Lip Lai-ming v. Lai Siu-hung

Case No.DCMP 401/1979

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCMP000401/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 401 OF 1979

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	IN THE MATTER of LAI Kin-fung an infant
	and
	IN THE MATTER of Guardianship of Minors Ordinance, Cap.3 of Laws of Hong Kong

Between:
	LIP Lai-ming suing by her next friend CHAN Sim-fong	Applicant
	and
	LAI Siu-hung	Respondent

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Coram: B.T. Caird, D.J. in Court.

Date of Judgment: 3rd April, 1980

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JUDGMENT

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1. I found this a particularly tragic and distressing case. We have two parents and two families who are basically decent responsible people finding themselves in a position of having to argue over the custody of a child.

2. The background is that the applicant and the respondent co-habited together after a banquet given to celebrate their intention to do so. They lived as man and wife, and thought of each other as such, in fact during the course of the hearing there was reference by each party to the mother of the other party as being that party's mother-in-law. There was reference to the applicant wanting a divorce. However, the crux of the matter is that since their co-habitation is not registered, the issue of their relationship, LAI Kin-fung, was illigitimate.

3. This means that the provisions of section 10 sub-section (1) of The Guardianship of Minors Ordinance Cap. 13 applies. This reads as follows:

"The Court may on the application of either of the parents of a minor who may apply without next friend make such order regarding (a) the custody of the minor; and (2) the right of access to the minor or either of his parents as the Court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents."

4. The three important words "welfare", "conduct" and "wishes" was submitted to me by both parties as being of equal importance.

5. Dealing with each of these, in reverse order, first the wishes of the parents. In this case their wishes are diametically opposed to each other and cancel each other out. This is in relation to custody. However, I was pleased that the parties acting responsibly agreed what access should be ordered, whatever order I made as to custody. This was agreed at 7 p.m. on Saturday to 6 p.m. on Sunday of each and every week. The next criteria is that of conduct. It was submitted to me that conduct in this con-text is not the parents' conduct towards each other but the conduct towards the child. I think this is too narrow a construction and in my opinion conduct includes both the conduct of the parents towards the child and their conduct towards each other if this in any way affects the welfare of the child. In determining the case I have looked at the whole of the evidence of both parties, and I will be dealing with some aspects later, and have treated the matter as being one of the exercise of my discretion. Both parties work and each of them is a similar in standard of accommodation and offer willing service of their respective mothers to attend physically to the welfare and the care of the child LAI Kin-fung.

6. At first blush this look like a dispute between respective moterhs-in-law but after hearing both the applicant and respondent I am satisfied that both parties genuinely seek custody. I deal now with some relevant dates:

	(a)	The child LAI Kin-fung was born on the 13th of February. 1977, and is now just short of 3 years and 2 months of age;
	(b)	I accept that the applicant's mother physically looked after the child at her home since the 13th March, 1977. The applicant continued to cohabit with the respondent at his parents' home.
	(c)	The respondent went to Castle Peak Hospital in November, 1978.
	(d)	Somewhere about mid-May or June of 1979 the child left the applicant's home to reside with the respondent and his family and stayed there up to the present time, a period of 10-11 months.

7. Both parents gave evidence as did their mothers. There are a number of conflicts in testimony which as the hearing progressed were shown to be more apparent than real. The Court also has the benefit of a social investigation report.

8. The dispute had its genesis in an accident sustained by the respondent at work, when he received a severe electric shock, which ultimately led to his being admitted to Castle Peak Hospital. The applicant deposed in her affirmation that the respondent "assaulted me by strangling me". However her evidence was somewhat more muted, as she stated he attempted to strangle her. The respondent's mother with maternal loyalty denied this. However she demonstrated how the parties were standing when she entered the room upon hearing the applicant shout and I formed the opinion that the applicant may well have thought that the respondent was going to exert force to her neck. The respondent with patent honesty said that he cannot remember the incident. Of course any assault was completely out of character and may be attributed to the mentally disturbed condition the respondent was in at that time due to his electric shock.

9. During his period in Castle peak the applicant visited the respondent on several occasions. She claimed he did not recognize her and as a combined effect of the alleged assault, this failure to recognize him, together with suspicion that he was having an affair with another woman she lost all affection for him and left the matrimonial home sometime in December, of 1978. She has consistently refused to return to cohabitation whereas the respondent has consistently sought to resume cohabitation. I believe the applicant when she complained of being frightened by the respondent and that this in turn, coupled with the matters previously dealt with, led to her loss of affection.

10. However the respondent's illness was not due to any culpability on his part. It is tragic that the accident sustained by him led to such horrendous consequences, it precipitated the loss of his wife and this present application in addition to his being incorperated in Castle Peak. A medical report was tendered by agreement to show that with medication respondent "is of sound mind and capable of child care". I accept that evidence and determine there is nothing in the respondent's conduct when mentally disturbed, or after his recovery, arising out of his having had schizophrenia which could probably be held against him. In fact the social investigation report submitted was accepted by the respective parties' legal advisors. However Mr. Lok for the respondent had certain reservations about a matter raised in the first paragraph on page 2. Mr. Wong, and I think properly did not see fit to cross-examine on this. Accordingly I completely disregard this hearsay allegation.

11. There were many factors for me to consider and I list the most important ones hereunder:

	(1)	Living conditions - I accept that the accommodation offered by the applicant is slightly larger than that enjoyed by the respondent. Each flat is occupied by 7 persons and accordingly the accommodation factor is slightly in the applicant's favour.
	(2)	Time available to spend at home with LAI Kin-fung. The applicant returns home from work at approximately 7 p.m. whereas the respondent arrives home at approximately 6 p.m. Each party has Sundays off. Accordingly this factor is weighing slightly in favour of the respondent.
	(3)	Earnings. The applicant claims in her affidavit to earn $2,000 per month, the respondent in evidence claimed $1,500 per month. However I am satisfied that each earns sufficient to materially look after LAI Kin-fung, in view of the fact that each are living communally with their respective families.
	(4)	Education. The applicant has brothers and sisters as does the respondent. The applicant's brothers and sisters are at middle school and was stated in evidence by the maternal grandmother Madam CHAN Sin-fung that help from family members with housework would be available, also help in looking after the child. Madam Chan told me that a large portion of the applicant's pay is put aside for future educational needs of the child. On the other hand the respondent claims to be able to finance his son's education right up to university stage. I accept the evidence of both parties in this regard and believe the scales here to be evenly weighed.
	(5)	The effect of "re-marriage" by either party. The applicant is personable and considerable emphasis was made by Mr. Lok on her prospects of "re-marriage". The gist of this argument was that if this eventually were to occur there could be a detrimental effect on the child because of the step-father relationship. However the respondent is still a young man and I believe that he may also face the prospect of "re-marriage" and find again the scales are in balance.
	(6)	The grandparents particularly the grandmothers. This is a most important factor. Madam Chan the maternal grandmother is aged 44 and has looked after the child in the past. I find this occurred over a period of 2 years and 2 months approximately. Madam CHENG Kam-mui is aged 52. She is the paternal grandmother and looks after the child at the present time and has done so since approximately Mid-May or June of 1979. The affection shown by Kin-fung to his maternal grandmother after a length of six months absence as noted in the investigation report was of interest. I carefully observed both grandmothers and thought from my observation of them, and my attention to their evidence, in the context of the remainder of the evidence, that the maternal grandmother is more suited to act as the surrogate parent. I do not accept the paternal mother's evidence when she in contradiction of her son claims to have obtained custody of the child almost two years ago, a year earlier than came out of the evidence of the other witnesses. I endeavoured to assess the effect on the child of living with each grandmother as alternatives and have come to the view that the maternal grandmother would be better for his welfare. Age of course is just one factor here.
	(7)	The most important factor in favour of the respondent is the need to weigh the possible bad effects of a change in custody upon the welfare of the child. This is most important in this case especially when there had already been two changes in physical custody, as I believed, from the evidence tendered.

12. I have considered the foregoing also other matters including the importance of maternal love and care for a child of such tender years, also the fact that the father's role is important particularly for a male child as he grows up. With regard to maternal love. I have read and re-read the touching scene described in the report furnished by the Social Welfare Officer.

13. I have come to the conclusion that taking full account of the welfare of the child and the conduct of the parents that custody should be awarded to the applicant.

14. I order that access be in terms as agreed between the parties: access to the respondent from 7 p.m. on Saturdays to 6 p.m. on Sundays each and every week.

15. May I express the sincere hope that by agreement, further access can be extended to the respondent as the child grows older. May I express my sincere thanks for all the assistance given by Mr. Wong and Mr. Lok. The paper work good and easy to follow, the evidence was dealt with expeditiously and efficiently.

	( B.T. Caird )
	District Judge

Representation: