Y v. T

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5203 OF 2005

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BETWEEN

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Coram: Deputy District Judge S. D'Almada Remedios in Chambers (not pen to public)

Dates of Hearing: 10 April and 26 April 2006

Date of Judgment: 27 May 2006

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JUDGMENT

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1.The hearing before this court concerns the application made by both the mother and the father respectively for custody of the two children of the family.  Both parents seek sole custody of the children. 

2.The two children of the family are a daughter now aged nine and a son aged seven.  They are presently residing with the mother at an address which is confidential.

3.The parties married in Hong Kong on 8 March 2002.  The children were born outside of wedlock to the parties.  The petition for divorce was filed by the mother on 12 May 2005 on the ground of the father's unreasonable behaviour.  A decree nisi of divorce was granted on 23 September 2005.

4.The parties met in Hong Kong in 1993.  At that time the mother visited Hong Kong under a double entry permit.  Whilst the mother was in Hong Kong she cohabitated with the father.  The mother was granted a single entry permit to Hong Kong in May 1996.  The children were born within their cohabitation.  In 2002 the parties got married. 

5.The mother stated that she had serious conflicts with the father.  She stated that he was a man of violent character who would beat her and the daughter to vent his anger.  During the marriage she had taken shelter once at a friend's home and three times at a woman's refuge home.  Eventually as a result of being beaten by the father in or about February 2005, the mother left the matrimonial home with the two children.

6.After the mother arrived in Hong Kong in May 1996 under a single entry permit she was a full-time housewife.  The father worked as a construction site worker upon his arrival in Hong Kong in 1976 until he was injured in a traffic accident in 1994.  Thereafter, he did not return to the workforce.

7.The mother and children now live in a self-contained two-bedroom private sector apartment measuring about 30 square metres.  The two children share a bedroom whilst the mother occupies the other.  The two children attend primary school and share the same daily routine.  The mother is a full-time housewife who escorts the children to and from school on foot.  The mother provides study guidance to them during the week and takes them out during the weekend for fun.  They are relying on comprehensive social security assistance for their living.

8.The father has been unemployed since his traffic accident and depends on comprehensive social security assistance for his living.  He resides on a rooftop of a building in a unit measuring around 12 square metres.  It is simply furnished with a double sized bunk bed, a low cabinet and a folding table.  Cooking is done within the toilet.  The father rises at about 5 a.m. and spends his time in parks and shopping malls during the day.  He returns home at around 6 p.m. prepares his dinner and goes to bed at about 11 p.m.

9.The daughter is an active girl and has a wide range of interests from sports and dancing to reading and drawing.  She obtained an average academic standard at school.  The son is suffering from a disease known as favism, a hereditary allergic condition that causes a severe reaction upon the ingestion of beans.  He lacks motivation for study, but has been arranged to attend study guidance class weekly by his schoolteacher.  Since then his performance has progressed.

10.The father blames the mother for breaking up the family and separating himself from the children.  He was shocked and disappointed at the manner in which the mother and children left the matrimonial home.  He says that having left the matrimonial home in the morning and returning there later in the evening there was no sign of the children or the mother.  She had left a personal handwritten note on the table in the matrimonial home informing him of their departure.  They had not fought or quarrelled that day.  Despite attempting to locate the children at their school, he was told by the headmistress that they children had already changed school.  He was deeply saddened as all his family members had essentially disappeared within 24 hours. 

11.The mother's reason for her departure from the matrimonial home is pleaded in the petition.  That is that it was as a result of his unreasonable behaviour as particularised therein. 

12.There was a breakdown in this marriage.  The father is now living separate and apart from the mother and children and has been so doing for at least a year since February 2005. 

13.The court had called for a social investigation report on the question of custody.  In the report the social welfare officer (SWO) recommended that custody of the two children be granted to the mother with reasonable access be granted to the father and a supervision order for 12 months be imposed.

14.The father challenged the SWO's recommendation.  The father says that the SWO only arranged with him to see the children on one occasion, he queries how she can write such a detailed report on such little information and therefore disagrees with her recommendation.  It is his view that the SWO only came to her conclusion as his house was too small.  He says that when she went over to his house and looked around she said as it was too small so she would recommend the custody of the children be granted to the mother. 

15.The father's case is that he had a very unhappy childhood as his father had left the family.  He does not wish to live apart from his children.  His children he says think he has abandoned them.  He wishes to show them he has not done so and thus wishes to live with them.  He does not want to see his children living the same sad life as he did growing up without his father. 

16.Further he has concerns that the mother will re-marry again.  The father highlights that his marriage to the mother was her third and it is very likely that she will remarry.  He does not want the children to have unhappy experiences in having to live with a stepfather as he did when he was a child, hence he does not wish them to be living with or to be brought up by a stepfather. 

17.He has no confidence that the mother can bring up these children as she has shown she is incapable of bringing up her child properly from a previous marriage.  That child is a son now aged 24 years.  It is his case that the mother did not bring him up properly as the son is not gainfully employed and smokes. 

18.He does not believe that the mother can look after the children as she engages her time in gambling.  He alleges that after the mother left the matrimonial home debt collectors came there to harass and threaten him to repay the mother's mah-jong debts.  They also went to do the same to his own father. 

19.It is his case that his relationship with the children have deteriorated as the mother is influencing the children against him since they had moved out of the matrimonial home. What the children allegedly say about him is incorrect and not their true feelings. 

20.Whilst giving evidence in court the father was overwhelmed with emotions in stating his case, he broke down in tears.  He stated he was sad, miserable and distraught about the break up of his family and his separation from his children.  He mentioned that if he could not make things his way he would take his own life.  The court informed him that taking his own life was not a solution to his difficulties and advised him to seek professional counselling. 

21.As to the allegation of him being violent, the father explained that as he was sad, he was emotional and impulsive.  He could however control his emotions and temper.  When put to him under cross-examination by the mother's lawyer, Miss Chiu about his violence, he accepted that he had once beaten his daughter on her birthday.  He explained that the mother had bought the daughter a Game Boy, (a toy) for her birthday.  The younger brother had attempted to snatch it away from her to play, so the daughter hit the brother.  Despite the father telling her not to do it she would not listen to him and thus as a result he used a hangar to hit her buttocks.  He said he himself felt pain when doing this to her.  He disagreed when put to him by Ms. Chiu, that he had ever destroyed her birthday presents or that he had beaten her three times a month.

22.It is the father's case that he took part in caring for the children.  He was the one who took the children to and from school.  He took care of them after school hours while the mother was out playing mah-jong at least three times a week from 2 p.m. to 7 p.m.  He wished to continue to be the main carer and provide his children with love and care.  Although he may be unable to assist them in their educational needs he would call upon his relatives to assist him and or take them to the library himself. 

23.The mother principally relies on the contents of the social investigation in support of her application for custody.  She says that it can be seen from the report that she has shown that she has the ability to take care of the children.  They are very attached to her and are happy.  She is able to take care of their everyday needs emotionally and physically, as well as assist them in their education needs.  She states that she has been the primary carer since the birth of the two children as she had all along been a housewife.  She does not have a partner now and has no intentions of re-marrying.

24.The mother accepts that during the marriage she played mah-jong but only recreationally, infrequently and in small amounts.  She explained that she only played mah-jong when she knew the father was able to look after the children.  As regards the allegation of the debt raised by the father, it is her case that she never incurred any debts at all.  She says that her friend took out the debt and that she was the personal guarantee of the loan.  To her knowledge the friend has repaid the debt.  She denies playing mah-jong now as she is the only one taking care of the children.

25.When it comes to deciding custody the welfare of the children are the first and paramount consideration for the court to have regard.  There are number of factors which assist the court in deciding upon these matters.  Some relevant factors to consider in the present case are that of the child's age, quality of the child's attachment to each parent, the child preference or wish in regard to custody, continuity of the child care, the ability and capability of each parent in meeting the physical, emotional and educational needs.  This list is not exhaustive but is useful in assessing a custody issue.

26.In compiling her report the SWO interviewed the two children, the mother and the father.  She observed the children together with their respective parent and also interviewed the children on their own.  She observed that the children have a closer relationship and emotional attachment towards the mother.  The father-children relationship is observed to be distant.  The children have shown their preference that they wished the mother could obtain their custody.  They hold a rejecting attitude towards their father principally because the father practices corporal punishment on them and is quick tempered.

27.The father queried the children's rejecting attitude towards him.  He cross-examined the SWO as to how she had arrived at her conclusion.  It transpired that during the investigation the SWO had given the children a document of which contained certain sentences which were incomplete.  The children were asked to finish off the sentence.  These documents were exhibited as SW1 and SW2 (the daughter and son's respectively.)  Evident from the completion of the sentences were that the children wanted to spend time with their mother and for them to be happy together without the presence of the father.  Unfortunately the children's answers in respect of the father were not warm and welcoming.  The daughter's completion to the sentence of "I wish my father ___________," was that "I wish my father to forget me " and the son's answer was "I wish my father would disappear forever."

28.The father doubted that many of the answers came from the children, nor that they could have replied in the manner they did as some of the Chinese characters written by them were too difficult for children of their ages to know.  He suspected that they were taught and or guided to write those answers.  The SWO stated that no one taught or guided them to give those answers.  She was the only person present when the children were asked to complete the questionnaire.  She explained that when the children did not know how to write a character they asked her for her help or the son even turned to ask his sister.  She did not suggest nor teach them how to answer or complete any of the questions or sentences posed.  She observed that despite their ages, she said they knew she was interviewing them in relation to the matter of custody.  I believe her evidence.

29.The daughter has fear towards her father.  She remembers her father scolding her for mistreating her brother and revealed that she used to be beaten by the father with a hangar about three times a month.  She also remembered that he had destroyed her birthday present.  The daughter says the father fails to understand her feelings.  The son finds his father to have a poor temper.

30.The social investigation report is not binding on the court.  It is to be used as a guide when assessing the issue of custody.  The social welfare officer is independent.  She has made a thorough, detailed and impartial consideration.  I have placed weight on her report and her evidence.

31.I have no doubt that the father loves the children very much but the children feel he is an authoritative figure and face punishment and hence the children are scared of the father.  The father-son relationship is rather remote. 

32.As observed by the SWO, during the interview with the father the children did not sit close to the father.  When they saw their father they did not show happiness.  The interaction between the children and mother are very free.  The children said anything they wanted to say.  They showed their happiness.  There was bodily contact between the mother and children.

33.I accept that the parents love the children very much.  The children have spent all their lives with the mother whilst the father through force of circumstance has been away from their daily routine now for over a year.  Their relationship with him is now remote.  The mother has shown her ability to care for the children, though is lax in supervising the children in their educational needs.  The mother is more patient and lenient in supervising their behaviour.  They are happy with her.  They wish to remain living with her.  In the circumstances I do not consider a change to their daily routine to be beneficial.  It is in the best interests of the children to remain with the present status quo. 

34.The SWO has indicated that both parents have the need for improving their parenting skills and the father child relationship will have to be re-built.  In this regard I agree with the recommendation of the SWO that a supervision order for 12 months be imposed to render counselling on both parents and assist them.

35.Applying the factors in assessing custody to the present case, I order that custody of the two children be granted to the mother.  I know the decision will disappoint the father.  However, as the children's relationship with the father is remote and they have shown some fear towards him, it is important at this time to re-build the children's relationship with their father.  I consider that it would be in the best interests of the children to have access to the father in the presence of a social welfare officer until such time as their relationship can be re-built.  I therefore make an order that the father do have access to the children of the family once a week on Sundays or a day convenient to all the parties concerned.  Such access to be conducted in the presence of the SWO.  The arrangement and time for access to be arranged through the SWO.  A supervision order will be imposed for 12 months.  It is hoped that the presence of the SWO can be dispensed with once the relationship is improved.  If the relationship has improved prior to the calling of the progress report, I consider it beneficial to leave it in the SWO's discretion to dispense with her presence during access should the circumstances permit.  A progress report is to be called for in 9 months time. 

36.The Orders are as follows:-

(1) Custody of the two children be granted to the Petitioner (mother),

(2) The Respondent (father) be granted day access once a week either on a Sunday or a day convenient to all the parties concerned.  Such access to be conducted in the presence of the Social Welfare Officer.  The time and arrangement for access to be through the Social Welfare Officer.  The Social Welfare Officer be granted leave to at his/her discretion prior to the calling of the progress report dispense with supervised access,

(3) A supervision order be imposed for 12 months.

(4) A progress report be called for in 9 months time.

Miss. R. Chiu of S.H. Leung & Co. for the Petitioner

The Respondent acting in person.