L v. L

HCMC000050/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

NO. 50 OF 1969

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Coram: Briggs J. in Court

Date of Judgment: 28th November, 1970.

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JUDGMENT

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1. The parties were married on March 15th 1960. There are two children of the marriage: Lee Chi Keung, a son, now aged nine and a half years: and Lee Wai Yin, a daughter, now aged seven and a half years.

2. The petitioner filed a petition for a divorce from the Respondent on the ground of his cruelty on April 28th, 1969. The Respondent filed an answer in which he cross petitioned for a divorce on the ground of desertion on June 28th, 1969. Both the Petitioner and the Respondent asked for an order for the custody of the two children. In addition the Petitioner asked for an order for maintenance for herself and, if she were granted custody of the children, for maintenance for the children in addition.

3. The case came on for trial on May 2nd, 1970 when Counsel for the Respondent asked leave to withdraw the answer and cross petition of the Respondent except and in so far as the prayer for the custody of the children was concerned. Counsel also asked that the matter of custody and the question of maintenance be adjourned to a later date to be heard in chambers. The question of maintenance is closely bound up with the custody of the children and the Respondent wished to be heard on that issue also. Counsel for the Petitioner did not object, so leave was given to give effect to the wishes of the Respondent.

4. The matter came before me in chambers on November 26th, 1970. Various affidavits were placed before me and the parties gave evidence in person and were cross-examined. I also saw the two children briefly-in the presence only of an interpreter. Upon consideration I decided to deliver my judgment in open Court.

5. The two children are at present living with the Respondent and are being cared for by him and by his mother.

6. Because of the cruelty of the Respondent the Petitioner left the matrimonial home in April, 1962 leaving the elder child who was then just over one year old with the Respondent and his mother.

7. She resumed cohabitation in November 1962 but left again in July 1964. On this occasion she took the younger child, who was then but a few months old, with her. She again returned to the Respondent in November 1964. She finally left the Respondent in April 1965. On this occasion the younger child accompanied her but was returned to the Respondent three days later. Since then the two children have remained with the Respondent and have been brought up by him.

8. I saw the children who are certainly a credit to those who have brought them up. Dispite the novelty of the situation, when they visited me they were not in the least bit shy and told me they were happy in their home. They both go to school and seem to be a lively cheerful pair of youngsters of whom any parent would be proud.

9. When deciding upon the custody of an infant, the Court must regard the welfare of that infant as the first and paramount consideration. However, attention should always be paid to the wishes of an unimpeachable parent. And there are other matters to be considered also. Each case depends upon its own facts and the Court has a wide discretion, but an order for custody must not be used as a whip to beat the parent against whom a decree of divorce has been pronounced. I avoid the use of the term "guilty spouse" because it is my experience of this branch of the law that marriages seldom fail because of the conduct of one of the parties only. And I think it is time that the use of such a term ceased.

10. Counsel for the Respondent kindly drew my attention to two recent cases which are relevant to this issue namely, what weight the Court should give to the fact that the party who is seeking an order for custody is the party against whom a decree of divorce has been pronounced. The cases are Porter⁽¹⁾ and Tumath⁽²⁾. At page 115 of the latter case Salmon L.J. said "this court has recently pointed out that a spouse does not now prejudice his or her chances in future custody or maintenance proceedings by not pursuing a prayer at the hearing of a divorce case". He was referring specifically to marriages which have irretrievably broken down. In the present case the marriage has irretrievably broken down. In the divorce proceedings the Respondent abandoned his answer and cross petition. He is not to be prejudiced by this. The fact that a divorce was pronounced against him is irrelevant to these proceedings.

11. The question of custody is always difficult but in this case I have no hesitation at all in awarding the custody of the two children to the Respondent. They have always lived with the Respondent. And there is no evidence that the Respondent has been other than a loving parent to them. No allegation has been made to the contrary except one with which I shall deal later in this judgment. I heard and saw the Respondent in the witness box and the manner in which he gave his evidence impressed me. He did not try to minimise his part in the incidents on which the petition of the Petitioner was founded and succeeded.

12. The Respondent is a man some ten years older than his wife. He holds a responsible position and is living in accommodation suitable for the bringing up of the children. Both the children go to school and they told me that they were happy at home.

13. If an order were to be made granting custody to the Petitioner it would have the effect of disrupting the children's lives.

14. The Petitioner is a working woman but she lives with other members of her family so there would be others able to see to the needs of the children when she was away. However from her description of that accommodation it is obviously less suitable so far as the children are concerned than where they are now living. It is obvious that the premises are crowded, the Petitioner living as she does with others in a verandah cubicle of a Chinese tenement house in Baker Street, Hung Hom.

15. So far as the interests of the children is concerned therefore I am satisfied that they should remain where they are.

16. The Petitioner succeeded in the divorce proceedings and her counsel urged that as she was an unimpeachable parent - as the phrase is - she should be granted custody. I had the advantage of seeing and hearing the Petitioner in the witness box on two occasions. I have no doubt that she considers herself very aggrieved by the conduct of her husband towards her. This I can understand.

17. In September 1964 she instituted proceedings against the Respondent in the South Kowloon Magistrate's Court for an order for separation and maintenance for herself and custody of the children. The grounds of that application were the persistent cruelty of the Respondent. This application was not proceeded with.

18. According to the Petitioner the conduct of the Respondent did not improve. However she did not renew her application. Instead she left the Respondent in April 1965 and went to live with her family. Save for a period of three days she left the children with the Respondent. It was only when the petition was filed, in April 1969, namely five years later, that a request for custody was made. During the whole of that time she allowed the children to be cared for by the Respondent.

19. There was evidence that she visited the matrimonial house on several occasions. There is a conflict between the parties as to the number of times she paid visits and of what occured at those visits. I will say at once that I prefer the evidence of the Respondent to that of the Petitioner on this aspect of the case. He did not seek to hide anything. And I have formed the impression that the Petitioner exaggerated her evidence. Much for example was made of the undoubted fact that the Respondent was convicted of assaulting her and fined $80 and bound over. This happened in 1962 when the elder child was one year old and the younger not yet born. Though this eight year old assault was relevant to the petition itself, it can have very little, if any, relevance to these matters now before me.

20. Again the Petitioner said that the Respondent moved his dwelling house in order to prevent her from seeing the children. This I do not believe. The Respondent is in the public service and lives in Government quarters. I was also told that the Petitioner left the children with the Respondent to show him how difficult it is for a man to look after children without a wife. This of course is foolish: the children were looked after by the mother of the Respondent as well as by the Respondent himself and the Petitioner well knew that this was so. And having seen the children I can congratulate them on the way in which their task has been done.

21. The Petitioner said that she visited the children on July 5th, 1970 that is, after the decree nisi had been pronounced. By this time the terms of access to the children had been arranged through the good offices of the solicitors to the parties. She said she saw bruises on the legs of the younger child as if she had been caned. She protested to the Respondent's mother. The Respondent was not at home. On July 12th she again visited the matrimonial home, the Respondent and she had a quarrel and he bruised her on her arm with a pair of pliers. She immediately made a report to the police. She did not report the fact that her daughter had apparently been caned. But she did report what appears to have been a minor assault on herself.

22. No mention of the bruises on the daughter was made in her affidavit in which she dealt with the bruise on her arm.

23. Having seen and heard the Petitioner I am of the opinion that she has strong feelings of aggression towards the Respondent. And is prepared as it were to make use of the children in order to further her aggression. I should perhaps also mention that the proposals for the upbringing of the children and then education as stated by the Petitioner were very vague and unformed.

24. Counsel for the Petitioner suggested in his closing address that the children should be separated, custody of the elder, the boy, being granted to the Respondent and of the younger, the girl to the Petitioner. Neither the Petitioner nor the Respondent said that they wished to have such an order made. And I am very certain that such an order would not be in the best interests of the children themselves.

25. The Petitioner asked for maintenance. She is earning her own living and has been supporting herself. The Respondent is a man of modest means and will have the burden of the responsibility and expense of bringing up and educating the children. I think the correct course is to make a norminal order of $1 per year maintenance in favour of the Petitioner.

26. The Respondent is to have the custody of the two children of the marriage.

27. I am satisfied with the proposals made for the upbringing and education of the children.

28. The Petitioner is to have access to the children at reasonable times to be agreed between the parties.

29. Maintenance $1 per year in favour of the Petitioner.

30. The costs of the Petitioner are to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for Counsel. The Respondent's costs of these proceedings are to be paid by the Petitioner.

Representation:

Suffiad (Russ & Co.) for Petitioner

Mills-Owens (Helen A. Lo & Co.) for Respondent

Judgment read in Court

(1) 1969 3 A.E.R. 640

(2) 1970 1 A.E.R. 111