R v. Y
Read the full judgment text of CACV 193/2010 on BabelCite. This Court of Appeal judgment was delivered on 22 October 2010 before Rogers VP, Cheung JA, Bharwaney J.
Family law – custody of minors – children of mixed American-Chinese and Japanese parents – girl aged 8 and autistic boy aged 6 – interim care and control to mother – contested hearing – trial judge grants sole custody, care and control to father with limited access to mother and best-endeavours undertakings – mother with unchallenged evidence of devoted care of autistic son and integral role in daughter's Japanese-language upbringing – whether judge erred in displacing mother and granting custody to father – whether mother had current alcohol problem affecting parenting – whether mother physically violent towards children – whether mother alienated daughter from father – whether mother capable of implementing autistic son's treatment regime – whether 'best endeavours' undertaking enforceable – role of mother in life of young child – welfare principle – 'Terrell v Mabbie Todd' [1952] RPC 234 – 'Brixey v Lynas' [1996] 2 FLR 499 – Guardianship of Minors Ordinance Cap 13 s.3(1)(a), s.3(1)(b), s.10(1) and s.23 – Rules of the District Court Cap 226 O.90 r.5(3) – appeal allowed – order below set aside – joint custody with care and control to mother – pre-judgment access regime reinstated with shared weekend time – order nisi for no order as to costs.
Legal issues: Whether the trial judge erred in displacing the mother and granting sole custody, care and control to the father · Whether the mother had an alcohol problem that rendered her unfit for custody · Whether the mother had used physical violence against the children · Whether the mother deliberately alienated AK from her father and his family · Whether the mother was unable to cope with K's autism and treatment regime · Whether the order imposing an unusual 'best endeavours' undertaking and other requirements on the father was appropriate · Costs of the appeal and the court below
Outcome: Appeal allowed; the order of the court below granting sole custody, care and control to the father is set aside; joint custody is ordered with care and control to the mother (the respondent), reinstating the pre-judgment access arrangements with shared weekend time at the parties' respective residences, to be agreed between them.
Cited by 17 cases
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CACV 193/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 193 OF 2010 (ON APPEAL FROM FCMP NO. 151 OF 2010) __________________
BETWEEN
__________________ Before: Hon Rogers VP, Cheung JA and Bharwaney J in Court Date of Hearing: 8 October 2010 Date of Handing Down Judgment: 22 October 2010 __________________ JUDGMENT __________________ Hon Rogers VP: 1.This was an appeal from a judgment of HH Judge K W Wong given on 8 June 2010. The matter before the judge was a contested hearing in relation to the custody of two children namely AK, who was by then 8 years old and K, who is 6 years old. The matter has had some history. In particular, in September 2009 an order had been made giving interim care and control of the two children to the respondent, the wife, subject to the applicant, the husband, having exclusive staying access in the matrimonial home with the children over the weekend and having exclusive visiting access as set out in that order. Following the judgment given on 8 June 2010 the applicant was granted sole custody, care and control of the 2 children with supplementary orders which had some unusual provisions. 2.Apart from the fact that the father was required to undertake to move his home to Central within 2 months, he was required to give an undertaking to “try his best endeavour to be at home by 6 pm for at least 3 days each week between Monday to Friday”. Although, on occasions, the formula of “using best endeavours” has been criticised as being too imprecise, decisions such as that of Sellers J in Terrell v Mabbie Todd [1952] RPC 234 have established that such an undertaking has a clear meaning and is enforceable. It is onerous and, whilst the limits of reasonableness must not be overstepped, whatever it implies, it does not imply second best efforts. However the order also gave the respondent visiting access between 4 pm and 7 pm each Monday and Wednesday during school time and a full 24-hour period between 4 pm and 7 pm on alternate Saturdays and Sundays. Paragraph 3 vi) of the order provided:
3.The judgment was given some 4 months after the conclusion of the evidence and 3 months after the written and oral submissions. With respect, it shows signs of having been written on different occasions because to a substantial extent, the judgment has been lengthened by, seemingly unnecessary, repetition. I would also mention that it would appear that the hearing of the case was, also, not assisted by the listing arrangements, which, on a substantial number of occasions, appear to have caused the commencement of the hearing to have been delayed both in the mornings and in the afternoons. That, no doubt, contributed to the length of the hearing. Those responsible for listing should be aware that when an interlocutory application is put into a judge’s list during the hearing of a long trial, not only is the trial disrupted but it is inevitably lengthened to the detriment of the proper administration of justice and to the significant increase in costs to the parties. 4.The parties to the marriage clearly come from very different backgrounds. The applicant was described by the judge as being an American born Chinese and the respondent is Japanese. As already noted, there were two children of the marriage. The applicant is a securities trader. There is no doubt that he works hard and long hours. It would appear that he leaves home between 6 and 6.30 am and often does not return until very late at night. It would appear that his employment entails a considerable amount of socialising with clients, often combined with heavy drinking. The respondent was well-educated and has been a housewife since marriage. AK appears to be a bright, perhaps very active, child, who does well at school. K, on the other hand, is autistic. It would appear that he needs a considerable amount of care and attention and his condition is serious. 5.K is taken care of subject to a regime which has been devised by doctors and others in the United States. It would appear that the treatment, which he undergoes on a daily basis is both extensive and time-consuming. It can be said to be not conventional and, to a certain extent, experimental. It was researched by the applicant. He identified the form of treatment and various trips to the United States have been made in order to facilitate its implementation. The respondent is clearly not convinced as to the efficacy of the treatment; nevertheless it is clear from the evidence that she does carry it out. 6.The parties have, over a considerable period of time, exhibited a tendency to vent their emotions against each other in a physical way and, on no few occasions, the police have been called. It is right to say, however, that no such physical attack has been made on the children, although allegations have been made, which will be referred to below, in respect of the respondent, but an analysis of the evidence shows that the allegations are unreliable, to say the least. Both the applicant and the respondent were heavy drinkers. That matter will be referred to below. 7.The judge referred to the evidence from Dr Levy, the appointed psychologist, who had assessed the position and, in particular, that of AK. The judge summarised his conclusion in that respect in paragraphs 119 of the judgment where he said:
8.The essence of the judge’s decision would appear to be contained in paragraph 240 of the judgment where he said:
9.In my view, the judge fell into error because whilst accepting that the respondent was a good mother to the children, he downplayed the importance of a mother’s position with regard to young children to an extent that was equivalent to ignoring it. This is a particularly important consideration in this case because one of the children is a girl and the boy needs considerable attention. Furthermore, the judge appears to have ignored the obvious indications that the applicant was at pains to exclude the respondent from contact with the children. Very importantly, the judge dismissed AK’s clear wish to be with her mother, as something that she would get over. The judge seemed to have taken the view that by giving custody, care and control to the father, AK will eventually be forced to change her affections. 10.This court was reminded of a large number of decisions which have stressed the importance of the mother in the life of a young child. In this respect I would simply refer to the case of Brixey v Lynas [1996] 2 FLR 499. It is unnecessary to cite from the speech of Lord Jauncey; it is sufficient to say that what he said there was clearly based on practical experience and the realities of life and is not a matter of prejudice or discrimination. 11.The judge found that the respondent was a loving mother. Indeed it can be noted that whilst excluding her from having custody, care and control he did order very limited access as well as staying access at alternate weekends. There is no doubt that the respondent prepares the children’s food. It is quite clear that the respondent is an integral part of assisting with AK’s schooling. The parties have chosen that she should be brought up in a Japanese school speaking Japanese, with all that entails. The only alternative to the respondent’s full involvement with AK and her upbringing would be for the applicant to employ a Japanese speaking tutor. It is unnecessary to observe that that would be far from an advantageous result. The order made by the judge reduces the role of the respondent with regard to AK’s schooling to an extent that could scarcely be equated to that of a part time tutor. 12.In respect of K, the mother gave evidence which was not challenged as to her extensive involvement in K’s treatment. The social welfare officer, Ms Chow, said that she considered that the respondent was a more suitable person in the circumstances to have custody, care and control if joint custody would not work. She believed that the respondent was capable of communicating with the United States professionals in respect of K and that he needed her mother more than a domestic helper and that the respondent was able to take care of K and implement his schedule. 13.Furthermore, it appears that the respondent has always slept with the children, even in circumstances which involved substantial inconvenience to her. 14.There is no doubt that AK is clearly very attached to her mother. Every indication from all the witnesses is that that is so. AK herself has said that she did not want to be separated from her mother. The judge appears not to have considered the importance of the mother and child relationship both as a general matter and specifically in relation to this case. The applicant could not bring himself to say that the respondent was a bad mother. All he could say was that there could be improvement, but, everybody can always improve. 15.Given all these factors. It would clearly be wrong to remove the children from the mother’s care and control unless there were grave reasons to do so. Even then, careful consideration would have to be given to what alternative arrangements would be in place should the mother be displaced. 16.In the present case the applicant is clearly not in a position to give full-time care to the children. His working hours have already been referred to. They leave little, if any, time during a week for him to see the children. The judge’s request that he should try to use its best endeavours to be home by 6 pm three times a week is clearly something that would be difficult for him, given his own evidence as to the necessity to entertain clients at night. The conclusion must be that, even if he were at home by 6 pm, that would not necessarily mean that he would remain home for the rest of the evening. 17.The applicant is clearly highly dependent upon the Filipina maids, Rosa and Del. Whilst the applicant has expressed great trust in Rosa, unfortunately she remains a hired help. A hired help can be no substitute for a mother. Considerable discussion was also made of the assistance of the applicant’s parents. Prior to the events which have led to the breakup of the parties’ marriage, the grandparents lived in Fresno. Seemingly, they have retained their residence there although they appear to be prepared to spend considerable time in Hong Kong. However well-intentioned a grandparent is, it is unlikely that a grandparent will have the energy, patience, tolerance and attachment that a parent would have to a child. Perhaps a telling answer in cross-examination of the applicant’s father as to how he saw his own role was in evidence on 9 November 2009:
18.Mr Scott SC, who appeared on behalf of the applicant in this court, argued that the respondent should not be allowed to have care and control of the children because she has an alcohol problem and indulges in heavy alcohol consumption; she is violent and uses physical violence not only to the applicant but also towards the children; she alienates AK against her father and his parents and she is unable to cope with K’s autism and his treatment regime. 19.Turning first to the submissions in relation to alcohol, it is to be noted that the judge said at paragraph 65 of the judgment:
20.It is not entirely clear whether the judge considered that the respondent was untruthful in her evidence or in what she told Dr Chan, or both. As already noted, both the applicant and the respondent have been heavy drinkers. There is a doctor’s report in which the estimate of the respondent’s alcohol intake was given as approximately 50 units per week. That estimate had been supplied by the applicant and was similar to his own estimate. That was not denied. But it is important to note that that report was made in February 2007. Nor is it denied that in April 2009 there was wine stored in the cabinet of the bathroom of the master bedroom. However, the judge did not refer to the respondent’s evidence that following the hearing on 8 July 2009 she had made a considerable effort to control her drinking. When fairly read paragraphs 37 and 38 of her fourth affirmation say that. In paragraph 38 she said:
21.In this respect I consider that the judge read paragraph 37 of the respondent’s fourth affirmation out of context. When the fourth affirmation is read fairly and as a whole it is clear that the respondent was admitting that she had drunk wine consistently previously but that once the court had expressed its concern she had refrained from drinking wine at home and that she had consulted Dr Chan, a psychologist, when she saw on 25 August 2009. The respondent repeated that when questioned in cross-examination on 30 January 2010:
22.It has to be said that the respondent never denied during the course of evidence that she had previously drank consistently in the past. It is clear that when she consulted Dr Chan, with regard to whether she was unfit or incapable because of alcohol, she had told him of her previous drinking levels. By that time it was her case that she had stopped drinking at home. Some of Dr Chan’s report is quoted in paragraph 128 of the judgment. However, significant parts are not. For example, in paragraph 2.4 of the report Dr Chan, which was not quoted in the judgment, he said:
23.Dr Chan was therefore well aware that the drinking level had previously been said to be everyday and that the respondent considered that it was more accurate to say a few times a week. I would interject that the difference is minimal since consumption of a full bottle of wine per day is heavy, whether that occurs a few times a week or everyday. The important point is whether the respondent had stopped drinking at home as she said. Dr Chan’s report then referred to the Folstein Mini-Mental Status Examination. Following that paragraph 5.1 of the report states:
24.Paragraphs 5.1 and 5.2 were cited by the judge in paragraph 128 of the judgment and he went on to cite from paragraph 5.3 of the report. However, in so citing I consider that he omitted a very material part of that paragraph having regard to the fact that the judge came to the conclusion that the respondent had lied to Dr Chan. The part omitted is underlined in italics below:
25.The respondent was cross-examined about events which took place prior to 8 July 2009. The judge referred extensively both to the events which had taken place before July 2009 as well as to paragraph 37 of the fourth affirmation, which has been referred to above. The only event which took place after July 2009 which was argued as showing that the respondent had drunk at home was an occasion when a cooking pot had been left on the stove. The respondent had explained that she had forgotten it because she had gone to attend to K. The evidence had come from Rosa, but as the evidence given by Rosa at the hearing showed, Rosa herself had not seen the respondent on that occasion. All that Rosa could say when asked whether the respondent had been drinking alcohol that night, was:
26.That colleague was, quite clearly, Del, the other maid, but Del was not called to give evidence. The evidence was clearly hearsay and, in any event, when put to Dr Chan he considered that such an incident was inconclusive. Reliance was also placed by Mr Scott on the fact that the respondent had ordered a bottle of wine when taking the children to dinner at the Disneyland hotel. The respondent denied drinking the whole bottle and explained that she regarded it is cheaper to order a whole bottle of wine rather than champagne by the glass. The matter was not properly explored. 27.In summary, therefore, I consider that the judge did not distinguish between the alcohol consumption prior to July 2009 and after July 2009. In doing so he took into account in assessing the respondent’s credibility, her admitted consumption prior to July 2009 without appreciating the significance of her evidence that she had drastically reduced her alcohol consumption. What she said in her evidence and what she had said to Dr Chan were consistent. Furthermore, she had not disguised her previous heavy drinking when consulting Dr Chan. There was no ground in my opinion, for the judge to conclude that the respondent had lied to Dr Chan. 28.Before leaving this aspect of the case I cannot help observing the irony of the applicant’s position. His evidence on 30 October 2009 was that he would be out 3 to 4 times per week in the evening, coming home at anytime up to 2 am. He would have drunk anything between 1 to 10 drinks in the time he was out. 29.A little later the evidence continued:
30.What is perhaps notable is that the judge considered that the applicant’s drinking did affect his relationship with his family but then went on to say that it did not affect his work. Having considered large parts of the transcript as well as the written evidence I fail to understand how it could be said that the children had to be taken away from the mother, who had made a conscious and, seemingly successful, effort to restrict her drinking, and to be given to the father, whose excessive drinking appears to have been condoned by the judge on the basis that it was primarily directed to business entertaining. 31.As regards the question of violent behaviour, it is to be observed that allegations of violent behaviour on the part of the respondent against the children appear to emanate from Rosa. As was pointed out in the course of the hearing, Rosa’s evidence is far from reliable. The applicant had said that he had never seen the mother hitting AK, nor had there been any complaints from school nor had he seen marks which would show that there had been physical abuse. His belief that there had been physical abuse was based on what Rosa had said in an affirmation. In contrast when Rosa gave evidence, she said that on the occasions when there had been physical abuse the applicant had been there and would have seen it. 32.When questioned as to why she had not protected AK if she had seen her being struck in the way she described, Rosa eventually said that she had told the applicant because AK had had a headache after being hit on the head by the respondent. Clearly, the judge should have warned himself that it was unlikely that Rosa's evidence could have been reliable given the applicant's denial that Rosa had told him about any physical abuse. 33.No doubt the judge was very troubled by the recording of the altercation between the parties that took place on 20 September 2008, which appears to have precipitated the present proceedings. Doubtless, on that occasion, the respondent did strike the applicant. There is no suggestion that he was permanently hurt. What is more important, is that the animosity was directed at the applicant and not at the children and was prompted by what appears to have been his association with a lady from Switzerland. What is, perhaps, revealing is that, in relation to the respondent’s complaint that in August 2009 the applicant had returned “in an extremely foul mood and was drunk.”, there was a dispute between the parties and, at one point, the applicant had taken the respondent’s computer. On that occasion, too, the police were called because the applicant refused to return it. The respondent said that after she had gone to the master bedroom and locked the door, the applicant kicked open the door and the laptop was thrown back to her. The door lock was permanently damaged. Whilst the applicant denied breaking the door, he said he was provoked and regretted some of the actions that evening, conceding he was “…immature and a bit irrational”. The judge was content to condone the applicant’s behaviour, simply saying:
34.The conclusion can only be that this family had been in the habit of excessive drinking and unpleasant behaviour, but that was not confined to the respondent and not visited on the children. There were also allegations of violence by the respondent towards the children in the report of Kostatinos Trakakis, the director of Autism Recovery Network, an organisation which provides therapy for K. The allegations came from a hearsay source and the author of the report did not testify in court. The respondent denied the allegations of violence. 35.In coming to the conclusion that the children AK’s distinct preference for being with her mother and her reluctance to be with her father was the result of the respondent’s deliberate attempt to alienate her daughter from the father, the judge failed to consider that was in all likelihood partly the inevitable effect of AK being with her mother who was at home for her, whilst her father’s working and socialising habits left little time for him to be at home and partly that this was natural for any child and, in particular, a girl. In any event, as pointed out earlier, Dr Levy recommended therapy to repair the bond of daughter and father. Dr Levy did not recommend AK should be separated from the respondent. In fact she accepted that AK would suffer if separated from the mother. 36.The next observation that can be made is that the judge clearly overlooked the way in which the respondent was treated by the applicant, the applicant’s parents and, indeed, at least Rosa as well. In this respect, it would appear that Rosa was not merely protected by the applicant but actively encouraged to be confrontational towards the respondent. The applicant was quite clear in his evidence that he preferred Rosa to his wife and he trusted Rosa and not his wife. 37.It is difficult to understand how the judge could say in paragraph 237 of the judgment:
The applicant has not shown any indication of wishing to be conciliatory to the respondent or of trying to include the respondent in the lives of the children. Indeed, after the judgment on 8 June 2010 he then sought a court order to exclude the respondent from access to the children. In paragraph 13 of his affidavit sworn on 8 July 2010 the applicant said:
38.It has to be borne in mind that an affidavit is not made in the heat of cross-examination in a court, but is made in the comparative calm of an office with legal advice. I do not consider it necessary to examine the details of the incident which the applicant considered justified the application to exclude the respondent from contact with the children, suffice it to say, it is by no means clear that the fault lay with the respondent, who had been trying to take AK to the hospital when she had a fever but was physically prevented from doing so by the applicant’s mother. 39.It is quite clear that the applicant has been provocative, to say the least towards the respondent. When Rosa was cross-examined she was asked about an e-mail that the applicant had sent to the respondent in November 2008. That read:
40.Rosa confirmed that she had been given a tape recorder and told to record anything that she thought was necessary. It has to be said that Rosa was given quite unusual treatment by the applicant in other respects. Not only was she paid $8500 per month, which was well above the normal wage for a Filipina maid, which the applicant acknowledged but put down to Rosa being able to drive a car, but she was given a Blackberry and also had the use of a supplementary Platinum American Express card. Whilst Rosa denied that that card had ever been used for anything other than paying for petrol, the applicant confirmed in his evidence that it had been used for other things. Clearly taking all these matters together, the picture emerges of the applicant enlisting the wholehearted support of Rosa to assist him, as far as possible, in his dispute with the respondent. 41.Should there be any doubt that Rosa had clearly taken sides a long time ago, in an antagonistic way, against the respondent, reference only has to be made to an e-mail which Rosa sent to the respondent on 18 September 2009. The contents and tone of that are such that in any household in which the employer, namely in this case is the applicant, had any respect for his wife, even if in the throes of divorce, the maid would be dismissed on the spot. 42.The applicant’s father also monitored everything that the respondent did and wrote a daily note for the purpose of collecting evidence to use against the respondent. What was said by the applicant’s father confirms this:
43.As regards other matters relied upon by Mr Scott namely the supposed inability of the respondent to cope with K’s autism and the potential wrong administration of antibiotics to AK, as already noted, it is clear that the respondent has given clear evidence of her devoted attention to K. She has been K’s carer. She has looked after him throughout the day. She has had him in her room to sleep at night. The applicant is in no position to refute that. As to the question of ill-advised administration of antibiotics, Mr Scott had to concede that, in effect, it was a make weight argument. If newspaper reports are in any way accurate, over and misuse of antibiotics is, unfortunately, prevalent. 44.For these reasons, I consider that the judge has clearly erred both in the way he has approached the matter and, unfortunately, in his assessment of many of the important allegations in respect of the parties. I have no doubt that the care and control of the children is best left to the respondent. In the course of the hearing the parties were asked as to their position in relation to joint custody. It was impossible to achieve any agreement as to that, although it does appear that the respondent was more receptive to the notion than the applicant. 45.In my view, the best course as regards the children is that the major decisions should be taken by the parties together. This has been the case todate. As regards AK, it is clear that the parties have agreed that she should be brought up speaking Japanese and at a Japanese school. As regards K, the parties have embarked upon a particular form of treatment and there is no suggestion that that would be changed at least in the foreseeable future. There is no apparent reason why that type of cooperation should not continue. 46.I would, therefore, set aside the order below. I would make an order of joint custody with care and control to the respondent and reinstate the arrangements which were in place prior to the judgment on 8 July 2010, save that the parents should have shared time with the children at the weekends. How that is best achieved should be a matter for agreement between the parties. The staying access should be at the respective party’s own residence. Taking into consideration the fact that this court is considering what is best for the children I would make an order nisi that there be no order as to costs of the appeal and in the court below. Hon Cheung JA: 47.I agree. Hon Bharwaney J: 48.I agree with the judgment of the Vice-President and with the proposed order nisi as to costs.
Mr John Scott SC & Ms Mairead Rattigan, instructed by Messrs Hampton, Winter & Glynn, for the Applicant/Respondent Ms Anita Yip & Ms Jennifer Tsui, instructed by Messrs Chaine Chow & Barbara Hung, for the Respondent/Appellant |
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