C v. T
Read the full judgment text of FCMC 3138/1992 on BabelCite. This Family Court judgment was delivered on 27 January 1997 before H.H. Judge Bruno Chan.
Family law – custody – variation of order – best interests of the child – status quo – influence of parent – costs – Guardianship of Minors Ordinance Cap 13 s.3 – Petitioner sought sole custody care and control of two children following joint custody order – Court found children settled with Mother since Dec 1993 – Social Welfare Reports recommended Mother – Father alleged Mother influenced children against him – Court found children's negative attitude based on own experiences – Father busy with work and relied on step-mother – Court held status quo should not be disturbed – Sole custody granted to Mother – Reasonable access to Father – Father to pay Mother's costs.
Legal issues: Variation of custody order · Influence of Mother on children · Costs
Outcome: Mother's application for variation allowed; sole custody granted to Mother
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FCMC003138/1992 IN THE DISTRICT COURT OF HONG KONG DIVORCE JURISDICTION SUIT NO. 3138 OF 1992 -------------------------
------------------------- Coram: H.H. Judge Bruno Chan In Chambers Date of Hearing: 3, 4, 5, June 1996, 11, 12, 13, & 27 November 1996 Date of Handing Down Judgment: 27 January 1997 ___________________ JUDGMENT ___________________ 1. This is the parties' application for variation of the joint custody order of 1st September 1992 in that they now each want sole custody care and control of the 2 children of the marriage. The order of 1st September 1992 gave the parties joint custody with care and control to each for a continuous period of 6 months. On 3rd March 1995 the Petitioner (Mother) applied by way of a summons for the said variation. The Respondent (Father) has never issued any summons for custody of the children but he made the application at the hearing. The parties have each produced their own bundle of documents for the hearing with different pagination which is both undesirable and expensive. This practice should be avoided in future when one paginated bundle should and can be easily agreed. Furthermore, the bundle contains large number of financial documents and bank statements of the parties which are not relevant to the issue before me and should never have been included therein. As it was the Respondent's bundle that I used at the hearing, pages reference whenever appearing hereinafter relate to this bundle. Background 2. The parties met while working in the same architectural firm. They married on 21st September 1981 and have 2 children, both boys, namely P born on 10th March 1982 who is now 14 1/2, and J born on 17th September 1986 and who is now 10. After the marriage the Father started his own construction business which has since become quite successful. However, the parties began to experience marital problem in the late 80s and in about 1990 they started to sleep in separate bedrooms. In March 1992 the parties entered into a Deed of Separation in which they agreed to institute divorce proceedings on certain terms on custody and financial provisions. Accordingly in May 1992 the Mother issued a petition for divorce based on separation with the Father's consent. The petition also set out the parties' agreement in that the 2 children shall be in the joint custody of the parties who shall each have care and control at intervals of a continuous period of 6 months, with reasonable access to the other party. It was also agreed that the Father shall pay to the Mother a lump sum of $4.8 million and monthly maintenance of $11,000 for herself, and $6,000 per month for the children during the period when they were to live with her. 3. On 1st September 1992 the decree nisi of divorce was granted to the Mother and the said terms on custody and financial provisions were made by consent an order of the Court. 4. After the divorce the Mother used part of the lump sum of $4.8 million to purchase her present flat at Tai Hang Terrace as a home for herself and the children. Pursuant to the said order, the children went to live with the Father from July 1992 to end of January 1993. Thereafter they moved to stay with the Mother from February to 15th August 1993. On 16th August 1993 they returned to live with the Father, but this time the stay was cut short to the end of November 1993, for a total of 3 1/2 months only. The children were then returned to the Mother and have since December 1993 been staying with her continuously up to the presence, although there has been access by the Father including staying access over some weekends and during some of the children's school holidays. In early 1994 the Father remarried and his present wife Madam L has given birth to a son who is now slightly over 1 year old. 5. Towards the 2nd half of 1994 there were more and more disputes between the parties over the children's access by the Father and on 24th February 1995 the Father wrote to the Mother complaining about not being allowed to see the children and requesting her to follow the previous arrangement to let the children to go live with him for 6 months beginning from March 1995. On 3rd March 1995 the Mother instituted the present proceeding by issuing a summons for variation of the said order from joint custody to sole custody care and control to her and for increase of the children's maintenance. Her application was initially opposed by the Father on the basis that the original joint custody with 6 months care and control to each party should continue. He subsequently agreed that the 6 months arrangement was no longer appropriate and he also seeks sole custody of the children. Both parties have filed several affirmations in respect of custody and of their financial position. The Father's present wife Madam L has also filed an affirmation in support of his application. As is common in contested custody matter, the Social Welfare Department is involved and 3 reports have been submitted to Court. Both parties as well as Madam L and the Social Welfare Officer Mr. Kwong gave oral evidence and were cross-examined extensively at the hearing. 6. The Mother's case is that in 1992 when the parties were discussing the terms of divorce, it was the Father who insisted in joint custody of the children with care and control to each party for 6 months, instead of allowing her to have sole custody, and threatened not to give her any financial provisions if she did not agree to his proposal. She says it was the Father who arranged for all the terms ton be drawn up by his solicitors in a Deed of Separation and she was merely told to sign the Deed without the benefit of any legal advice. 7. The Mother says that after the divorce she often found the agreed maintenance for the children insufficient and had to constantly ask the Father for reimbursement of extra expenses which she had spent on the children, She says it was after reading an article in a newspapers in July 1993 about a wife's right to maintenance m divorce that she realised that she had not been treated fairly in her divorce, She says she therefore approached the Father on the matter and as a result of negotiation with him on 15th August 1993, he agreed to pay an additional lump sum of $2 million to her and to increase the children's monthly maintenance to $16,000. 8. Going back in time to about June 1992, the younger child J was hospitalized for fever and convulsion. He was diagnosed as suffering from viral encephalitis resulting in recurrent epileptic attacks. He was also found to have frequent episodic asthma, Since his discharge from hospital, J has been followed up regularly at outpatients clinic and requires regular medication to control his epilepsy and to undergo inhalational therapy for his asthma, The Mother says because of his medical condition, J has been quite hyperactive and there has been deterioration in his behaviour .She thinks that J requires her close care and attention and she does not believe it would be in his best interest to be placed under the care of the Father for any period, 6 months or otherwise, In support of her contention the Mother has produced a medical report on J's condition by Dr. Low of the University of Hong Kong which is on page 71 of the bundle, and a report on his asthma condition by Dr. Kao. (P.77) 9. The Mother explains that the reason why the children's stay with the Father in 1993 was cut short was due to her concern for their academic results. She says she had met with their school officials and was told that it was a critical academic year for the children and that they needed a more stable environment so as not to affect their school performance. In support thereof she has produced letters from J's school headmistress and class teacher respectively on P .67 and 68 of the Bundle. She says after discussing with the Father, the children were returned to her in December 1993. 10. The Mother says that since the children's birth, she has always been the one to look after them and the Father's role has been to provide for their material needs only. She says she was always the one to bring the children to the doctor when they were sick or had any medical problem, and that the Father was either too indifferent or too busy with his work to be bothered. She cited the examples of both children having bilateral flat feet problem and the illness of J in 1992 when it was she who was responsible for seeking medical consultation for the children and that the Father never showed any concern for them. She complains of the Father's lack of supervision for the children during their stay with him such as bringing them late for school and failing to take them to their computer classes. She also produced a time chart prepared by the Father's former Philippino maid showing that during October 1992 to January 1993 when the children were staying with him, the Father would return home before 8 pm only half of the time, while at the other times he would either be out of town or not be home until very late at night. (P.45 -48) 11. The Mother describes the Father to be someone who puts his work before his family and that he has never taken up the role of looking after the children and would not be able to give such attention to them in particularly J with his present medical conditions. She says the Father was always like this during the marriage in that whenever he came home from work, he would either be reading his newspapers or watching TV rather than talking or playing with the children and that very often he would not come home to have dinner with the children at all. She says the Father rarely if ever participates in the children's schooling or extracurricular activities. She says he never attended their parents/teachers meetings or their school sports day and that he did not even know that p recently came in first in his swimming competition until he was told at the hearing. She says he does not know their favourite school subjects or the names of their class teachers. She complains that during the Father's weekend access to the children, he would simply let them play on their own while he himself would indulge in his own activities, instead of bringing the boys for any outings or activities such as to the park or to their favourite football games. She says that on the occasions when he was to take the children for oversea holidays, like the one in 1995 with Club Med Thailand, the Father booked the trip to suit his own schedule without accommodating P's schooling, as a result of which P had to miss school, whereas in their recent trip to Japan last summer, the Father would spend most of the time with Madam L, leaving the children to their own activities and that during the entire trip he and the children had sat down for dinner in one table only once. 12. The Mother also accuses the Father for failing to follow the time table for J's medication or to give the children proper care or attention during their stay with him. She says that J because of his medical condition is always afraid to sleep alone, but despite this and J's requests, the Father never bother to sleep with him or to comfort him during his stay with him. She says that the children have come to dislike even spending weekends with the Father, let alone living with him for any lengthy period, and she has produced their diaries which they have kept of the events which took place during their weekend access with the Father in the summer of 1995. The Wife says the diaries show that most of the time the children were left on their own to play TV games whilst the Father would fall asleep and his wife would be just minding her own business or too busy taking care of her own son. She also says that the children do not get on well with Madam L. She cited an incident in 1996 when there was an argument between Madam L and J over his haircut as a result of which J was made by his Father to apologize to Madam L and this has caused the children to think that the Father has sided with Madam L. The Mother says that P has expressed in writing of his desire to run away if he is forced to live with Madam L in the Father's household. She says that in April 1995 there was already an incident when P after a heated argument with the Father and Madam L ran away from their home and of which P subsequently expressed his feelings and anger in a drawing which he entitled "The Story of My Escape". She says there was another incident in 1996 when P was prevented by his Father from taking photos of his home and as a result the film was ripped from P's camera thereby ruining the photos taken earlier of some of his favourite football stars and P was extremely upset and angry with his Father. The Mother says that the children's strong negative feeling towards their Father is not due to any single factor but the cumulation of many things which she has already mentioned. She says in early 1995 the Father wrote a letter to the children agreeing to let them remain with their mother. However later he changed his mind and decided to embark on a full custody battle which has further aggravated the children's negative feeling towards him as they think that he has not kept his words. 13. The Mother denies the Father's allegations that she is using the children to try to get more money from him or that she has influenced the children to stay away from him. She says it is true that she is seeking increase of maintenance for the children because their expenses have risen substantially since the divorce and that the Father has the means and duty to make better provisions for his children, but it has nothing to do with the children's present negative attitude towards the Father. She says she has always encouraged the children to spend time with their father but it was the Father who has failed to use the opportunity to cultivate his relationship with his sons. She also denies having discussed the present custody dispute and proceedings with the children. She says the children know about their dispute because they must have overheard her frequent arguments with the Father over insufficient maintenance on the telephone. She also admits that the elder boy P might have seen or read some of the affirmations or pleadings which she had brought home to prepare for the Court hearing, but she denies she has ever used the proceedings to influence the children. 14. The Mother submits that the children have been under her care and control continuously since December 1993 and have settled down well in her household and improved on their academic performance. She says P will be in Form 4 next school term when he will be selecting courses, whilst J will be in Primary Five the academic result of which will be taken into account when placing for secondary school, hence the coming year will be very critical for both boys and it is most important that their present status quo not be disturbed or disrupted for fear of affecting their academic performance. She says both children have expressed their preference to live with her to Cathy Tsang-Feign, a marriage family and child therapist who has recommended in her report (p.69) that the 2 children should remain in the care of their Mother in her household. The Mother submits that in view of the children's expressed preferences to remain living with her and that the Father and his wife do not have the time patience or ability to render proper care for the children, and in view of the recommendation of the Social Welfare Officer, the custody order of 1st September 1992 should be varied to the extent that sole custody care and control of both children should be granted to her. She says although she has an intimate boyfriend namely A whom she sees 2 or 3 times each week and with whom she has jointly invested in properties and shares, she has no marriage plan with him and hence he is not relevant to the present proceedings. Lastly she has no objection to the Father having reasonable access to the children including staying access over some weekends and school holidays. 15. The Father initially opposed the Mother's application on the basis that the agreed arrangement under the custody order of 1st September 1992 should continue. Eventually he agreed that the 6 months stay with each parent arrangement was no longer appropriate and he now seeks sole custody care and control of both boys. He says he came from a very poor family, having lost his father at early age and had to work his way up very hard to achieve his wealth and position today. He says he has always wanted to educate his children to act and think independently and to look upon his own experience of struggling out of childhood poverty as their role model. He says that the Mother however disagreed with his method and insisted on pampering the children and making decisions on their behalf, and this had led to their marital differences, although he says it was the Mother's association with her boyfriend A and her frequently absence from home after having purchased a car instead of spending time with the children, leading to her going on a pleasure trip with A in the Chinese New Year of 1992 that finally led to their divorce in 1992. 16. The Father denies that he had ever threatened to withhold financial support for the Mother when they were discussing settlement of their divorce, which allegation he says was inconsistent with his subsequent increase of the lump sum payments made to the Mother at her request. He says it was out of his concern for the children that he insisted in having their joint custody with the 6 months arrangement. He says that the Mother however wanted more and more money from him after the divorce and that on 15th August 1993, when the children were supposed to start their 6 months' stay with him under the original arrangement, the Mother demanded a further lump sum from him and threatened not to allow the children to stay with him if he refused. The Father felt that she had already been given a fair settlement, but in order to improve his relationship with the Mother so as to benefit the children, he decided to accede to her request for a further sum of $2 million plus an increase of the children's monthly maintenance. He says right after that agreement, the children were returned by the Mother to him the following day without any problem. 17. The Father says in early December 1993, he agreed to return the children to the Mother ahead of schedule at her request and on her promise that he was to have staying access to them every weekend from Friday afternoon to Sunday evening. The Father then married Madam L in the beginning of 1994. He says that the Mother took the news badly and thereafter their relationship gradually took a down turn. He says that the Mother began to complain about him being unfair to her in the divorce settlement and about difficulties disciplining the children. He says he was then given less and less access to the children, and that his requests for their return were completely ignored. Starting from about mid-1994, the Father says that the Mother had been making unreasonable requests for additional payments for the children over and above the agreed amount without any explanation or reason, and when he refused, she would cause nuisance to him at his office to embarrass him. 18. The Father decided that this situation should not be allowed to continue and on 24th February 1995 wrote a letter to the Mother demanding the return of the children to him for 6 months under the agreed arrangement. The children were still not returned to him, but he was given access to them. However, the Father says, the Mother became more and more unreasonable by exerting influence on the children to turn them against him. He says that since his said letter to the Mother, P's attitude towards him became more and more rude and impolite, culminating in his "escape" from his home in April 1995. The Father believes that such attitude of the children towards him must have been the result of their mother's influence on them and of her bad-mouthing him, since there could not have been any other reason for them to change their attitude towards him so suddenly and drastically. The Father cited another example by producing a taped telephone conversation which he had with the children on one occasion in November 1994 in which he says the children in particularly the younger boy J were extremely rude to him by calling him names and cursing him. He says that certain things raised by J in that telephone conversation such as the matter of maintenance could not have been known to or concerned J unless the Mother had mentioned such I matters to the children. 19. The Father denies that he was unconcerned about the children. He says when J had pneumonia and was hospitalised in 1992, he immediately dropped all his work and rushed to the hospital to stay by his side through every night until his recovery .He commented that on that occasion he was the only father who stayed overnight for his son whilst all the other parents who stayed over were mothers. He says his relationship with his sons prior to 1994 were always very good, that they were close to him and would play sports with him while he would in turn tell them stories or bring them to football games or concerts. He admits that he did in April 1995 write a letter to P agreeing to let the children stay with their mother and not to claim their custody any more so as not to hurt his relationship with them, but when the children failed to attend his birthday dinner in March 1996 for which he blames the Mother, he decided that he could not let this situation continue for fear that one day his relationship with his children will finish, as he believes that the Mother will always hold grudges against him and will always try to turn the children against him, and the only way to prevent this is for him to have custody. 20. Although he has since the present proceedings been able to see the children during weekends and holidays without apparently any problem from the Mother, the Father says it is only because of the Court order and that he can feel that the children are still under pressure from the Mother. He says when one boy was playing happily with him, the other would be staring or making eye signal to his brother as if to say he should not be so friendly with his father. He believes it must be an effect of the Mother's influence or pressure on the children. 21. The Father admits that sometimes when he had access to the children, he would just let them watch TV or play video games because it is one of their favourite hobbies and he did not want to do anything to harm their relationship. He says however their relationship has been improving since last year and that they had a good time during their trip to Japan last summer. He believes given more time and opportunity, he will organize more healthy activities such as barbecue and football or basketball matches for the boys and that their relationship will improve further. He says he has recently re-decorated his home to accommodate the boys. There will be 1 bedroom for P which has been decorated and furnished to his taste, whilst J will share the other bedroom with his son born to Madam L. 22. The Father is confident that if the children are to return to his custody, he would be able to improve their attitude to him and that he can provide the role model which they need at their age. He says he has brought changes to his company and business the past few years by employing more staff to reduce the amount of work that he would have to attend personally such as business trips to China. He says he can therefore spend more time with the children and that if their custody is granted to him, he plans to spend at least 4 weekday nights per week with the children in their recreational activities or their school work, and to spend the weekends with them. He does not believe that P would really run away if custody is given to him. He says P sometimes says and does things differently, and that he just said those things to please his mother. 23. The Father denies the Mother's allegation that the children do not get on well with his present wife. He says Madam L, who is a housewife, is very patient and had in the past taken care of the children when they were living with him and got along with them reasonably well. He says he has discussed the matter with Madam L and has her full support to seek custody of his children. With Madam L as the step-mother, the Father says he can provide a complete family for the children and he believes that it would be in their best interest to be with him. 24. Madam L in her evidence in support of the Father's application says that she first came to know the children in about November 1992 and thereafter they would meet regularly for about once every 2 weeks when she would accompany the Father to go but for dinner with the children, and that during the Chinese New Year in 1993 they went on holiday to Japan when they had a good time and got along extremely well with each other. 25. Madam L says she began to cohabit with the Father since about March or April 1993 and in August 1993 when the children came to live with their Father, she began to take a more active role in taking care of hem and their homework. She says during this period of time, she had on number of occasions taken J to the doctor when he fell sick. She says J as quite close to her and depended on her then. She says however after he children returned to their Mother in late 1993 and after her marriage to the Father in early 1994, the children came to visit them far less than before and were no longer as close to her as before, and after the parties' custody dispute has come to full blown, the children's visit became even less and when they came, they would be furious at the Father and would sometimes even ignore him altogether. She says they were however still friendly to her. She says she has noticed that the children were visibly conscious of their attitude towards the Father possibly due to the fact that they had to report to their Mother, but their attitude would be different and better if they were in the absence of the other. 26. Madam L says although she now has a child of her own who is a little over I year old, she does not have to spend too much time on him as she is assisted by a Philippino maid so that she will have the afternoon free to look after the children and their studies. She says the children have never expressed any negative feeling towards her and given some time for "warming up", she believes she can take care of them as well as anyone. She proposes that as P is old enough to go to school by himself, she will let him do so whilst she or the maid can take J to school. As she used to give private tuition and had taught Form 3 level English in evening class, she believes that she can help both boys with their studies and that if there are subjects which she cannot cope, they can then have private tuition on those subjects. She says she has no plan to have more children of her own and as she is a full time housewife and mother, she believes she can supervise the daily arrangements for the boys without any difficulty .She accepts that she can never replace the status of the boys' natural mother, nor does she intend to compare or compete with her. She says she will just be the step-mother who will give the boys love and care as their natural mother. 27. There are 3 Social Welfare Reports, both by the same officer Mr Kwong. The 1st one is primarily on interim access, whilst the 2nd and 3rd reports were are on the main issue. Mr Kwong has interviewed the parties and the 2 boys as well as Madam L. In the reports Mr Kwong found the elder boy P to be firm about his preference to be with the Mother, and to have a strong negative feeling towards the Father. According to Mr Kwong, P told him that such negative feelings were derived from his own experience and not influenced by the Mother. P also told him that the Father rarely coached him in his studies or took him for outdoor activities, and that he strongly objects to living with the Father and Madam L as he could hardly communicate with either of them, As for J, Mr Kwong reported that he also shares his brother's preference for the Mother. Mr Kwong said in his reports that in arriving at his recommendation on the question of custody, he has referred to the following principles:-
28. In reference to these principles, Mr Kwong found both parents to be capable of looking after the children but that the Mother has a closer relationship with them while the Father is not welcome by the children. He also found that both boys mature enough to form their opinion and that their expressed wish to be with the Mother should be given due weight. He then said this on page 7 of his 3rd report:-
29. Whilst Mr Kwong could not rule out the possibility of some influence by the Mother on the children, he was satisfied that their attitude towards their Father was based on their own experiences of and interaction with him. Mr Kwong also felt that there was a genuine risk that P would run away if ordered to live with his Father. Mr Kwong concludes that the present arrangements for the children has been working effectively and accepted by the children and hence he did not think it would be in their interest to change the present status quo. He therefore recommended that custody should be granted to the Mother with reasonable access during weekend and long school holidays to the Father. 30. In dealing with the present application for custody, I am guided by the general principles as set out in Section 3 of Guardianship of Minors Ordinance, Cap 13 which reads as follows:-
31. There is no dispute that the Mother was throughout the marriage the primary carer of these 2 boys and but for 6 months in 1992 and 3 1/2 months in 1993, has their de facto care and control since the divorce. According to the social welfare reports, the children have settled down well in the Mother's household. The Mother has all these years tended to the various needs and daily activities of the children, even during the periods when they were living with the Father, and it is no surprise that she has formed a very strong and close emotional bonding with the 2 boys. There is no evidence that she has not been able to render proper care or supervision of the 2 boys, despite the fact that she works as a secretary during day-time, or that the boys' behaviour or academic performance as a whole has deteriorated since their return to her in December 1993. The main criticism from the Father and in fact the main reason for the Father for seeking the boys' custody is that he believes that the Mother has turned them against him, that she has badly influenced them to be rude to him and to refuse to spend time with him, all because she holds grudges against him and wanted more money from him. Apart from this, there does not appear to be any other major criticism of the Mother's ability or suitability to have custody of the children, other than some attack of her going off with her boyfriend on holiday on their own in 1992 leaving the 2 boys behind to the Father, and of her pampering the boys rather than teaching them to think and act more independently. 32. Of these 2 latter points, the incident of the Mother going off on holiday without the children happened almost 5 years ago. It appears to be an isolated incident and it was not as if she left the children alone at home. She knew the children would be with their father. I do not think that the incident reveals any major fault on her part as a parent. As regard the 2nd point, there is no doubt that both parents have spoiled these 2 boys in particularly in their material needs. They are given expensive toys and clothes, brought to dine in e pensive restaurants, provided with the privilege of various club facilities, taken to holidays oversea, with the enjoyment of all sort of activities provided not just by the Mother but also by the Father. If it is true that they have been pampered, then they have been pampered by both parties. 33. I now turn to the Father's criticism that the Mother has badly influenced the children against him in her attempt to get more money from him. There is no denying that the Mother felt, and still feels, that she has not been treated fairly in their divorce financial settlement by the Father. She has never been specific as to how she has been treated unfairly, but it is save to assume that she means she should have received better terms in respect of lump sum and/or property settlement from the Father. 34. After the divorce, it is true that the Mother did on several occasions request more money from the Father. In March 1993 she was given a further sum of $600,000 with which she purchased a BMW. In August of the same year she persuaded the Father to give her another lump sum of $2 million for the purpose of purchasing a bigger home for the children. She never purchased any property with the money and there is no direct evidence as to what she did with it. She has however invested in the stock market and sustained losses of more than $1 million, and in September 1994 she invested another $1.35 million in a "project investment" dealings in gold and bonds with incredible high return if successful but also with high risk and little security. Unfortunately the investment has been unsuccessful and she says it would be a total loss. She has therefore lost more than $2.4 million of the lump sums given to her since the divorce which may provide a motive for wanting to obtain more money from the Father. However, apart from the occasion in August 1993 when the Father says that the Mother refused to let him have the children unless he agreed to give her additional lump sum, and I believe it was more than just a coincidence that the children were returned to the Father right after he had acceded to the Mother's demand, there is no evidence that the Mother thereafter has repeated such demand or action. She might have from time to time complained to the Father about insufficient maintenance for the children, expressed unfairness about her divorce settlement, or resented about Madam L enjoying a better lifestyle as the new wife to her former husband, there is however no evidence from the Father that she has since made the kind of demand as she did in August 1993 up to the present proceedings. If it is indeed her intention to use the children's custody to get more money from the Father, one wonders how she could achieve that purpose without making any actual demand for specific amount of money to the Father, and by bringing the custody issue to Court thereby in reality taking the matter out of her hands into the Court's decision. 35. The Father has also said that the Mother took the news of his re- marriage in 1994 badly and has since become difficult to his request for access and has turned the children against him. It is true that sometimes a former wife would become jealous of the second wife, and I believe that the Mother in this case may have been resentful about the obviously higher standard of living and lifestyle Madam L has been provided by the Father, it is however also a fact that Madam L was already cohabiting with the Father in March 1993 and was enjoying that lifestyle then, and I am doubtful that the marriage in 1994 would actually have such an impact on the Mother to cause her to actively and deliberately turn the children against the Father . 36. The Father's evidence is that his relationship with the boys was good prior to his remarriage but since then the children's attitude towards him has begun to deteriorate suddenly and drastically. He relies on the taped telephone conversation in November 1994 in which J called him ugly names such as "Damn dead guy" and cursed him "to die in a traffic accident" and P's escape episode in March 1995 as prime examples of the children's rebellious attitude towards him. There is no doubt that J's behaviour shown in the taped conversation is shocking and distressing to anyone who has heard the tape or read the transcript, not just to the Father, and I have a lot of sympathy for him to have to endure such verbal abuse from his own son, but there is no evidence that the Mother was behind it, she probably was at work at that time, whilst J's conversation appears to be spontaneous and uncoached, nor is there evidence that he has continued to behave that way since. I believe it is an isolated out-of-character incident probably due to the effect of medication taken by J, as there is medical evidence that J's medication does affect his behaviour . 37. I believe that the Mother in this case had at sometimes in 1994 and 1995 become more and more unhappy about the amount of maintenance she has been receiving from the Father and about her divorce settlement that she might have made known of such unhappiness to the children and had complained about their Father in their presence. I also believe that when this custody dispute came to head by the institution of the present proceedings, both parties in particularly the Mother may have try to win over the children, as most parents tend to do in any contested custody matters, by saying and doing things to the children to get them over to her side. These 2 boys in particularly P who are quite mature and independent according to the Social Welfare Officer and who have a closer emotional attachment to their mother with whom they have been living happily since December 1993, not surprisingly decided to side with their mother in what they perceived to be not just a battle between their parents but also with Madam L who they might think was trying to replace their mother. It is I think an unfortunate but not unnatural reaction of these 2 boys, a situation which could have been avoided or at least handled differently by their parents. I am therefore not satisfied that their behaviour was wholly caused or influenced by the Mother against the Father, and I believe that they have freely and independently expressed their mind and their preferences to the Social Welfare Officer. 38. The Mother says that one of the reasons why the children were reluctant to even spend weekends at their Father's home is that they found it boring at his place. She says their diaries show the real situation. The Father implies in his evidence that the Mother was behind the idea of the diaries. May be it was the Mother's idea to make the children to record their activities at the Father's home, but the Father does not appear to be challenging the truthfulness or accuracy of the contents of the diaries. In fact even on his own admission he seldom organised any activities for the children and would simply just let them watch TV or play video games. It is small wonder that the children found it boring to spend weekends with their Father. In early 1995 the children still appeared to be handling their parents' custody disputes in a relatively calm and civilised manner. P's letter to his Father on 26th February 1995 (717 -718) asking him to respect their wish to remain with their mother and to re-consider his position was written with loglical and reasonable persuasion. It shows the children's attitude at that time, and the Father by his letter of 23rd April 1995 (p.91 -97) accepted the children's wish to live with their mother. He subsequently changed his mind. Rightly or wrongly, this may have aggravated the already fragile relationship between father and sons. The subsequent incidents of P pulling the film from his camera after being stopped by the Father from taking photos of his home and J having to apologize to Madam L after the haircut incident no doubt further fuelled the children's hostility towards the Father and Madam L. These are what I believe the reasons for the children's present attitude towards their Father- Of course the situation was not helped by the communication problem the Father has with his children where at one stage when they would communicate only in writing, and by the facts that the Mother has allowed the children to use disrespectful nicknames or description of the Father and/or Madam L in their diaries and letters and of her failure to discourage the children's hostile stance to their Father. The children may have been spoiled in the past and may have on occasions been rude or impolite to either parents, the Mother however should have realised that the children have gone too far with some of their remarks about their Father and Madam L and that she should have reproached or disciplined the children for doing so. This is where I find fault with the Mother and it is not surprising that the Father believes that the Mother has been influencing the children. 39. The Father may now have employed more staff for his company and he may no longer have to make as many business trips as before, he is nevertheless still the person running his company and business and is obviously a very busy person as evidenced by his not infrequent change of his access time to the children and of his having to go to his office even during his holiday with the children. There is no doubt that he will have to rely to a large extent on Madam L to handle the boys during most of the day if he is given their custody. His wife says she is willing and able to do so. The Social Welfare Officer however has this comment:-
40. I agree with Mr. Kwong's comment and believe that if the children turn difficult and refuse to co-operate, and I have every reason to fear that they will be difficult, I do not think the Father or Madam L would be able to handle them and at the same time cope with their other responsibilities such as his job or her duty towards her own infant son. Although the Father does not believe P would actually run away as he has threatened in writing, I am not so sure that he will not as he is almost 15 and there will be ample opportunities for him to do so during anytime of the day such as when he is on his own on the way to and from school in the absence of any adult. It would just be so easy and tempting for him and his younger brother to just take off for their mother's home whenever they are unhappy about anything in the Father's household. Let's not forget that these are quite mature and independent boys who have over the past several years demonstrated that they can be quite rebellious to their father and will not readily do as he says. Given time and patience, and a lot of communication and counselling and with the children's co-operation, the Father may be able to mend his relationship with the boys, but I have no doubt any drastic change now to the boys' present living arrangement will be most disturbing and disruptive to their emotion development and academic performance, in particularly in view of the medical condition of J which requires close supervision as recommended by his doctors, and of the coming critical year for their schooling, that the immediate result will be disastrous to their welfare. 41. The children have settled and adjusted well in their Mother's household the past 3 years, as confirmed by the Social Welfare Reports. There is no dispute to the Mother's ability in general to provide proper care for them. Even the Father in one of his letters to P in March 1995 (p.720) admits that the Mother is able to give better care for the children. Although the report of Cathy Tsang-Feign is, as rightly pointed out by the Father, one-sided without hearing the Father, I do agree with her view that a stable environment is necessary for the children's growing up and a steady and consistent care-taker is absolutely essential, and that the parents need to deal with their own grievances between themselves without dragging the children into their conflict. P and J have been reluctantly and unwittingly dragged into their parents' dispute the past few years. It has proved to be disruptive and distressing to all concerned in particularly the children. It is about time that this very unhealthy situation be brought to an end. The children at their present very important and critical stage of their emotional and educational development should be allowed to live their life peacefully and happily. Their present focus should be on their mental, physical and creative development and their education and not be wasted on writing up reports on their activities at f their Father's home or embroiled .in their parents' dispute. Part of their emotional development is with their parents and the Father will have all the opportunity to do that with the children and to provide his role model to them during his access time to them and not necessarily on a daily basis. Having considered all the evidence and circumstances of the case, I have come to the conclusion that it will adversely affect the children to change their present status quo. I firmly believe that it is in their best interest for the children to remain living with their mother and under her care and control. I therefore allow the Mother's application for variation of custody order and grant her sole custody care and control of the children. I do have sympathy for the Father and believe his present action is out of his genuine concern for the children. He must however realise that his sons are much more mature and independent than he gave them credit for and I he should respect their wishes. They should be looking forward to seeing their father on weekends instead of being forced to and on this the Mother must give her full co-operation. They should spend time with their Father and to cultivate their relationship with him. They however at their present age have their own activities to participate with their own peers and should not be made or allowed to waste their weekends or holidays just watching TV or playing video games. Whilst the Father should be given regular access to the children, it is the quality, not quantity of such access that matters. During such access, be it weekends or long holidays, proper activities should be organised for the children to participate with the Father and Madam L but they should also be allowed to have their own activities with their peers as well. I will not make any order for defined access. Reasonable access including visiting access once every or every other weekend, and on school holidays, with staying access from time to time but should be flexible to cater for the children's other needs or activities, would suffice, in the hope that the parents will from now on use their good sense and common sense to work out what is best for the children now that their custody dispute is finally, and hopeful, over. If however the parties wish to address me on defined access, I will hear them in a separate hearing. 42. I will now deal with the question of costs which in custody dispute do not necessarily always follow the event and in the exercise of my discretion, I should take into account of the parties' conduct of the proceedings as well as their financial position. Although I accept the Father's application was out of his genuine concern for his own sons, his action was in the circumstances perhaps hopeless at the very beginning, as borne out later in the evidence, and in view of his better financial position, I think it is only right that he should bear the Mother's costs of and incidental to the custody proceedings to be taxed on party and party basis with certificate for Counsel. This is an order nisi in the first instance.
Representation: Miss. E. Longmore instructed by M/S Y.H. Lee & James To for the Petitioner . Mr .T. Cheung instructed by M/S Ng & Shum for the Respondent. |