W v. F

FCMC809/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 809 OF 2004

BETWEEN

Coram: H H Judge Carlson in Chambers

Date of Hearing: 18 June 2004

Date of Judgment: 21 June 2004

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J U D G M E N T

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1.There is a dispute between these parents as to whether Q, who is aged four and who is the younger of their two sons, should attend the reception class of the Chinese International School (CIS) at the start of the next academic year which starts in late August this year.  As a result, I have to make the decision for them.

2.I will refer to them as the mother and the father.

3.The father, who is English, is aged 44.  He is a solicitor and has lived in Hong Kong since 1987.  He came to work for a large firm of solicitors and is currently a partner of a large firm.  His practice is in the field of corporate finance in which he has enjoyed great success.  His earnings are said to be in the region of $7 million to $10 million per annum.  As a result, the parties and their children have been able to enjoy a very comfortable way of life.  They have lacked for nothing.  Nevertheless, his position in the partnership is almost certain to change very significantly as a result of changes in its structure and his earnings are very likely to go down although, for present purposes, that does not really matter.

4.The mother is 42.  She is a Chinese American.  She was born in San Francisco and her family continue to live in the United States.  She is a graduate of the University of California, Berkeley and she also came to Hong Kong in 1987, when she was 25.  She has had a very successful career as a newspaper journalist and on radio and television.  She stopped full-time work when the parties’ first child was born.  The parties were married in England in October 1996.  They have three children: S who was born on 3 April 1998 and so he is now six; Q who is four, having been born on 3 April 2000, so they share the same birthday; and K their sister who will be two on 23 July.

5.For present purposes, a very brief history of the marriage will suffice.  The final matrimonial home, which is presently used by the father, is a spacious and well-appointed house at Sai Kung.  The parties employ two maids and a driver.  The driver would drive S and Q to their present school which is in Queen’s Road East, close to Pacific Place.  The father would also drive in with them to his offices in Central and the driver was also available, and I daresay still is, to drive the mother to and from school and for any other journey that she needs to take.  Apart from the obvious advantages of having help at home and somebody to drive the family, they have also enjoyed the other advantages that go with the father’s earnings including a house at Chamonix and in London as well as many holidays overseas and so forth.

6.Without embarking on the complexities that contribute to the break up of a marriage, it would appear that so far as the mother is concerned, the major cause has been the father’s admitted adultery with a number of women.  Attempts had been made to save the relationship in 2001 when both of them attended counselling sessions but to no avail.

7.Things came to a head late last year when the mother felt that she could not go on in view of the father’s unfaithfulness.  In March this year, she took the children with her and moved to a serviced two-bedroom flat at Parkside, Pacific Place, where the monthly rent of $68,000 is paid by the father.  He occupies the former matrimonial home at Sai Kung and he also uses a small flat that he keeps in the Hollywood Road area.  He gets regular access to the children at the weekends.

8.The divorce proceedings are still at a fairly early stage but as the father has made formal admissions of adultery, the petition is expected to proceed quickly on an undefended basis.  Custody remains contested, but a Social Welfare Officer’s report is now available and I would have thought that this issue can also fall away once a decision can be made as to whether the parties should have joint custody with care and control to the mother.  At present she is not inclined to agree to joint custody but it is very much hoped that she can be persuaded to accept that.

9.That would leave over financial provision.  The parties are represented by very experienced solicitors and counsel, and with a measure of goodwill it is to be hoped that this too can be resolved.  The assets are sufficient for that to happen.

10.So that is where the parties stand at present.  From that I now turn to this discrete but important matter.  The argument comes about in this way: both boys go to the International Montessori School in Queen’s Road East (IMS).  Before the final break up of the parties’ relationship, it seems clear to me that both the mother and the father hoped that S and Q would be able to enter CIS.  This was seen as an excellent choice for both of them, with perhaps K waiting in the wings to join her brothers in due course.  It, after all, offers an excellent all-round education and particularly for a child who wishes to be fluent in both English and Mandarin.  It is a school that tends to appeal to affluent Chinese parents who wish to have their children educated in English whilst at the same time leaving the school speaking fluent Mandarin and being able to read and write Chinese.  It is a school that would also appeal to an Anglo-Chinese family such as this.  The mother is a Mandarin speaker, in addition to English of course, and the father wishes to encourage Mandarin and Chinese fluency for all his children so that they may maximise the advantages of their background.  He too speaks Mandarin and reads and writes Chinese.

11.I am convinced that the problem has its origins from the fact that S, the eldest child, who although very bright was unable to secure a place when an application was made on his behalf.  He is a reserved boy and unfortunately the school felt unable to offer him a place.  Q on the other hand, who is a more outgoing type, has been accepted for entry in August this year.  The father’s earnest wish is that he should take the offer and he has already paid a deposit.  If he does not go up, then about $21,000 will be lost although that is not something that I am being asked to have regard to.

12.Quite apart from the positive benefits of going to a well-established and well-regarded establishment, the father also sees this as a further opportunity for S to get in next year by being given sibling preference (as it has been described) where, as the expression implies, applicants who have a brother or sister in the school will get a preference.  He frankly accepts that this is not a stated policy of the school, nor does it provide a guarantee to entry, but it does give an advantage over applicants who come “cold” to a school where demand for places is high and competition is keen.  He would also expect that S, who would then be older, would put up a better showing at the interview.

13.The present situation is that both boys are well settled at IMS.  They are happy there and making very good progress.  IMS is a new school, it started in September 2002 but seems to have acquired a good following.  It has 120 pupils at present and it wishes to develop itself into a complete primary school taking children up to the age of 12.  It no doubt hopes to keep its present crop of pupils who, if they stay, will become the first new higher classes up to the final year of primary school.  It has served these children well so far.  The mother is very happy with it and she gets on extremely well with the staff there.  Being something of a media personality, I expect the school see her as a bit of an asset and she was instrumental in producing a DVD for the school.

14.The mother’s case is that at present the brothers should not be separated at what is a very difficult period of time for them and for the family as a whole.  She is obtaining assistance from Mr S who is a psychologist and who is helping her and Q.  He has written a letter to her solicitors advising against a move at present to avoid the risk of adverse effects on Q and S.  Mr Clough who appears for the mother also adds that there are no educational advantages to be gained in making such a move; Q is doing well at IMS and at this initial stage of his education and development I should not interfere.

15.The father, who for this application has represented himself and who has put his case with great moderation and very persuasively, has drawn attention to all the obvious advantages that a highly sought after school such as CIS can give to Q and also the prospect of a real foot in the door for S next year and perhaps for K in due course.  These are powerful considerations which cannot be understated.  He says, and I paraphrase, “I hope when this is all over and if Q is left at IMS that we don’t think back and say ‘That was a lost opportunity which we now regret’.”

16.I need to balance a number of considerations in coming to a difficult decision.  These should be decisions for parents and not for judges.  Whatever I decide will leave one of them deeply disappointed and dissatisfied.  Both love their children very much.  Both in their different ways give much to them in physical and emotional terms.  These parents are, it seems to me, quite different characters and they compliment each other perfectly as parents to these children.  The children need both of them and that is why I very much hope that the question of joint custody can be resolved with generous access to the father.

17.In respect of this issue, I need to do what is in Q’s best interests.  That does not mean I take him in isolation.  Many factors impact on his best interests.  Firstly, his relationship with his brother and sister.  So far as K is concerned, I do not think her position will be affected at all.  She is not two yet and her relationship and contact with her brothers will not change whatever I decide to do.  In respect of quality of schooling for a four year old like Q, I would not have thought that in terms of quality at this stage there would not be any meaningful difference.  IMS is perfectly good; the mother would say it is more than just perfectly good.

18.The real issues are the question of separation of the brothers and possible lost opportunities in the future for entry to CIS by S and K, although in her case this is not really relevant at present.

19.I have no doubt Q would enjoy himself and settle into CIS.  Four year olds are very adaptable and resilient.  Would he miss his brother?  Probably at first, but they would get used to that.  What would the impact be on S?  He has settled in at IMS and he has got his friends and is doing well.  He would get over any initial anxieties and they would have plenty to say to each other at the end of the school day when they get home in the afternoon.  In any event, they are in separate classrooms, or will be next year at IMS.  I suppose the point is that they will have the comfort of knowing that they are in the same building.  But overall, I think it has been demonstrated that in terms of cold analysis the case for a move by Q is a highly persuasive one.

20.But I need to consider the mother’s position.  She is the primary carer and I would have thought that that will be the case after all of this litigation is over and done with.  The strength of her feelings, that it should be IMS and not CIS for the two boys, is not one that is borne out of malice - she is not doing it just to get her own way and score a win over the father, of that I am convinced - even though in happier times CIS had been jointly considered as the likely option.  She has warm feelings for IMS.  Had I thought that she was being bloody-minded, I would not have felt able to weigh her wishes in this decision.

21.I am satisfied that IMS provides a good education for the children at this stage of their lives.  If I move Q, she is going to be very unhappy to the point, I believe, of being resentful.  Those feelings will work their way to the children, which may affect their happiness and stability.  This is a consideration that I am bound to have considerable regard to.  It is not a case of saying, “Well, the mother is going to be much more upset than the father, so I will do what the mother wishes.”  That would amount to a dereliction of the judicial function.  It is a question of weighing all the factors that will impact on Q, either directly or, on him, through its effects on his brother and sister and on his mother with whom he spends most of his time.

22.And so whereas the father has won the intellectual argument, I still do not consider the proposed move to CIS to be in Q’s best interests at present.  As I had indicated in the course of the argument, this dispute has arisen at the worst possible time in the litigation cycle of this case.  Hackles are up, swords are drawn, and a change in Q’s situation will, I believe, make matters worse.

23.For these diverse reasons therefore I am going to refuse this application.  He will continue to thrive at IMS.  There is no pressing need for a move.  I am sorry that he will have to let this place go, but that will not necessarily mean that CIS is a closed shop for these children in the future although I do accept that it will make it more difficult for both of them in making an application next year or the year after that.  This has been one factor amongst a number that I have had to weigh, but for all the reasons that I have attempted to provide, the scales have fallen the other way.

24.I hope that the mother will not see this as a victory in an adversarial process and that once things have settled down she may wish to consider CIS for both boys provided of course places are available.

Present:  Mr Neal Clough, instructed by Messrs Chaine, Chow & Barbara Hung, for the Petitioner

Respondent, in person

Present:  Miss J Ip, of Messrs Chaine, Chow & Barbara Hung, for the Petitioner

Respondent, in person