Lam Pak Wan Kam v. Lam Yuk Hung

HCMC000252/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 252 OF 1970

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Coram: Trainor, J.

Date of Judgment: 2nd November, 1973.

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JUDGMENT

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1. The marriage of the parties to these proceedings was dissolved by a decree nisi of divorce on the 17th July, 1971. The decree was made absolute on the 20th October, 1971.

2. The petition for divorce was filed by the wife and the grounds on which dissolution was sought were adultery, cruelty and sodomy. The petitioner did not seek custody of the only child of the marriage but conceded it to the respondent. In a most unusually worded decree nisi it was stated that the "Petitioner having sufficiently proved the contents of the Petition" the marriage was dissolved by reason of the respondent's adultery. The decree made no reference to the custody or care and control of the infant but merely ordered that by consent the petitioner have access to him.

3. The infant, who had lived with his father since the separation of his parents before the divorce proceedings went to the United States in January of this year with his mother with the consent of the respondent. While there he lived with his mother and her present husband and went to school. He was brought back to Hong Kong about Easter and has since lived with his father and his present wife.

She said that she took the boy to California where he lived in the congenial surroundings provided by her husband. She said she and her husband helped the boy to improve his English and also helped him in maintaining his mother tongue and taught him those subjects that would normally be taught to a child with a Chinese background and tradition. The petitioner also ensured that the boy would remain in contact with his father by seeing that he wrote to him regularly. She said the boy adjusted very quickly to his new surroundings and was very happy in his new home and very fond of his step-father, a feeling that that was fully reciprocated.

4. The respondent about Easter time visited America and, according to the petitioner, was allowed to see his son and take him on excursions. He was allowed to take him away from San Francisco to Disney World, which I understand is in Miami, a trip that would take some days. Before his departure it was arranged, the petitioner says, for the respondent either to bring or send the boy back to San Francisco but this was never done. Instead the respondent, deceitfully and to the great worry and anxiety of the petitioner, took the boy back to Hong Kong.

5. Needless to say these allegations are denied by the respondent in toto or practically so.

6. So far as the adultery is concerned he would say that up to the time his wife left the matrimonial home he had never committed adultery and only once before the decree nisi. He denied completely the allegations of cruelty and sodomy and gave an explanation as to why he had not defended the divorce proceedings and denied the allegations made in them. He said that before the proceedings commenced he realised in telephone conversations with the petitioner that despite his efforts at a reconciliation the petitioner had no intention of returning to the matrimonial home. In these circumstances when on the telephone she said she intended to institute divorce proceedings but would not seek custody of the child, he decided not to defend.

7. The respondent counter-alleged that his wife was unsuitable to have custody of his son as during the marriage she had committed adultery with two colleagues of his (a fact of which he was aware at the time of the proceedings). He denied that he had ever tried to borrow money from the petitioner or that he had ever asked for $300,000, or any sum, in return for relinquishing the custody of his son. He said that he consented to his son going to the United States on the request of the petitioner that the boy might go there for a holiday; (It transpired at the hearing that in fact a return ticket was obtained for the boy.) that it was only on the understanding that he would be returned after a short visit that consent was given. He said that when he took the boy to Disney World it was never agreed that he would return him to San Francisco.

8. From what was said to me in the opening of the proceedings I understood, rightly or wrongly, that objection would be taken by the petitioner to the respondent denying that he had been guilty of adultery, cruelty and sodomy on the ground that they had been held to have been established by the decree nisi and were res judicatae. I further understood, rightly or wrongly, that the petitioner would object to the admissibility of evidence to establish her adultery on the ground that the respondent is estopped from making these charges now; they were matters known to the respondent before the divorce proceedings and they should have been raised then. I was told that these were objections which had never previously been raised in matters ancilliary to a divorce suit in Hong Kong and were such that a judgment on them would be of the utmost importance here.

9. It was unfortunate that both Mr. Yu for the petitioner and Mr. Tang for the respondent were and idem on the points on which I anticipated opposition and so I was deprived of argument. In their view the respondent could not be heard to deny his adultery, the ground on which the decree nisi was granted; that the petitioner could be heard on the alleged cruelty and sodomy as the decree nisi did not establish a finding on them; and evidence as to the petitioner's adultery prior to the divorce was admissible. I was referred to certain cases Hull v. Hull⁽¹⁾; Field v. Field⁽²⁾; F. v. F.⁽³⁾ and Porter v. Porter⁽⁴⁾.

10. In my opinion, fortified by the decisions in the cases cited, it would be proper to accept the view expressed by counsel, but not having heard argument I am not disposed to rule on the matter. However, even if I were to hold that cruelty and sodomy were matters on which I could hear the parties I am not of the opinion that what I have heard in these proceedings would have established it. So far as ill treatment of the boy is concerned, I am satisfied, having spoken to him, and he is an intelligent boy and very capable indeed of expressing himself, even in English, that no treatment he has received has in any way affected his great affection for his father. As to the adultery of the father prior to the divorce proceedings while it might be relevant for consideration in the present application it was known to the court when custody was granted to the respondent on the consent of the petitioner. It has been said, and I am inclined to accept it though I make no finding on it, that at the time of the divorce proceedings the petitioner was not in any financial position to look after the boy and that was why she did not seek custody. It is true she could have sought maintenance but did not. It was put to the petitioner that if she had wanted the boy she should have done so; and it was further put to per that the reason she did not was that she did not wish to be encumbered with him as she had radio and television ambitions. However, because of the conclusion to which I have come I do not intend to dwell on these points.

11. I saw the boy alone except for an interpreter. He is, as I said earlier, intellegent, vocal and fully capable of expressing himself, even in English. Indeed, only on two occasions was he unable to understand me and the aid of interpreter had to be invoked; at no time did he require the aid of the interpreter to express himself.

12. I must confess that my interview with the boy did not make my task any ...(illegible). He was obviously very fond of both of his parents, loved both his parents, and he was very fond of the man his mother married. From what he told me of his step-father it was obvious that the step-father had taken a very considerable interest in him and his education while he was in the United States. He was very fond of his step-mother too. He liked living in San Francisco and he preferred school there to school in Hong Kong. Apart from the choice of school he would prefer to live in Hong Kong. However he was on the horns of a dilemma and could not choose between either place if it kept him away from either parent for too long.

13. Having heard everyone I announced that I considered the proper course to adopt was to maintain the status quo so far as custody was concerned. I delayed my decision on the question of access to see if any agreement could be arrived at between the parties on this. I have now heard from counsel the result of their discussions and that no agreement has been reached.

14. In coming to a conclusion on oustody I was satisfied that there was nothing to choose between the parents in so far as their love for the child and their concern for his welfare was concerned. Perhaps the case for the mother was a little stronger if material benefits were to be the outweighing consideration, but the boy's life with his father would be very far from one of hardship.

15. I have reached my decision on what I considered in the circumstances to be what is in every way most advantageous for the boy. Firstly I think that at this stage in his life, the boy is now 11 years of age, it would be unduly upsetting to transplant him to an environment which, though on a previous visit he adapted himself to it very quickly and apparently satisfactorily, is alien and almost completely different to that in which he has spent all his young life. The schooling may be more to his liking and he might again adapt quickly to it yet the change in the curriculum and medium of communication is different and must, I feel, slow up to some extent, the conclusion of the boy's schooling. Secondly, I consider that it could be highly detrimental to this boy to deprive him of the constant association, friendship and direction of his father, however excellent his step-father may be. I think there can be no doubt that a boy of this age, and for the next few years, would be much more amenable to direction and correction from his father than from a person who, however well liked, might still be regarded as an "outsider" who had no "right" to correct or direct when what was offered was not desired.

16. The question of access presents a difficulty. Undoubtedly the mother must have reasonable access, but how to order and control it in view of the fact that she will be in her home in San Francisco and out of the jurisdiction of this court is quite a problem. I have given anxious consideration to the conflicting answers of the parties on cross examination with regard to how the boy first went to the United States. In particular, I have in mind that the petitioner, although she said she had been given the custody of the boy by the respondent, nevertheless, purchased a return ticket for him.

17. As I said earlier I hoped the parties might propose an agreed solution that would be satisfactory to the court but this they have been unable to do. In the circumstances I have no alternative but arbitrarily to fix the terms of access and this I do as follows:

18. That once in each year, commencing from the date of this order, the petitioner shall be entitled to have the boy stay with her in Hong Kong for two weeks and shall in addition have reasonable access to him one day a week. In addition, on the petitioner and her husband entering into an undertaking in a form to be approved of by the Registrar to return the boy to Hong Kong and witnessed by a notary public in the United States, the boy shall during the summer vacation in each year be sent or brought to the petitioner by the respondent to reside with her for one calendar month. The petitioner to be responsible for the cost of the boy's transport.

19. In the event that in any year the petitioner does not seek to have the boy to stay with her in the United States by reason of her coming to Hong Kong or for any reason then she shall be entitled to have the boy stay with her in Hong Kong for six weeks in addition to reasonable access to him for one day per week.

20. I have been given to understand that the respondent has agreed not to ask for costs on the undertaking of the petitioner that there will be no appeal and accordingly I make no order as to costs.

21. In the event of the petitioner filing an appeal I award costs to the respondent.

Representation:

Mr. Patrick Yu (L. S. Shum & Co.) for Petitioner.

Mr. Robert Tang (Peter Mo & Co.) for Respondent.

(1) [1960] 1 A.E.R.378

(2) [1942] 2 A.E.R.81

(3) [1968] 2 A.E.R.946

(4) [1971] 1 A.E.R.1037