Hans Frederick Oostergo v. Isabella Theresa Oostergo (Otherwise Palmer)
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CACV000014/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 14 OF 1971 (On appeal from Original Jurisdiction No. 77 of 1971 and No. 82 of 1971) -----------------
----------------- Coram: Full Court (Blair-Kerr and McMullin JJ.) in Court Date of Judgment: 5 May 1971 ----------------- JUDGMENT ----------------- Blair-Kerr J.: I shall refer to Isabella Theresa Oostergo (other-wise Palmer) as "the mother" and to Hans Frederick Oostergo as "the father" because, although they are no longer married to each other, they are the natural parents of the two children with whose custody this Court is concerned in these proceedings. 2. At 9.30 a.m. on the 5th of May counsel for the mother (Mr. Bernacchi) moved the Court for a stay of execution pending an appeal from a judgment given by Mr. Justice Briggs on 3rd May. 1971. Apart from the notice of motion, the only documents on the file were two short affidavits by the mother to the effect that the judge had dismissed some action and ordered her to deliver up her children to the father, and that the father would, in all probability, leave the jurisdiction of the Court and proceed to Holland with the result that the appeal would become "merely academic". There was a also a copy of the notice of appeal which alleged that
3. It appears that the judgment in the Court below was not available when these documents were filed. That being so, it is surprising that the mother's legal advisers did not have the pleadings and the affidavits in the Court below copied. We are not dependent on typists nowadays as regards the copying of documents. Copying machines are now the order of the day; and a great deal of material can be copied very quickly. 4. Be that as it may, I felt that no Court should be asked to decide whether to grant or refuse the mother's application for a stay on the scanty material which had been filed. I therefore called for the lower court files and read them. Only at the last minute did we receive a copy of the judgment in the Court below. 5. It not infrequently happens that when an application for a stay pending appeal is made to this Court, there is nothing on the file except the notice of motion and a short affidavit. Sometimes there is not even a notice of appeal; and we may, or may not, have the judgment in the Court below. In such circumstances, it is really very difficult to decide whether to grant or refuse the application. Counsel for the applicant invariably cites Wilson v. Church (No.2)(1); and, to be on the safe side, the Court usually grants the application. 6. It seems to me that this is not the way in which justice should be administered. This Court is not a rubber stamp as regards these applications for a stay. The mere fact that a notice of appeal has been filed does not mean that the clock is thereby put back to a stage prior to the decision in the Court below. Order 59 r.13 states that "except so far as the court below or the Full Court may otherwise direct, an appeal shall not operate as a stay of execution ........."; and we have said on more than one occasion that this Court does not make a practice of depriving a successful litigant of the fruits of his litigation except when it is obvious that, if a stay were not granted, the appeal, if successful, would be rendered nugatory. (The Annot Lyle(2); Monk v. Bartram(3); and Wilson v. Church (No.2)(1).) 7. However, as counsel for the father (Mr. Mills-Owens) so aptly put it, in this case we are not concerned with ships or the payment of money. We are concerned with human lives - in particular the lives of two children who, through no fault of their own, now find that they have to grow up with only one natural parent to guide and comfort them. In this class of case, the welfare of the children is the paramount consideration. 8. On 5th May we refused to grant a stay. We indicated that we would record the reasons for our decision later; and we now proceed to do so. 9. The father was born in Indonesia of Dutch parents. He regards Holland as his mother country; and he now intends to settle down there permanently. The mother, who is English, met the father in Hong Kong; and they were married on 26th February, 1956. At the time of the marriage, he was employed by a Dutch company, the head office of which is in Holland. Their daughter Sandra was born in Hong Kong on 15th September, 1956. 10. The family went to Holland in January 1957; and then to Dutch Guiana in July 1957. In 1961, the family returned to Holland for a time; and then the father's company sent him to Australia. A son, Clayton, was born in Australia on 2nd April, 1963. 11. In April 1968, the father had occasion to go to Japan on business; and, while he was absent from Australia, the mother, without the consent of the father, took the two children with her to Hong Kong. He immediately came to Hong Kong; and the parties agreed that the children should return with him to Australia; and they have been living with him in Australia ever since. The mother remained in Hong Kong. 12. When exactly, and under what circumstances, she met a certain Mr. Roberto Antonio Marques is not known. Mr. Marques is a Eurasian of Portuguese extraction. For some time he and the mother have been living as husband and wife in Hong Kong; and on 17th April, 1970, the husband was granted a decree nisi of divorce by Mr. Justice Selby in the Supreme Court, New South Wales, on the ground of the mother's adultery with Mr. Marques in Hong Kong. The father asked the court to exercise its discretion in his favour. The decree was made absolute on 16th May, 1970. 13. The divorce proceedings in Australia were undefended. The mother consented to the father being given custody of both Sandra and Clayton. It was ordered that she should have reasonable access to the children. The Court approved of an agreement between the parties contained in a deed dated 17th April, 1970; and it expressed its satisfaction that, in all the circumstances, proper arrangements had been made for the welfare of the children of the marriage. 14. On 5th November, 1970, the father re-married. His wife is a Dutch woman. She is a state registered nurse by profession. 15. Early in 1971, the father was posted by his company to Holland; and in order that the children might see Hong Kong and their mother before proceeding to Europe, he and his wife and the two children broke their journey in Hong Kong. They arrived here on 16th April intending to spend 3 days before proceeding on their journey to Holland on 19th April. They were met at the airport by the mother and Mr. Marques. At the Hong Kong Hotel, the mother asked if she could take the children out shopping. The father agreed; and they were with her from 2 p.m. to 3.15 p.m. She then asked if she could take the children out to dinner, assuring the father that she would return the children to him that evening. Rather reluctantly, he agreed to this request on condition that the children were returned to him by 8.30 p.m. that evening. 16. At 8.15 p.m., the mother telephoned and requested that she be allowed to keep the children over-night. The father did not agree to this. He demanded that his children be returned to him at once. She did not return the children to him. She kept them to herself. The father had no idea where they were, and he had no opportunity of communicating with them. 17. As the children had not been returned to him by 19th April, he instructed his solicitors to institute proceedings against the mother. An originating summons which gave notice that he intended to apply to court for an order that she deliver the two children to him forthwith, was served upon her. 18. In the court below Mr. Mills-Owens aptly described this as a "kidnapping" case. I entirely agree. No other description fits the facts. For three years the mother made no attempt to see her children in Australia; and she made no application to the Australian Courts for variation of the custody order which was made, with her consent, by Hr. Justice Selby in 1970. Instead, she waited until she managed to get her hands on the children in Hong Kong where she had chosen to live with Mr. Marques, and she then refused to return the children to the father. He managed to find her and the children on the previous occasion in 1968 when she did the same sort of thing. On this occasion, he was unable to find the children. He did not know where she had hidden them. 19. One can readily understand how this woman's heart would open to her two children when she saw them again in Hong Kong after the lapse of 3 years. They were her own flesh and blood. But she cannot seek to excuse her conduct on that ground. It was she who left the matrimonial home in 1968. The marriage was dissolved on the ground that she committed adultery with Marques. She well knew that the father was the person entitled to the custody of the two children by order of the Australian Court, to which order she was a consenting party. Unquestionably, at that stage, she was in contempt of the Australian Court. She well knew that the father was under orders by his company to return to Holland. If he had been forced to proceed there without his children, I have no reason to think that she would have taken any action in Australia, Hong Kong or elsewhere to regularise, ex post facto, her "kidnapping" act. It was not till 26th April, after she had been served with the father's originating summons, that she took out an originating summons (presumably on legal advice) in which she gave notice that she would seek an order from the Supreme Court of Hong Kong giving her custody of the two children. In my view, her conduct was utterly outrageous; and this is the second time that she has taken the law into her own hands in this way. 20. Women who behave in this fashion receive little sympathy from the English courts. For example, in In re T. (Infants)(4), the wife who was born in England, went to Canada and married a Canadian by whom she had two children. While he was absent on a shooting holiday, she took the children to England. Her husband obtained 6 months' leave of absence from his employers in Canada and came over to England. She issued an originating summons asking that the children be made wards of the English court. In this proceeding, her husband filed an affidavit in which he said:-
Pennycuick J. granted the husband leave to take the children out of the jurisdiction to Canada. The wife's appeal to the Court of Appeal was dismissed. Giving the leading judgment in the Court of Appeal, Harman L.J. said that the court rightly set its face against those unilateral movements of children which had been far too frequent in recent years. He approved of the following passage from the judgment of Willmer L J. in In re E(D) (an Infant)(5)(p.434):-
Harman L.J. continued thus (p.434):-
And, after referring to In re H (Infants)(6), which was a case in which children had been taken out of some American jurisdiction and brought over to England and the father came over and moved, in a summary way, to have them sent back, Harman L.J. said:-
21. Of course, the facts in this case differ from those in In re T. (Infants)(4) in that the mother on this occasion did not take the children out of Australia and bring them to Hong Kong. That was what she did in 1968; but not in 1971. Nevertheless, the principles enunciated by Harman L.J. are applicable to this case. 22. The two summonses were heard by Mr. Justice Briggs on 30th April. Various affidavits were filed by both parties. The father and mother were examined and cross-examined; and the mother called other witnesses. The judge also saw the children in chambers; and he adjourned to 3rd May for judgment. 23. According to the father, Sandra wrote to her mother periodically from Australia, although, in recent months, her letters became less frequent and she had to be encouraged by her father to write to her mother. The mother did not produce one single letter from Sandra written in Australia. There wasn't a scrap of evidence before the fudge to suggest that, while living in Australia, the children had ever said to anyone that they were unhappy living with their father. 24. However, once the mother got her hands on Sandra in Hong Kong and had the child to herself for a few days, a statement by Sandra was forthcoming. In my view, this statement does not really advance the mother's case one iota. After she left the father in 1968, and it was becoming apparent that she would not return to Australia and that the marriage was on the verge of breaking up, the father may well have associated with other women. Certainly, after the divorce, his object appears to have been to find another wife - which he did in 1970. But even assuming that the child's statement is substantially true, the worst that can be said of the father is that, in looking for a wife, he might have been a bit more tactful as regards his advances to prospective candidates - especially with a very well-developed teen-age daughter in the next room. 25. However, what is significant is that it was only after the mother got her hands on Sandra that the child said anything which might conceivably be said to reflect on her father. 26. When a marriage breaks up, children find themselves in a very difficult position. More often than not, they love both parents; they do not wish to take sides. Nevertheless, children are very pliable and easily influenced by either parent; and it cannot be emphasised too strongly that the mother had Sandra to herself in Hong Kong between 16th April and 5th May. We do not know what she said to the child during that period or under what circumstances Sandra's statement was made. What is clear is that, in order to obtain custody of the children, the mother had every reason to try to blacken the character of the father. Indeed, that was the only way in which she could possibly expect the court to endorse her kidnapping act. 27. The mother also thought fit to consult a certain Dr. John Hunter who described himself as a neurological surgeon working in St. Paul's Hospital, Causeway Bay. He spoke to the mother and listened to what she had to say. (He did not think fit to interview the father at all.) He then spoke to the children and listened to what they had to say; and he then wrote a report. He was not called as a witness. Counsel for the father had no chance to cross-examine him; and there was no report from any independent doctor called by the Court. 28. But, anyway, what does this report amount to? In it the doctor says that the children were relaxed, and that they did not appear to him to be under stress. The remainder of the report appears to be largely a recital of what the mother and the children are said to have told him. He then went on to say that "no irreversible change" had been made to the children's mental health, but that if they went to Holland "their emotional state will be considerably disturbed by loneliness, anxiety, and fear and helplessness to change a situation for which they were not in any way responsible." 29. Indeed, they were not responsible for the breakdown of the marriage in 1969. But there is not a scrap of evidence to suggest that during the subsequent 3 years in Australia, they were "disturbed by loneliness, anxiety, fear, and helplessness to change a situation for which they were not in any way responsible." And what exactly this doctor meant to suggest by the phrase "no irreversible change" is far from clear. Even assuming that a neurological surgeon is fit to express as view as to whether there has been "changes" in a person's mental state, he did not say that there had been any change in the children's mental health. How then could there by any "irreversible" change? 30. As it seems to me, all this doctor was saying in effect was: "These children tell me that they are fond of their mother and that they are very happy in Hong Kong. If they had a choice in the matter they would like to stay in Hong Kong. I think they will miss their mother a great deal if they go to Holland." 31. Little wonder that the judge said that he would pay "minimal attention" to this report. No doubt he gleaned far more from counsel's cross-examination of the parties and formed his own opinion as to how far each party was telling the truth. 32. In my view, there was no evidence before the judge to suggest that these two children are other than normal healthy children - physically and mentally. Clayton has had an attack of tonsillitis - a very common child's ailment. The mother says that he should have had his tonsils out. As to that, doctors are no more unanimous today than they were fifty years ago as to whether, and, if so, when tonsillectomy is beneficial. 33. As the judge and counsel for the father both said, the children are obviously having a "whale" of a time in Hong Kong. Sandra gave the judge the impression that she was indifferent whether she went to Holland or not; but she agreed that she was "loving" Hong Kong at present. It would be surprising if it were otherwise. They have no school work to trouble them, no restrictions, everyone making a fuss of them. Every European parent knows the impact which Hong Kong can make on an impressionable child or teenager who has been brought up in a Western country. Doubtless, Sandra would prefer to remain in Hong Kong rather than return to school anywhere - Australia or Holland. 34. But, in this highly emotional state, is she the best judge of what is best for her? Apart from the first 3 1/2 months of her earthly existence (of which doubtless she remembers nothing) and 3 weeks in 1968 when she was brought here by her mother from Australia without the father's consent, she has never lived in Hong Kong at all. Nor has Clayton. The children know nothing of Mr. Marques. There is no evidence that the mother had decided to marry this gentleman prior to 16th April. But, it is significant that she and Mr. Marques gave notice of intended marriage on 17th April; and it is said that they were actually going to get married on 5th May. In the short time available, how could the children form and opinion as to what kind of a step-father Mr. Marques would turn out to be? 35. It is said that Sandra is now approaching a critical stage in her academic life and that it is unfair to ask her to learn Dutch, even although the educational system in Holland is second to none. That, of course, is undoubtedly a hardship which the child must bear. But it has to be remembered that the mother married a Dutchman who was liable at any time to return to his native land. The question of her learning Dutch must have been very much on the cards ever since her birth. She has lived in Dutch Guiana and in a home in Australia where her natural father and, since 1970, her step-mother, would presumably be speaking Dutch. 36. In deciding whether to grant or refuse a stay of execution, the court, in my view, is entitled to consider what prospects there are of the appeal succeeding. Of course, this cannot be done unless the court has an opportunity of studying the record in relation to the grounds of appeal which have been filed; and, in infancy cases, it is only in very exceptional circumstances that an appellate court will interfere with the trial judge's division. As Harman L.J. said in In re B. (An infant)(7):-
37. It is said that when the appeal comes on for hearing there will be an application to admit an affidavit purporting to set out what Sandra's reaction was on hearing Mr. Justice Briggs' decision that she proceed with her father to Holland; and it was even suggested that we should see Sandra in chambers. 38. As to that, this court will be very careful as to what additional affidavit evidence it considers. Clearly, any allegations made by, or under the influence of, the mother, would have to be very carefully tested. That was the trial judge's function. If this court were to permit additional affidavits by one side, it would have to permit additional affidavits by the other and there would have to be cross-examination on all these affidavits. But that would be virtually turning the appeal into a re-trial; and that is not the function of an appellate court. 39. However, even if this court were to look at an affidavit setting out what Sandra's reaction was on hearing that she must proceed to Holland with her father, it is perfectly understandable that the child would not relish the fact that her holiday in Hong Kong had come to an end and that she would have to return to school; and, having been in the mother's custody and under the mother's influence since 16th of April, what good would it have been for us to listen to a child say to us in chambers: "I want to stay in Hong Kong with Mummy"? 40. What I feel about this case is this: The mother's object from beginning to end has been to play on the emotions of the children with a view to obtaining some sort of evidence for use in blackening the father's character. Indeed, her whole approach has virtually been an appeal to emotion. A typical example occurred in court immediately after we refused her application for a stay. Through her counsel, she asked if she might hand over the children on the 6th do May rather than forthwith because, according to her, she required 24 hours to collect their clothing and other belongings!! When that request was refused, she then sought leave to take them to some Wedding lunch that afternoon - some lunch said to be in celebration of her wedding to Mr. Marques. Needless to say, we refused that request also. It was quite obvious that she wished to keep up the tempo of emotion to the end in the hope that there would be an emotional scene when it came to saying goodbye after the lunch and that something might conceivably come out of it. In situations like this, it is very important that a judge should keep his feet firmly on the ground, and not be swayed by emotion. 41. In my view, the Hong Kong courts should not have been placed in the position of having to adjudicate on the question of custody at all. If the mother had really wished to have the Australian custody order varied, she ought to have taken steps to this end long ago. But I agree that now that the matter is before the Hong Kong courts, the paramount consideration is the welfare of the children; and looking at the matter entirely from that point of view, and having studied the record very carefully, I can find no reliable evidence to suggest that these two children were not perfectly happy living with their father in Australia, that is to say as happy as two children can be with only one natural parent to love, comfort, and guide them; and there is nothing emanating from either of the children, while they were in Australia, to suggest that their step-mother (a woman of the same nationality as their natural father) will not fill the breach, caused by the departure of their natural mother, as well as any step-mother can do in such circumstances. After all, the family have had one year's experience of living together under one roof in Australia. I can find nothing to suggest that the children will come to any harm living with their natural father and stepmother in Holland. 42. I was firmly of the opinion that we should not permit the mother's unilateral actions to disrupt the lives of these two children for one day longer than necessary. I realised only too well that to refuse a stay might mean that the appeal, if successful, would prove nugatory. But I also felt that the chance of the appeal succeeding was so remote that, in all the circumstances, the balance of convenience lay in the Court taking such small risk as there was and permitting the two children to proceed to Holland with their father. After all, these children were never Hong Kong children in any sense of the term. It is the mother who has chosen to make her home in Hong Kong with Mr. Marques. Of course, the children are no longer Australian children either. They are now Dutch children; but I have no doubt that the courts of Holland will be quite capable of adjudicating on any application which the mother may think fit to make in that country.
Representation: Mr. B. Bernacchi, Q.C. and Mr. M. Asome (Messrs. Gunston & Chow) for Appellant. Mr. R. Mills-Owens (Messrs. Deacons) for Respondent.
Representation: Mr. B. Bernacchi, Q.C. and Mr. M. Asome (Messrs. Gunston & Chow) for Appellant. Mr. R. Mills-Owens (Messrs. Deacons) for Respondent. (1) (1879) 12 Ch. Div. at pp. 458 and 59. (2) (1886) 11 P.D. at p.116. (3) (1891) 1 Q.B. 346. (4) (1968) 3 W.L.R. p.430. (5) 1967 Ch.761. (6) (1966) 1 W.L.R. p.381; (1965) 3 All E.R. p.906. (7) (1962) 1 W.L.R. at p.552. |