is at the present moment living under the normal circumstances of a member of Her Majesty's Forces. He has done everything he can for this child but it inevitably means that a baby-sitter has to be employed to look after her. Granted that the defendant has gone to extreme pains to obtain a person who is qualified to act as such but, as Miss Power has argued, a baby-sitter is scant compensation for a mother's presence and love.

5. Another matter is that in the near future the defendant will be returning to England. He will do so either in the Army, or perhaps he will retire from the Army in February next. If he remains in the Army the circumstances for the child would be much the same as they are now. Were he to retire it means that he would have to find first of all a house in which to live. He is and has been for a long time on the waiting list for a house from the council of Nottingham but there is no assurance that he will get such a house as soon as he returns. But even if he were to obtain a council house he still has to find employment and employment would, of necessity, take him away from the home and at least during school holidays it would present the difficulty to have his daughter looked after. It would involve a baby-sitter or some neighbour or friend to look after her. The defendant said that the child could live with or be looked after by his father and mother but I doubt, having regard to the uncontradicted part of the plaintiff's affirmation in which she dealt with life when she lived in Nottingham with the defendant, if satisfactory arrangements could be made for Deborah in Nottingham should the defendant retire to live there. It would appear that the relations between the defendant and his parents were not too cordial.

6. In the circumstances and with regret, I find for the plaintiff in this application. I order that the minor be made a ward of Court, that the custody, care and control of the said minor be committed to her mother, the plaintiff. By consent: defendant to have access to the minor at all reasonable times and she shall spend Saturdays, Sundays and public holidays with him unless he indicates to the contrary; the minor shall be educated at the Victoria Junior School if she will be accepted there, if not at the English section of the Rosary Hill School.

7. The defendant shall pay $700 per month for the maintenance of the minor. Costs to the plaintiff with certificate for counsel.

Representation:

Miss M. Kao (Hasting & Co.) for the plaintiff.

Defendant in person.