P v. P
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IN THE COURT OF APPEAL 1996, No. 256 P v. P ________________________________ Coram: Litton VP, Bokhary & Godfrey JJA in Court Date of Hearing: February 25, 1997 Date of Handing Down of Judgment: March 6, 1997 ________________________________ JUDGMENT ________________________________ Litton VP: 1. The first judgment will be given by Bokhary JA. Bokhary JA: The beginning 2. This is an appeal by a wife (Mrs P) against so much of an Order made by His Honour Judge Hartmann on May 8 last year as awarded her husband (Mr P) care and control of the two children of the family. Those children are T a boy born in mid 1987 and E a girl born in late 1989. 3. It is regrettable that this appeal did not come on for hearing sooner. But Mrs P had real difficulties in regard to obtaining legal representation. And those difficulties have resulted in delay. 4. Mr and Mrs P were married in England in 1977. He is English. At the time of the marriage, he was a barrister of some four years’ standing. She is a New Zealander. Her training is as a court stenographer. Additionally, she has secretarial skills. 5. In 1982, they moved to New Zealand. 6. Then in 1986, they moved to Hong Kong. Since then, Mr P has built up what seems to be a busy practice at the criminal bar here. 7. The last matrimonial home was a house in Lantau. The wife leaves 8. In the latter part of 1993, Mrs P left that matrimonial home and moved into a flat in Kennedy Town. She remains in that flat to this day. 9. The judge sympathised with her reasons for leaving the matrimonial home. He accepted that she left her husband, not her children. Physical intimacy between husband and wife had ceased for some time. And she suspected that he was having affair. The husband’s affair 10. What she suspected proved to be true. He was having an affair. It was with the party cited (Miss T) who had worked as a domestic helper for him and Mrs P for about a year shortly after their arrival in Hong Kong. 11. In early 1992, while in the Philippines, Miss T had given birth to F, a boy fathered by Mr P. 12. Miss T soon returned to Hong Kong, bringing F with her. 13. By mid 1992, Mr P had established Miss T and F in a flat in Lantau. That flat was within walking distance of the then matrimonial home. 14. I pause here to point out that none of this involves passing judgment on Mr P’s morals. We are not here to judge his morals any more than we are here to judge Mrs P’s morals. She – in the unhappiness of a loveless marriage – has strayed to the point of committing adultery with the co-respondent in mid 1993. Nothing more need be said about that man. It appears to have been a fleeting affair. And he no longer appears to be on the scene. 15. A couple of months after Mrs P left the house in Lantau which had been the last matrimonial home, Mr P moved himself and T and E to a flat also in Lantau. 16. Towards the end of the following year, 1994, he told Mrs P that he was having an affair. But at that stage, he did not say with whom. In that same month, Miss T gave birth, in Hong Kong, to M, another boy fathered by Mr P. All is told 17. The next month, Mr P and Mrs P and their two children were on holiday in New Zealand. During that holiday, Mr P told Mrs P’s mother that he was having an affair. The row which ensued can be imagined. And in the course of that row, the fact that he had children born outside the marriage came to light. 18. Back in Hong Kong at the beginning of 1995, Mr P finally told Mrs P who the other woman was. Petition and Cross-Petition 19. In May 1995, he petitioned for divorce; and she cross-petitioned for divorce. 20. By the next month, she had taken out an application for interim custody of T and E with reasonable access to Mr. P. 21. Then the all too common things started to happen. There were adjournments, social welfare reports, affidavits and other applications. 22. A decree nisi was pronounced on November 21, 1995. The children with their father 23. Let us cut through to the situation which existed when the order appealed against was made in May last year. 24. By then, T and E had been living with their father for some two years and nine months. 25. During that time their mother had kept in close contact with them. She did so, the judge said, in that:
26. The practical result of giving the father care and control of T and E comes essentially to this. 27. Every school day, they have to make the long journey from their home in Lantau to their school in the Mid-Levels and back. 28. What happens when they get back home? In that connection, the judge found that Mr P “rarely gets back to his home on Lantau until late in the evening often after E has gone to sleep and at a time when T is ready for bed too”. 29. Turning to the weekends, T and E spend every alternate weekend with their mother. She picks them up from school after school on Friday. And they remain with her until 4 o’clock in the afternoon on Sunday. If they were with their mother 30. If care and control went to the mother with that sort of, or even more generous, access to the father, these two young children could count on being tucked into bed by their mother. They could still spend a lot of time with their father when he has more time for them than he has during weekdays. Travelling to and from school would be less arduous. Their extra-curricular activities would be undiminished. And so would their father’s role in those activities. 31. In the normal way, all of that would be overwhelmingly better than the opposite situation brought about by the order appealed against. So is there any acceptable reason for preferring care and control to the father over care and control to the mother? The social welfare report 32. The social welfare officer who reported to the judge recommended shared care and control. The judge pressed him as to what he would recommend if he had to choose one parent. It was only then that he said he would choose the father. But even then, he adhered to his recommendation of shared care and control. Rightly in my view, the judge rejected the idea of shared care and control. The result here is that the judge was not really proceeding on the basis of a social welfare officer’s recommendation. And in fairness to him, he never thought that he was doing so. The strongest arguments as the judge saw them 33. In deciding as he did on the question of care and control, the judge rejected what he seems to have regarded as the mother’s strongest argument. And he accepted what he seems to have regarded as the father’s strongest argument. 34. That rejected argument of the mother’s was, in effect, that the natural thing in the normal way was for children as young as these to live with their mother if they cannot live with both parents. 35. And that accepted argument of the father’s was the status quo ought to be preserved. 36. There are serious problems with that rejection and that acceptance. Young children and their mother 37. The mother’s argument was not based on gender alone. It was also based on the fact that even if she had to work until six, she could generally get home to the children on Hong Kong Island appreciably earlier than the father could generally get home to them on Lantau Island. Status quo 38. As for the preservation of the status quo, there is one vital fact which the judge, despite the very conscientious way in which he approached his task, appears not to have recognized. It was this. The situation which existed at the time when he made his order was not really some two years and nine months old. It was only six months old. For it was at the beginning of 1996 that Mr P dismissed the domestic helper whom Mrs P trusted (Gloria, who is now willing and able to work for Mrs P if she gets care and control of T and E). At the same time, he moved Miss T and her two children by him into the Lantau flat in which he was living with T and E. 39. Once that happened, the situation was changed in a radical way. 40. What is more, the new situation was one which called for close examination, particularly in regard to Miss T’s role. Miss T’s role 41. But the judge was not in a position to examine her role. He had no evidence from her: neither on affidavit nor from the witness-box. Nor was he told by Mr P whether or not he and Miss T intended to marry after he obtains a decree absolute. 42. What is Miss T’s position in regard to T and E: that of a surrogate mother, nanny, home-breaker or what? The judge was not in a position to say. In the children’s interest: care and control to the mother 44. On the evidence before the judge, only one course presented itself as a safe one. That was to entrust care and control of T and E to their mother. 44. The threshold which an appellant against a care and control order has to reach is a very high one. But Mrs P has reached it. 45. In the interest of T and E, I would allow the appeal to set aside the judge’s order which gave Mr P care and control and Mrs P reasonable access. And I would replace it with an order the other way round: giving her care and control and him reasonable access. Accommodation 46. That does not involve any disadvantage in terms of accommodation. Mr P’s flat in Lantau is said to be of about 700 square feet. And Mrs P’s flat in Kennedy Town is said to be of about 500 square feet. On those figures, Mrs P’s flat would be roomier for two adults and two children (being Mrs P, a domestic helper, T and E) than Mr P’s flat would be for three adults and four children (being Mr P, Miss T, a domestic helper, T, E, F and M). No criticism of the judge 47. I will, in a moment, come to the details of the order I propose. Before doing so, I would say this. Just because a judge’s decision is reversed in a case in which reversal involves the appellant reaching a very high threshold, it does not mean that the judge is open to criticism. Indeed, I would pay tribute to the care which His Honour Judge Hartmann brought to his task of deciding this very unusual case. 48. It is a case, let it be noted, which the judge said had “weighted heavily with” him. And he said that it had “not been an easy decision”. 49. Shortly before making those observations, the judge described the maintenance of the status quo as “a most important factor”. And shortly afterwards, he said that: “The maintenance of the status quo has been a major factor”. 50. The trouble is that he had introduced that discussion of the status quo by saying that he found it hard to dismiss the fact that the children had been with their father “all this time”. 51. But the status quo involved much more than just the children being with their father. It involved them being with him and cared for by the trusted domestic helper, Gloria. And then at the beginning of 1996, there came, as I have said, the radical change brought about by Gloria being dismissed and Miss T and her two children being moved in. Detailed order 52. At the conclusion of the hearing on February 26, 1997, leading counsel for Mrs P handed up draft minutes of the order which he seeks on her behalf. Tidied-up a bit and with the dates adapted to cater for the fact that a little time has passed between the preparation of that draft and now, it reads:
53. I would make an order in terms of paragraphs 1 to 9 of those draft minutes of order. And I would add a paragraph providing that in the event of any application for variation, whether by consent or contested, such application should be made to the Family Court. As to costs, the parties will have to be heard. Finally 54. The very last thing which I propose to say in this judgment is this. Rightly, the judge recognised that both Mr and Mrs P have a vital role to play in their children’s lives. It is only a question of how that responsibility is to be shared. Both still have a lot to offer their children even if not as much as they would if their marriage had been a success. It should not be necessary to say this; but all my experience in the law teaches me that it often is: the more that parents who split up can co-operate with each other, the more they will be able to do for their children. Godfrey JA: 55. In G.v. G. (Minors : Custody Appeal) [1985] 1 WLR 647, the House of Lords authoritatively re-stated what Lord Fraser of Tullybelton (at p.649) described as :
He pointed out (at p.651) that :
He added :
The principle to be applied therefore is, he said (at p.652), that :
56. Is this, then, a case in which the decision of the able and experienced judge below, familiar with this sensitive and difficult jurisdiction, fell outside “the generous ambit within which a reasonable disagreement is possible”? 57. The judge thought the father’s proposal (to leave the care and custody of these young children with the father, who had looked after them for 2 years and 9 months – now over 3 years – since the mother left the matrimonial home) was to be preferred to the mother’s proposal (to transfer the care and control of the children to the mother). 58. Another judge might have decided otherwise: I might have done so myself if I had had the advantage the judge had of seeing and hearing the witnesses. But that is nothing to the point. We are not placed here to substitute our own views (whatever they may be) for those of the judge, unless we are satisfied that his decision fell “outside the generous ambit within which a reasonable disagreement is possible”. I am not so satisfied; far from it. Accordingly, I would dismiss this appeal. Litton V-P: 59. I have had the advantage of reading in draft Bokhary JA’s judgment and I agree with it. 60. Our task in this Court has been eased by the exemplary fullness and clarity of HH Judge Hartmann’s judgment. The judge clearly had striven his utmost to come to the ‘right’ decision - as any court would when faced with the responsibility of looking into the future and deciding what might be in the best interests of the two children. But this does not mean that we, as an appeal court, have no duty to review the judge’s decision. 61. Where, in my view, the judge erred was in failing to recognise the fact that the ‘status quo’ as it prevailed at the time of the hearing had existed only for a few months. Up until January 1996 the person who mainly took care of the children’s day-to-day needs - fetching them from school, feeding them, giving them comfort when they needed comforting - was Gloria. When Gloria was, in effect, ousted, and Miss T and her two small children moved into the Lantau flat, the day-to-day care of T and E radically changed. The ‘status quo’ as existed from October 1993 (when the husband moved with the children and Gloria to the small Lantau flat) to January 1996 (when Miss T moved in) had gone. What exactly was the new status quo? What precisely was Miss T’s position in T and E’s lives? As domestic helper? Surrogate mother? Or what? The ‘status quo’ which formed the main-plank of Mr P’s argument for care and control was illusory. 62. The judge recognised, of course, the “guiding principle” (p15 of his judgment) that E, given her tender age, should be with her mother. No-one has suggested that T and E should be split up. Once the ‘status quo’ argument is discounted, then the remaining factors pointed inexorably to one solution only: that care and control should be with Mrs P, with reasonable access (including staying weekend access) to Mr P. I would be surprised, once the dust of hostile litigation has settled, if Mr P does not himself recognise the wisdom of this solution. It would, hopefully, also ease the friction which has built up over things like the children’s extra-curricular activities and access: friction which must inevitably harm the children. 63. The judge felt it necessary “in blunt terms” (p18 of his judgment) to advise Mr T to co-operate with Mrs T and to show a much greater sensitivity towards her needs vis-à-vis the children. The order as proposed by Bokhary JA will hopefully remove much of the cause for such advice to the husband. 64. The result is that, by a majority, this appeal is allowed and the order of the court is that as proposed by Bokhary JA.
Mr Gilbert Rodway QC and Mr Russell Coleman (instructed by Messrs Hampton, Winter & Glynn) for Mrs P Mr P in person |