Lilian Wing Yee Chun Lo v. Daniel Pong Hing Lo

HCMC000072/1981

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

________

Coram: Hon. Liu J.

Date of Hearing:  4th April 1985

Date of Delivery of Decision: 4th April 1985

__________

DECISION

__________

1. This is an exceedingly important matter, important because it concerns the well-being of a child of the petitioner and the respondent. I will hereafter call them "the mother" and "the father" respectively. The law is well settled. The merit of these proceedings are, if I may say so, fairly lopsided. Thus I find myself able to immediately deliver my reasons in support of the decision I am about to announce in a moment or two. Throughout these proceedings, I have constantly given this matter very hard thought. I would not wish my decision given extempore on a question as crucial as a child's custody to appear lacking in concerned and careful consideration.

2. As in most cases of divorce, the marriage in this case came to a sad end after the parties returned from Canada to Hong Kong. There can be no doubt that the grandfather had made a great effort to try to salvage the relationship which was then on the verge of a complete breakdown. Needless for me to say that the grandfather's effort was fruitless, hence the divorce.

3. The Parties were reasonably amicable in the beginning. A Consent Order was sensibly caused to be made at the request and with the blessings of both. Financial matters were readily disposed of. Questions concerning the child of the family were resolved to the satisfaction of the father and the mother as well as to that of the court. The Consent Order was made, I believe, on the 12th July 1982.

4. Subsequent to that Consent Order in 1982, arrangements between the parties turned from bad to worse. It is difficult to attach any real blame to any one party. I have no doubt that in the course of conflict between the father and the mother revolving around the questions of monetary settlement and the upbringing of the child of the family, the grandparents had again put in their very best effort in an attempt to make arrangements between these parties to a broken marriage workable. There were accusations made by one against the other. The grandparents were, from time to time, also involved. It is immensely difficult for me to try to resolve the factual disputes between the father and the mother, coupled with certain assertions made in the affirmation of the grandfathers. To my relief, and I believe counsel share my analysis, these factual disputes play less than a dominant role in the ultimate determination of the question of custody.

5. In order to explain my decision, perhaps it would not be out of place for me to say at once that I would come to a decision adverse to the father even accepting all his allegations. I would assume therefore, without deciding on these matters in the absence of cross-examination, that the mother conducted herself or reacted in the manner she had allegedly behaved. To highlight the assertions, I am prepared to assume that it was the mother's responsibility for the breakdown of liaison, for the apparent withdrawal of care and support by the father and the grandparents and for the almost complete loss of communication between the child in question and her grandparents and the father. I am equally prepared to assume, despite the affidavit evidence of the amah, that the other allegations against the petitioner are all well grounded. Likewise, I will assume that the father is and has been genuinely without means and that despite his re-marriage soon after his departure from Hong Kong, his care and affection for the child in question has never for any moment diminished. I do not propose to go through all the allegations against the mother, with some contained in the assertions of the grandfather.

6. One matter which stands out as consensus in the midst of deadlock is the care and control exercisable by the mother as given to her by the Consent Order of the 12th July 1982, which has not been sought to be disturbed. In fact, in the course of her able submissions, Miss Leong categorically intimated that the father is not raising any opposition to care and control of this child of the family to remain in the hands of the mother. That being so, whoever is to blame for the total lack of co-operation, to say the least, between the two joint custodians of the child, the situation has proved to be simply unacceptable and unworkable. The sole consideration is the welfare of the child. The joint custody must go, and custody must be solely entrusted to the one with care and control.

7. I am sure that the antagonism from each of the parties to these proceedings has not been deliberate. It is understandable that subconsciously each party would, without much thought, jump to the conclusion that the other party is in the wrong. For a matrimonial relationship which, I think both parties would agree, was less than perfect, the parting of the father and the mother at the end of their marriage cannot be described as wholly uneventful. All these must have generated sufficient animosity to colour each side's views in more respects than one, including the management of the affairs for the benefit and welfare of the child. There is much to be said for the observation of Lord Justice Ormrod, as he then was, made in the case of S(BD) v. S(DJ)⁽¹⁾ that no parent is above criticism. That observation is all more appropriate in the case of parents out of a matrimonial disharmony.

8. The court is therefore faced with the situation of non co-operation between the father and the mother with care and control left unchallenged in the hands of the mother. I have stated, I hope, the obvious that in these circumstances, the parent who enjoys care and control should have custody. There are no other co-existing circumstances which militate against this commonsense conclusion. First of all, the child is a young daughter whose custody should best go to her mother. The father has now lefted Hong Kong for good. He has resigned from his post in Hong Kong. He has since re-married and now lives with his new wife in Vancouver. His absence from jurisdiction is a major factor to be taken into consideration. In S. v. S., ⁽²⁾ Lord Justice Sachs stressed the importance of the concept of undivided authority in the daily life of a child of a broken marriage. Moreover, I must not overlook the general reluctance of the courts to grant or endorse spilt orders unless the advantages demonstrably outweigh the inherent disadvantages. I have also been referred to Jussa v. Jussa⁽³⁾ and Dipper v. Dipper.⁽⁴⁾

9. As a matter of fact, spilt orders are only a recent invention in our divorce law. As late as 1964, Mr. Justice Karminski in Clissold v. Clissold⁽⁵⁾ remarked that he was for the first time invited to sanction a spilt order. The learned judge declined the invitation on two grounds: He was of the view that a spilt order would lead to disputes which would constantly bring the party back to court. He also felt that the proposed spilt order in that case was nothing more than "a face-saving device". In the affairs of care and upbringing of a child, there are evidently countless aspects on which decision will have to be instantly made. In his endeavour to assist the court, Mr. Fung could cite as examples not more than two matters, schooling and possible future medical emergency. Despite counsel's conservative adherence to these two main themes, there can be no doubt that the day to day life of the child in question would involve an inexhaustive list of diversified topics e.g. selection of amah, choice of doctors, religion etc. It is difficult to have them a11 enumerated. In S. v. S. (supra), Lord Justice Danckwerts was only too aware of the practical obstacle to ready consultation with an overseas father on these wide-ranging subjects.

10. We are reminded by Sir George Baker, sitting as the President in the case of Jussa v. Jussa at page 886H, that the court must select an order which "will best promote the welfare of the infant". Total lack of co-operation between the father and the mother, perpetual absence of the father from jurisdiction and the undesirability of having more than one voice in the running of the daily affairs of the child fortify the need for the removal of the spilt order, though granted by consent but at a time when the parties seemed to be amicable and the device had yet to be tried. The father was then unattached and gainfully employed within jurisdiction. All this has now changed. Wherever lay the source of a11 the irritations between the father, the grandparents and the mother, the welfare of the child can best be served by reinstating one single authority in her daily life. Care and control are with the mother. It would be unwise to disturb the status quo, particularly when the child is merely coming to five in May. Very sensibly the father, as reflected in the submissions of Miss Leong, appeared to be content to leave actual care and control with the mother. No conclusion other than that of granting legal custody solely to the mother is open to the court in these circumstances. Therefore, I would not wish anything I have said to be thought to be critical of the mother, the father or the grandparents.

11. I cannot accept the submission that making the mother/ applicant a sole custodial parent would bring about any severance of link between the father and the child. Undivided legal custody has certain consequences. It will, inter alia, facilitate the management of affairs for the welfare and benefit of the child. It would enable immediate decisions in relation to those matters to be promptly and expeditiously made. But, as it was well said by Lord Justice Cumming-Bruce in Dipper v. Dipper,⁽⁴⁾ the parent without custodial status is entitled "to know and be consulted about the future education of the child and any other major matters". If the father disagreed with the course proposed or decided by the mother as the custodial parent, he would have a right to  resort to court for guidance. By vesting sole legal custody in the mother; it would not thus prevent the father from making a real contribution to the upbringing of the child of the family. Naturally, for any challenge sought to be made to decisions made or to be made by the mother, good cause will have to be shown.

12. I am driver to the conclusion that the application of the mother must, in the circumstances, be acceded to.

13. I turn next to prayer (b) which is concerned more with means than care and control of the child which the mother already possesses and now retains. Ascertainment of means should best be postponed until the determination of the other summonses to come.

14. As for prayer (c), it is highly desirable that the mother should be given general liberty to remove the child out of jurisdiction for a period of not more than 14 days on two undertakings: She must undertake (1) to return the child within jurisdiction at the end of each vacation and (2) to hand over the travel documents of the child to the appropriate authority immediately upon her return to Hong Kong. Terms of the order and these undertakings are to be settled by counsel for my approval.

15. As for prayer (d), that is obviously incidental to prayer (c). I would be prepared to assist the mother to apply for a release, renewal or extension of the child's passport or to apply for any other necessary travel documents required for any particular journey.

16. Subject to what counsel have to say, I propose to award costs against the father.

17. Miss Leong wishes to make no further submission on costs. Therefore, costs of the application be for the mother. In order to put the matter beyond doubt, I am not prepared to grant sole legal custody to the mother unless she is willing to give the two undertakings I have indicated and also unless she further undertakes to give a quarterly report to the father under three headings of health, education and activity including the child's out of jurisdiction visits, and in such a quarterly report, information under each head should not be less than 5 sentences.

(1)    [1977] Fam. 109 at 115H

(2)    (1968) 112 Sol. Jo. p.294

(3)    [1972] 1 W.L.R. 881

(4)    [1980] 2 A.E.R. 722

(4)    [1980] 2 A.E.R. 722 at p.733b.

(5)    (1964) 108 Sol. Jo. p.220

Representation:

Mr. A. Fung instructed by M/S Shea & Co. for the Petitioner.

Miss J. Leong instructed by M/S Yu, Tsang & Leong for the Respondent.