C.(W.Y.)

HCMP000840/1985

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BETWEEN

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Coram: Mantell, J. in Chambers.

Date of hearing: 14th May, 1985.

Date of delivery of Judgment: 14th May, 1985.

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JUDGMENT

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1. In this matter divorce proceedings between the parties are contemplated but have not yet been commenced. In the meantime Madam C.P.(C.P.) and C.(Y.W.), being husband and wife, have separated and their two young children made wards of court. This is an application by the wife for an interim order giving her the care and control of the wards and for such interim financial provision as is deemed just or appropriate.

2. The parties separated under the terms of an agreement by which the husband was to have the care and control of the two children but the wife in her affirmation discloses that she entered into that agreement knowing that it could be overridden by the courts in the interests of the children. That does her no credit at all, of course, but never theless in her conception of the law she was not wrong or, at least, not entirely wrong in that the fact that the parties have made an agreement may be a material matter to be taken into account, other things being equal, but the welfare of the children remains the paramount consideration.

3. The question of interim care and control has up until today been contested and for that reason I asked for the assistance of Mrs. Tsang, the Social Welfare Officer, who has provided me with two careful reports. In the first of them put before me on the previous hearing Mrs. Tsang found it difficult to make a recommendation one way or the other but after some hesitation concluded that it was in the best interests of the children that they should go to father provided he moved back to live with his parents so that the paternal grand-mother, in particular, could give the children the supervision that they required when he was at work. On that occasion, I said that I was inclined to accept the recommendation provided that I could be sure that father had moved back with his parents which at that time had not yet happened. So the matter was adjourned. And I think the expectation was that at the further adjourned hearing I would make an order giving interim care and control to father. In the event and in the meantime it has been discovered that most unhappily both father's parents are tuberculosis sufferers and certainly in the case of mother the disease is in an active state and could be transmitted to the children. Very sensibly and very commendably, therefore, father has seen the wisdom in Mrs. Tsang's latest recommendation which in the circumstances and on an interim basis is that the children should remain with mother. I applaud his attitude which shows a responsible and concerned interest for the children. So the question of care and control really can only be decided one way provided I am satisfied that mother is in a position to look after the children and on the strength of Mrs. Tsang's report I am. Therefore I make an interim order that mother should have the interim care and control of these two children who will remain wards of court. It ought to be known that either party can come back to the court at any time if there have been changes of circumstances which warrant it and make further application.

That leaves the question of maintenance for the children. The household expenses disclosed in Madam C.'s affirmation of 19th April come to $4,200 in total. That includes items which are exclusively for the benefit of the children and some items which, of course, are for the benefit of the children and also for Madam C. : for example, mortgage payments on the house, the food bill, the rates, the gas, water, telephone and electricity. Mr. Lam says that some discount ought to be made for that. That is not an unreasonable attitude but the fact of the matter is that Madam C. is not working at the moment and if she did work someone would have to be paid to look after the children. I think the fact that for the time being she is necessarily looking after the children is a matter which I can take into account on an interim basis bearing in mind that there will no doubt be an application for interim maintenance by the wife when it will be possible to make any adjustment which the justice of the case may seem to require. I am told on the evidence of the husband that the wife has considerable savings, but I think it would be wrong to proceed at this interim stage on that basis even though it is not contradicted on affirmation. Once again it seems to me that my immediate concern must be to make sure that these children are properly provided for. And if it turns out of the end of the day that the husband has made a greater contribution than was right in the circumstances some adjustment can be made. So what I propose to do is to order that for each of these two children the husband, Mr. C. will pay maintenance at the rate of HK$2,000 a month. Such payments will run from 1st May. The first payment will become due immediately and the second on 1st June and thereafter on the 1st of each month payable in advance. I remit any arrears of the voluntary payments for April. Well, because of the medical problem which I have referred to and only for that reason I am going to vary the terms of access to whole day access on Sunday from 9.00 a.m. in the morning to 8.00 p.m. in the evening. Father is to collect the children from where they are and to return them promptly. And he is not to allow close contact between the children and grand-parents. I am sorry about that last matter but L think that until L have further evidence on the medical aspect the children and grand-parents will have to be kept very separate. No order as to costs. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Miss Alice Mok instructed by Victoria Y. Chan & Co. for Plaintiff.

Johnson Lam instructed by K.Y. Woo & Co. for Defendant.