L v. L

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DIVORCE JURISDICTION

SUIT NO. 7902 OF 1996

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Coram: His Honour Judge de SOUZA in Chambers

Date of Hearing: 7 May 1997

Date of Decision: 9 May 1997

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J U D G M E N T

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1.This is an application for interim custody by the Respondent wife. For convenience, I shall refer to the parties being the Petitioner and Respondent as the husband and wife respectively.

2.As to background, the parties were married on 15th October 1986 in Hong Kong. There is a sole child of the family, a daughter LWY being born on 9th January 1996; she is currently 15 months and barely out of babyhood. It is in respect of her that the proceedings have been conducted to resolve the identity of the custodial parent on an interim basis. The marriage between the husband and wife ran into difficulties and in August of last year, the husband petitioned for dissolution alleging unreasonable behaviour on the part of his spouse. The wife filed a Form 4 in September of the same year, giving notice of intention to defend the suit. Since then she has filed her Answer and Cross Petition, alleging unreasonable behaviour on the part of the husband as well. The divorce has yet to be set down for hearing.

3.In mounting her case for interim custody, care and control of the daughter, the wife has filed three affirmations, the last being filed on 23rd April 1997. The effect of her evidence taken as a whole is as follows.

4.She left the former matrimonial home situated in Sham Tseng, New Territories in June 1996. By April of the same year the daughter had already been placed in the care of the husband's mother at her flat at Tsing Yi. That arrangement was by design. Whilst the wife was still residing at the former matrimonial home between April and June 1996, she would collect the baby home for weekends. She says that she discharged her duty as a mother whenever the child was returned to her care. She does of course accept that the husband had also played a part although he, according to her, had work of his own to attend to. Whatever failings that she might have had as a wife she says that she had always acted responsibly and dutifully towards the child. Of that I have no doubt. I have also no doubt that the father in this case (and for that matter his own mother as well) have also acted in a responsible fashion in caring for and supervising this young child. That the child has received more than adequate care, love and concern from all concerned to date is not a matter of controversy. After June 1996 when the wife left the former matrimonial home never to return, the child remained resident at Tsing Yi. She remains there to this day.

5.The wife explains that she would visit the child on a daily basis and that she has had no difficulty seeing her except for a period of about 1 1/2 months when there were horrendous difficulties over access which ultimately resulted in an application to this Court. That matter was resolved on 4th October 1996 when I ordered that the wife be given reasonable daily access to the child. Pursuant to that order, the wife has been able to visit her daughter daily for two or three hours. She is, however, not permitted to take the child out of the flat at Tsing Yi.

6.The evidence has disclosed that there was a number of incidents which have been described quite succinctly in the chronology of events put in for the purpose of the hearing. Those incidents were the McDonald's Restaurant incident on 23rd August 1996 and two occurrences in August and September of the same year at the Tsing Yi flat and at the Tsing Yi Garden Restaurant. There has been no factual resolution as to what occurred on those occasions and no factual resolution need be made for the purpose of adjudicating upon the merits of the current application. Those incidents do highlight the strength of ill feelings between the parties. They demonstrate that the husband and his family on the one hand and the wife on the other do treat each other with the greatest distrust. All that did not bode well for the child in my view. If the relationship had been accommodating, I have no doubt that the wife would have had greater access to the daughter hitherto. She would at least not have had to come to Court for a definitive order over access. I say no more than that in this regard.

7.During access, and this applies even after my order of October 1996, the wife complains that the atmosphere in which she could see the child was not the best that could be devised. At pg. 10 of the Notes of Proceedings, she made the following remarks which I quote in extenso :

"I was not able to take the baby out during the visits when I was visiting I played with her and pay attention to whether change is needed and if so I would change them. I would also feed her. When she was thirsty I gave her water and milk sometimes. I was not permitted to prepare her meals at the grandmother's home. Sometimes when I requested to feed the child with congee I was told child already had food and therefore not able to do so. I want to spend more time with the baby but that is not my home and sometimes it is inconvenient; lots of things I could not do and when baby fell asleep I had nothing to do so I left. When I say it is inconvenient, I mean, for example, I could not use the toilet though I had to spend quite a lot of time there. If I am thirsty I had no water to drink. Sometimes the grandmother appeared to be not very happy".

9.Her sense of frustration is palpable in my view.

10.At this point I would digress briefly. Despite the wife reservations about the adequacy of care offered to the child and the suitability of Tsing Yi as a safe home environment, I am quite satisfied that there is no substance in these worries. The child has obviously benefited from the nurturing provided by the husband and the grandmother. The photographs which the wife exhibited in this context really do not support the case of the child being accommodated in an unsafe or possibly dangerous living environment.

11.As for the future, the wife testified that she plans to marry Mr Lee who she says has great concern and affection for her daughter. Her evidence has been that he would accompany her on the daily visits although he would not be permitted to go upstairs to the flat or to see the child.

12.Mr Lee also gave evidence. He spoke of his concern for his intended future wife and I am quite satisfied that his desire to play an active role in the child's future upbringing is genuine enough. He stands by the wife and is supportive of her application. He is also willing to assist with the upbringing and supervision of the child in the future although he does accept and conceded that his contribution must necessarily be limited since he works shift hours as a policeman.

13.The wife is able to offer a comfortable and clean home for her daughter. She gave evidence that there are nearby parks to which the child can be taken for amusement and exercise. The photographs which she produced showing her home and the rooftop are further evidence of the availability of adequate space for the child to grow up and frolick in. She deals more specifically with this aspect of her case at paragraph 21of her latest affidavit which appears at pg. 62 of the Bundle of Documents. She describes her home as having three rooms. She occupies one of the bedrooms in which a baby cot has already been furnished. The flat is situated in Fanling in the New Territories. Mr Lee occupies another room and the third room is taken up by a full-time Filipina maid who she says does the shopping. As far her evidence goes, the flat should be a suitable home for the child.

14.I turn then to deal with the nature of her work. She deals with that at paragraph 22 of the same affidavit which she enlarged upon in evidence. She describes her work as being home oriented at pg. 13 of the Notes of Proceedings. That is what she had to say : "I am involved in trading business. I have started it for three to four years. I am my own proprietor. I said in my 3rd affidavit at paragraph 22 that I do not have to work out of the home. I do not have to leave home to see clients because I do not have many clients in Hong Kong. I have developed long term relationship with my clients so I can do everything through computer, fax courier. When client places an order it is done by fax and I would fax order for purchase of goods. When the goods arrive I arrange for transportation workers to transport the good which are materials for electronic products. I do not need to go out to maintain clients. If I am granted interim custody I would look after the child full-time". It is, therefore, clear from her case that she is able to offer to the child her time, attention and energy. There is no doubt in my mind that the arrangement now proposed is feasible. The question of course remains whether or not the daughter should be moved back to her full-time care and whether such a move would be consistent with her paramount welfare interests.

15.In furtherance of her case, the wife has also made enquiries concerning the future educational needs of the child. That is dealt with in paragraph 25 of the same affidavit. She has made detailed enquiries about nursery classes in the area and has shortlisted two kindergartens, the details of which have been provided in that affidavit. She proposes when the time comes to personally see to the child's daily needs and to send the child to school and collect her home herself. That she would effectively be the principal carer is clear from her evidence as a whole. The maid is there only to provide backup support as indeed would Mr Lee.

16.If custody is given to her, she would be amendable to giving generous daily access not only to the husband but also to his mother and other family members. She also offers the husband alternate week staying access. As an indication of her concern for the general welfare of the child, she commented on the desirability of maintaining the relationship which the child now enjoys with her father and his side of the family.

17.I now deal with the husband's case.

18.He has filed 2 affidavits. He is a technical officer who works nine to give and alternate Saturdays. There are occasions every few months or so when an emergency would see him working overtime but those are not frequent occurrences.

19.The husband has confirmed that since April 1996 the principal burden of child care has fallen squarely on the shoulders of his mother. However, when he goes off work every evening and at weekends he would take over the responsibility of caring for his daughter. He describes spending a great deal of time, and quality time at that, with his young daughter.

20.The evidence, which I am satisfied remains uncontradicted, shows that in the evenings and when he is off duty the husband does bathe, feed and play with his daughter. It is quite clear in my view that he has been able to discharge his parental duty with a great deal of success to date. He says that his mother only looks after his daughter and no one else at home. There was some suggestion during the course of the hearing from the wife that perhaps the mother in law might have been looking after other grandchildren or young relations as well but that really has not been established in my view.

21.The husband proposes that there should be no change in the status quo. He, however, accepts that perhaps Mr Lee should also be offered access in the future. In response to the wife's generous offer of access, he now stands willing to give the wife staying access as well. The husband has also made enquiries about kindergarten placements and is likely enrol his daughter in the better of the two kindergartens near his home.

22.I am satisfied that the home environment and the availability of recreational facilities at Tsing Yi have augured well for the child. I am also satisfied that the situation currently obtaining is a suitable arrangement. I am equally satisfied to find that the paternal grandmother and the child do enjoy a close and affectionate relationship and that the child is particularly attached to her father. I have not had the benefit of hearing from the paternal grandmother but the significant role that she has played up to now has been adequately demonstrated on the evidence.

23.I now turn finally to deal with the evidence of the social welfare officer. Miss Cheung has compiled one report dated 19th December 1996. In all, she has paid five visits to the husband's home in Tsing Yi. The last one took place on 28th April 1997, just 2 days before the hearing. That was a surprise visit and it occurred at 4 pm. The purpose was to observe, in the words of Miss Cheung, "the interaction between the mother and baby" and "to update on the situation". On that visit Miss Cheung's saw no significant change in the situation or anything different so as to cause a re-appraisal of her recommendation. That visit lasted one hour. Prior visits had been on notice.

24.In cross-examination, the wife presented her with a number of photographs collectively produced as R 1 (a) to (e). Those photographs are of the wife's home in Fanling. Miss Cheung confirmed that she had visited the wife's home a few months previously but really had little recollection of what it was like. She said that she had not been to the roof when questioned about whether or not that would provide added space for the child to pay. The photographs in question clearly demonstrate an available comfortable, if not compact, home for the daughter. When further pressed on the issue, Miss Cheung testified that in her view there was little to choose between the physical environment offered by the wife and the current home of the child. They are approximately of the same size. It is of course accepted that the husband resides with three other adults at his flat. But that is not a matter which is of any significance to Miss Cheung and neither is it to me.

25.As for the relationship that has developed between the wife and Mr Lee, the case worker professed to having no negative feelings in that regard. She is aware that they are courting, a fact disclosed by the wife herself. As to the prospect of Mr lee becoming actively involved in the future care and upbringing of the child Miss Cheung does have some reservation. She commented that she has never seen Mr Lee and the child together or relating in any way. In her view, Mr Lee will be a stranger to the child. She was asked by Mrs. Remedios for the wife whether Mr Lee and her client as a nuclear family could provide an equally suitable and workable alternative home for the child. Her answer appears at pg. 4 of the Notes of Proceedings. She said : "the little baby has to adjust to a newcomer. I do not know how". Later on in the evidence she further explained her reservation to a change in the status quo in these words. They appear at pg. 5 and 6 of the Notes of Proceedings. As her views are most clearly encapsulated in that part of the evidence I propose to quote what she said fully.

"Your honour, I have spent considerable time considering if the child would be better with the mother or with long term carer, the grandmother. I have read some books particularly child psychologists'. Many people's views from psychologists is very important for infant aged child to be with either parent if the child looked after by the natural parent all along. Here the child looked after by the grandmother all along since the age of three months. When father went off work he spends quality time together with the child. I have no doubt about father's concern and love for the child because I saw how he looked after the child. Although he has job, he spent his time with the child after he knocked off. In the day time the paternal grandmother looks after the child and in a very good way and child's development in terms of language and movement is good. When I was preparing the report I was thinking that the change of carer when this child is so young might have negative effect on the child. My view of that supported by psychologists' books. Considering child's welfare being paramount, I stated in the report that the present situation should be maintained".

27.I digress here to comment that that view has been adhered to. Miss Cheung further said "and in the day time mother is visiting the child and she has the chance to develop relationship with the child. When child is older to the stage when we do not have to pay much attention to negative effect created by the change of carer and if mother applies to be carer, then we would give such consideration to that". At pg. 8 of the Notes of Proceedings she continues : "I think maintaining child's status quo is in the best interest of the child at this time".

28.Her evidence confirms that the wife had been visiting the child regularly and that she has had the opportunity to foster and develop a close rapport with her. That the mother-daughter relationship is enjoyable and successful has also been confirmed. The wife in this case is clearly not a stranger to her daughter.

29.Miss Cheung, in my view, has placed excessive emphasis on the fact of status quo. Status quo may in certain circumstances be particularly pertinent, but in all custody and access disputes it must remain a factor for consideration along with other matters which have to be placed in the scale and weighed up. It is quite apparent in my judgment that Miss Cheung in her report and her ensuing evidence given in Court is clearly not appreciative of the fact that her recommendation would rob the child of her right to a close, constant and intimate contact with her natural mother for the greater part of her day. The importance and obvious benefit to a child in its formative years of being nurtured, cultivated and cared for by its own parents as distinct from a third party carer, a close relative notwithstanding, has largely been ignored by Miss Cheung. I have no doubt that the grandmother has been and will continue to be a competent and loving companion and provider of the child's need on a day-to-day basis. But she remains by necessity a parent substitute. She will in the circumstances of this case never be able to provide, in my judgment, what a child can only find in its natural parent, however successful she might have been in looking after her grandchild in the past.

30.Miss Cheung has, with the greatest respect, permitted herself to unduly influenced by what she considers to be the negative effect of returning the child to the care of her mother at this point. Children are resilient to changes. The younger they are, the less cognitive of and the more tolerant they may be to changes of living environment and the identity of their carer. The child clearly bonds well with her mother who now stands able and willing to take up her responsibility as a parent full time. The social welfare recommendation does not permit that to take place. I see no valid reason why this proposed change of child care arrangement is not feasible and beneficial to the child. A change at this stage in the young life of the child would be less traumatic, if there be any trauma at all, since the father, the grandmother and other relatives would be permitted to visit daily if they so wished than would be the case when she starts play school or kindergarten. By that time this young child would inevitably have become so settled in her environment that a move would be even less desirable and more disturbing.

31.Being guided as I invariably must be by the primacy of the welfare interest of the child in question, and having listened very carefully to Miss Cheung's evidence and having weighed up her recommendation and the reasons given therefore, on the evidence adduced, I am firmly of the view that this young daughter of such tender years should be with her mother. Of that I have not the slightest doubt. With the greatest respect to Miss Cheung who has placed excessive emphasis on status quo and on the possibility of detriment flowing from a change in the identity of the carer, it is my judgment that the welfare interest of this child is consistent and consistent only if she were to be returned to the loving care and full-time attention of her mother. The situation would be very different if the husband were himself able to provide the same level and quality of care. If that were to be the case I would be most slow to alter the status quo, but the evidence such as it is necessarily leads to the conclusion that I have reached. My orders follow.