John Boiling v. Ann Elizabeth Boiling and Another
Read the full judgment text of FCMC 174/1974 on BabelCite. This Family Court judgment was delivered on 6 August 1975 before Judge Jones, D.J..
Family law – custody – divorce – welfare of the child – adultery – District Court – Petitioner – Respondent – Co-Respondent – Mark Lewis – Peak School – Berkhamstead School – In re Thain [1926] Ch 676 – J v C [1970] A.C. 688 – B v B – Custody awarded to Petitioner – Reasonable access to Respondent – Costs against Respondent – The Petitioner sought custody of the child Mark Lewis born on 30 June 1968 following a decree nisi of divorce granted on 17 August 1974 based on the Respondent's adultery with the Co-Respondent. The Respondent left the matrimonial home in September 1973 and lived with the Co-Respondent until January 1975. The Petitioner has had de facto custody and the child attends The Peak School. The parties agreed in September 1977 that the child would attend Berkhamstead School in England. A report from the Director of Social Welfare revealed the child has no preference for either parent but enjoys living where he is and does not wish to change his school. The Court considered the authority of In re Thain [1926] Ch 676 and J v C [1970] A.C. 688 regarding the rule that the welfare of the child is the paramount consideration. In B v B it was held that where a mother committed adultery and disrupted the home the wishes of the father could be taken into account. The Petitioner is an unimpeachable parent while the Respondent's adultery is the cause for the breakdown of the marriage. Balancing the interests of both parents the Court is satisfied that the interests of the Petitioner prevail over those of the Respondent. The welfare of the child being the paramount consideration it is in his best interests to remain with the Petitioner. There will be an order for custody of the child in favour of the Petitioner with reasonable access to the Respondent. Costs against the Respondent.
Legal issues: Custody determination
Outcome: Custody of the child awarded to the Petitioner with reasonable access to the Respondent.
|
FCMC000174/1974 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 174 OF 1974 -----------------
----------------- Coram: Judge Jones, D.J. in Chambers. Date of Judgment: 6 August 1975 Mr. Rose of (Reasons) for petitioner. Mr. Cotlerill of (GHDW) for Respondent. ----------------- JUDGMENT ----------------- 1. This is an application for custody of the child of the marriage Mark Lewis who was born on the 30th June 1968. The Petitioner was granted a decree nisi of divorce on the 17th August 1974 based upon the fact of the respondent's adultery with the Co-Respondent. 2. The respondent left the matrimonial home at Plunketts Road, The Peak in September 1973 without the child, and shortly afterwards went to live with the Co-Respondent in the Peak area. The respondent lived with the Co-Respondent in the Peak area until January 1975 when as a result of the Co-Respondent's work they moved to the New Territories. The Petitioner has continued to live at the former matrimonial home until the present time where he has de facto custody and control of the child. No appreciable difficulties arose between the parties with regard to custody and access to the child until the respondent moved to the New Territories. 3. From September 1973 until January 1975 the child lived during various periods with the Petitioner, and at other times with the respondent and Co-Respondent. The most regular arrangement has been for the child to live with the Petitioner during week days, for he attends The Peak School which is just across the road from his home and with the respondent at week ends. For some continuous periods from September 1973 to December 1974 the child has lived with the Petitioner whilst from 16th April 1974 to 5th September 1974 the child was with the respondent in England. Since January 1975 the child has continued to live with the Petitioner during the week and with the respondent and Co-Respondent at week ends. 4. On the 22nd July 1975 the Petitioner obtained an order in the Supreme Court with the consent of the respondent to take the child with him on leave out of the jurisdiction from 9th August 1975 to 17th November 1975. 5. In September 1977 it has been agreed between the parties that the child will attend Berkhamstead School in England as a boarder. 6. For the period from November 1975 when the Petitioner and the child are due to return from leave until September 1977 whilst the child continues to live in Hong Kong both parties decide to have his custody during the week, and are prepared to afford access to the other party at week ends. The most important change that would be effected if the child's custody were to be awarded to the respondent would be a change in school from the Peak School to Kowloon Junior School. It is clear that the homes of both parties are suitable and that the child loves both parents. 7. The parties have behaved very responsibly and there is no doubt that they wish to do everything possible for the child's welfare. The parties have very properly not discussed their disagreements with the child. 8. I asked the parties at the conclusion of the hearing whether they would like me to see the child, but in order that he should not become involved in the dispute both preferred that I should not do so. In deference to their wishes which I fully appreciate I did not see the child. 9. The report from the Director of Social Welfare reveals that the child has no preference for either parent but that he enjoys living where he is and does not wish to change his school. The child is looked after by an amah when he is not at school and the Petitioner is not at home. The respondent contends that it is preferable for the child to live with her as she does not work and can devote all her time to his care whereas the Petitioner is for a greater part of the time away from the home at work. 10. From the authority of In re Thain [1926] Ch 676 referred to by Lord MacDermott in a House of Lords decision J v C [1970] A.C. 688 in making reference to the rule that the welfare of the child is not the sole consideration, but the paramount consideration amongst other conditions the wishes of an unimpeachable parent stand first. 11. In B v B a Court of Appeal decision delivered on the 13th May 1975 Cairns L.J. said 'Where a mother committed adultery and disrupted the home it was still the law that the wishes of the father could rightly be taken into account in deciding what was best for the children'. Lawton L.J. in the same case said 'It was right that other women in similar circumstances, who thought that they were justified in leaving their husbands, should know that in so doing they ran a grave risk of losing their children'. 12. In determining the issue before me I have taken the following matters into consideration:- 13. The Petitioner is undeniably an unimpeachable parent. The respondent left the matrimonial home and her adultery is the cause for the breakdown of the marriage. The child prefers to live where he is and does not wish to change his school. Although the respondent would be better fitted to look after the child instead of an amah there is weighed against this factor the inconvenience of leaving his present school and his friends. In any event there is no evidence to show that he is not being properly looked after. 14. Balancing the interests of both parents I am quite satisfied that the interests of the Petitioner prevail over those of the respondent. 15. The welfare of the child being the paramount consideration I am of the opinion that it is in his best interests to remain with the Petitioner. 16. There will therefore be an order for custody of the child in favour of the Petitioner with reasonable access to the respondent. Costs against the respondent.
Representation: Mr. Rose of (Reasons) for petitioner. Mr. Cotlerill of (GHDW) for Respondent. |