Wong Yip Yuk Ping v. Wong Sze Sang, Michael

CACV000116/1985

BETWEEN

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Coram: Cons, Fuad & Kempster, JJ. A.

Dates of hearing: 17th and 18th October, 1985.

Date of delivery of judgment: 18th October, 1985.

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JUDGMENT

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Cons, J. A. :

1. In this appeal we are concerned with the custody of two children.

2. The mother and father were married in 1976. The two children were born, the daughter in August of that year and the son in December 2 years later. That is, they are now just over 9 years and just under 7 years respectively.

3. The father is a relatively successful businessman as the judge found and the mother, when she married, was clerk in a shipping company. She has continued with the firm ever since, save for the two periods when she gave birth to the two children. They have been since looked after first by a child minder and then by a domestic amah. In 1981 the father's own mother, then aged 74, moved in to help with their upbringing.

4. It may be that that move did not ease the strain which was already apparent in the marriage. The relationship deteriorated further as time went by. The father was concerned at what he thought was too close a friendship between the mother and a male colleague in the shipping company. But he in his turn formed an attachment with his secretary. Both parties, according to the judge below, are inclined to violence, and it is not surprising that by 1983 heated brawls were quite common within the family. In December of that year the mother went to stay with her own parents for a while. And the father made sure that she could not return home by changing the locks on the matrimonial doors.

5. Divorce proceedings followed. The mother presented her petition in June, on the ground that the father had behaved in such a way that she could not reasonably be expected to live with him. The father cross-petitioned in September, relying upon a similar ground. Both petitions asked for the custody of the two children. An application for interim custody, which through no fault of the parties, and despite an order made as early as July by the judge below that the matter was to be treated as one of extreme urgency, did not come on for hearing until November. It was then rejected.

6. On the 6th December the judge granted a decree nisi on both petitions. He moved on to consider the custody applications. This took some 9 days. In addition to the evidence of the witnesses, principally the father and the mother, the judge had the benefit of a personal interview with the children, whose clear preference he said was to be with their mother, and of a comprehensive report from an officer of the Social Welfare Department, whose recommendation was also in favour of the mother. Nevertheless the judge made his order in favour of the father.

7. The mother now appeals. The time that has been allowed to elapse in bringing this appeal to this Court is appalling. Yesterday morning we asked Mr. Chu Tak, who now appears for the mother, for an explanation. Eventually he was able to recite the course of events. There appears to be no particular reason for the delay, just a long sad story of dilatory conduct by all those who should instead have been assiduously pushing forward on behalf of the wife.

8. With every respect to those responsible the only viable ground of appeal is that the judge failed to take into consideration or sufficiently to take into consideration what counsel called "the working rule ..... that the custody of young children or children of tender years should normally be granted to the mother". It hardly needs saying that that is in fact a basic principle in matters of child custody. The authorities in support are legion.

9. Miss Remedios, who appears today for the father, suggests that it applies only to children considerably younger than the ones we are concerned with. With respect I do not think that is so, although naturally the age of the children is relevant. It is a factor that becomes less important as the children grow older, with a caveat perhaps, in the case of young girls approaching puberty. Its importance may perhaps also be less where the circumstances are such that the mother, for one reason or another, has not established such a close bond with the children in their infancy as she might have done. Of course it is not a rule of law. It is not even indeed a presumption. But it has become so well established that I would expect any judge, when considering custody, to take that as his starting point before turning to consider whether in the particular circumstances he should go further.

10. However, it seems to me that is the present case the judge did precisely that, although he did not specifically put it that way. He said "On the other hand" - he had been speaking of the father - "the mother can provide a mother's love. This is of great importance and when considering young children, in many cases is the decisive factor ….." A little later he added, "There are factors about the wife with which I am concerned." Those factors may be summarised very briefly. Firstly, the wife was a career woman at heart and the judge doubted whether she had a genuine sustainable desire, or the ability, to be a simple housewife. And secondly, he felt she was a woman more concerned with her own interests and pleasures than with her responsibilities to her children.

11. It is suggested that his assessment of her character was wrong, and that there was no evidence to support it. I am not persuaded that that is so. He had ample time during her long and detailed evidence to assess her character. There was moreover evidence of conduct to support his assessment. He relied on two particular matters. Firstly, her going out to work when, as he found on the evidence although there was dispute, it was not financially necessary for the sake of the family. Secondly, her meeting with the children on leaving school - that is after the break up of the marriage and when the children were living with the father - spoiling their dinners by giving them too many sweets and so on, and keeping them out when they should have been back home doing their homework with the tutors that the father had by then brought in to help.

12. The judge might have added that a responsible mother could have been expected to go the other way and ensure that whilst the children were in her charge they did at least some of their homework.

13. There are other matters in the evidence to which our attention has been drawn. The judge did not expressly rely on them, but no doubt they influenced him to some extent in his final conclusions.

14. In contrast the judge took a very favourable view of the father, saying "he has adopted a thoroughly commendable attitude seeking to do what he thinks is best for the children".

15. We have been referred to authorities which set out what should be our approach as a Court of Appeal in dealing with matters of this kind. With respect they seem to me to all come to much the same thing, each perhaps emphasizing only a different aspect of the same whole. In any event, one thing is certain, that to interfere in a matter of this kind, we must be firmly of the opinion that in some way or other the judge went wrong. For my part I am not persuaded that he did and I would dismiss the appeal.

Fuad, J. A.:

16. This appeal has caused me great anxiety. I must confess that during the early stages of the hearing I was concerned whether it could be said that there was material before the judge that justified him holding that the mother had put her own interests before those of her children. However, at the conclusion of the arguments, I am not persuaded that the judge's discretion in the matter can be interfered with, and I would therefore also dismiss the appeal.

Kempster, J. A.:

17. I too am not persuaded that the judge below has in any way been shown to have acted on a principle that we can fault or to have given undue weight to any particular consideration. Among those considerations was that of continuity, and by the time of the hearing before His Honour Judge Caird, the children had already been in the custody of the father for about a year.

In the circumstances outlined by my Lord Mr. Justice Cons, I too agree that considerations have not been advanced to this Court that would permit us to interfere with the discretion exercised below, and I too would dismiss the appeal.

Representation:

Chu Tak (Messrs. Anthony Kwan & Co) for Petitioner/Appellant

Miss Corinne D'A Remedios (Messrs. Stephen Lo & Co.) for Respondent