W v. W

FCMC002007/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 2007 OF 1980

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Coram: H.H. Judge Bokhary in Court

Date of Judgment: 24th August 1981

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JUDGMENT

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1. In this case I have to deal with the question of the custody of 2 young children: a little girl aged 9 and her younger brother aged 5. Unfortunately, their parents' marriage has broken down irretrievably. Late last year, their mother presented a petition for divorce on the basis of 2 years living apart and consent. 3 months ago, she was granted a decree nisi. The learned Judge who granted the decree was not satisfied with the arrangements for the children. So he adjourned the question of their custody to chambers. I share the learned Judge's anxiety. Such anxiety springs from the fact that the Court is being asked to grant custody of one child to one person and custody of the other child to another person. Both parties urge me to grant custody of the daughter to the wife and custody of the son to the husband.

2. To split up the children of a family is inherently undesirable from the point of view of their welfare, which is the first and paramount consideration. If reasonably possible, such a thing should be avoided. Any Court would be reluctant to bring about such a split by its order. Even where the Court is faced with a de facto split of this sort, it will always examine all the relevant circumstances very closely before turning such a situation into a de jure one by its order.

3. One can see these considerations operating in the way in which the learned Judge who granted the wife a decree nisi dealt with this matter when it was before him. First, he declined to make a declaration under section 18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 that the arrangements for the children were satisfactory or even the best that can be devised in the circumstances; and, accordingly, he referred the question of their custody to Chambers. Secondly, he exercised the useful power of reference to the Director of Social Welfare for investigation and report given by rule 95(1) of the Matrimonial Causes Rules.

4. As a result of this reference, I have the benefit of a helpful report on the children dated June 16, 1981, prepared by a caseworker, Mrs. WONG LEUNG Man-ha, to whom I would like to express the Court's thanks.

5. The vital parts of the report are all based on the caseworker's own observations and assessments, which is as it should be: see Thompson v. Thompson (1975), 'Times', Mar. 12, C.A. Unavoidably, such reports always contain some hearsay. Hearsay in such reports is unobjectionable when it is in respect of uncontroversial matters: see 'Rayden on Divorce', 13th ed. (1979) at p. 1037. In so far as I place reliance on the contents of the report, they are based on the caseworker's own observations and assessments or uncontroversial. Even then, I naturally do not accept anything blindly. Ultimately, I must make up my own mind.

6. The sad but significant fact of the matter is that this sister and this brother have never really lived under the same roof.

7. At the time of the daughter's birth, the parties were living in a flat in Shaukiwan. From birth, the daughter was placed with the wife's family, also in a flat in Shaukiwan. The husband moved out of the matrimonial home in May 1978, when the daughter was 6 years old. The wife remained in the matrimonial home, as she does to this day. The daughter remained with the wife's family, as she does to this day. Thus, the wife and the daughter live, as they always have, separately but reasonably near to each other.

8. The son lives, as he has since early infancy, with the husband's brother and the brother's wife in a flat in Wanchai. It was to this flat that the husband moved when he left the matrimonial home in May 1978. By that time the son was almost 2 years old. The husband and the son have lived in the Wanchai flat since then.

9. The daughter is well looked after by her maternal grandmother, as she has been since birth.

10. The son is well looked after by the aunt to whom I have referred, as he has been since early infancy.

11. Both children are doing well in school, are healthy and are reasonably happy.

12. Neither the husband nor the wife are financially well off; but neither are destitute either. He is a blue collar worker earning about $1,800 per month. She is a manicurist. Mainly through this occupation but also partly through what she makes through subletting a cubicle in the former matrimonial home, she makes about $1,500 per month.

13. The question of periodical payments and/or a lump sum has been adjourned to a Registrar. Accordingly, I deliberately refrain from saying more than is necessary about the parties' finances. I cannot wholly ignore them, however, This is because one of the reasons why the caseworker made the recommendation which she did (and to which I will revert) is her view 'that both parties concerned appeared capable financially and emotionally to be custodian of one child.'

14. I should mention that the present proceedings are not the first between the parties with reference to the marriage or the children of the family. On February 27, 1979 in proceedings in this Court the reference to the record whereof is M.P. No. 26 of 1979, the wife obtained an order providing, inter alia, that she be no longer bound to cohabit with the husband and that custody of the children be granted to her, with care and control of the son to the husband.

15. Since 'split orders' whereby custody is given to one person while care and control is given to another are not ordinarily made (see S v. S (otherwise D) (1968) 112 Sol. Jo. 294, C.A.) it can be seen that the extraordinary nature of the present situation has already been judicially recognised.

16. This is indeed an extraordinary case. As is apparent from the facts which I have stated, these 2 children have never really lived under the same roof - not even before their parents started living apart. Indeed, the daughter has never really lived with either parent.

17. Very commendably, the wife tries to bring the children together during weekends - sometimes overnight in the flat where she stays. Contact between father and son is not a problem for, as I have said, they live together. He visits his daughter from time to time, but not, it seems, as often as the little girl would like. I trust that he will try to do better in future and that, in this, he will receive every cooperation from the wife and her family.

18. Although splitting the children of a family is, as I have said, something which the Court is reluctant to bring about or countenance, there is sometimes no practicable alternative. Sometimes the situation is such that a separation of thousands of miles spanning continents is unavoidable. For example, in C v. C [1958] C.L.Y. 975 custody of the son was granted to the father in Tasmania while custody of the daughter was granted to the mother in England. In such cases the advantage of brotherhood and sisterhood (which advantage is discussed in Wakeham v. Wakeham [1954] 1 All E.R. 434 at p. 435) is virtually lost. In the present case this advantage is not lost, although it is, regretably, diminished.

19. When the matter came on for hearing this morning, the parties urged me to split the children in the way I have mentioned. Although I could see little if any alternative, I adjourned my decision to this afternoon to see if any would occur in the interval. If any had, I would have put the same to the parties for their consideration. Unfortunately, I can think of no alternative.

20. In all the circumstances, I have come to a conclusion which accords with the caseworker's recommendation, namely, that the children are best left as they are and that orders as to custody (carrying with them care and control in the normal way) should be made accordingly. Within the context of section 18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance, Cap. 192, I am not satisfied that the arrangements for the welfare of the children are satisfactory, but I am satisfied that such arrangements are the best that can be devised in the circumstances. This is a sufficient declaration for the purposes of the section.

21. Accordingly, with a heavy heart but with no doubt as to the correctness of my so doing, I grant custody of the daughter to the wife with reasonable access to the husband and custody of the son to the husband with reasonable access to the wife. The wife seeks costs. The husband does not resist them. I award the wife costs to be taxed on the Upper Scale and under the Legal Aid Regulations against the husband. This order as to costs does not, I should add, reflect any adverse view of him.

22. I give Judgment in open court because this case raises some points of general importance. Although neither party or the children have anything to be ashamed of, anonymity is desirable. For this reason, neither party or child is mentioned by name.

Representation:

Miss C. Cheung of Rowdget W. Young & Co. for the wife

The husband in person.