Uls v. Erj
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FCMC 16107 / 2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 16107 OF 2011 ----------------------------
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________________ J U D G M E N T ________________ Introduction 1.This is an application by a Petitioner father for sole custody and care and control of the youngest child of the family, a little boy, UL junior who is now 3 years of age. He also seeks final orders for the elder two children. He presently has interim custody of both. The Respondent mother for her part seeks sole custody and care and control of the youngest child. She also proposes defined and supervised access to the father. She does not contest a final order in favour of the father for the two eldest children of the family, but she would like access to them. Neither party seeks joint custody of the children. 2.This case concerns the practical arrangements for a small child where each party has made a number of serious allegations against the other. The father accuses the mother of child abuse whereas the mother says that the father is a habitual drug user. She also says he is an alcoholic. She accuses him of being very violent towards her on at least two occasions. There are also immigration issues with the mother maintaining that the father made the complaint of child abuse because she had decided not to sponsor his application for permanent Hong Kong residence following an incident of violence perpetuated by him against her. The father denies this and says that he did not need the wife’s support in any event. The issues 3.The present issues before the court are:
Background 4.The parties, who are both from the Philippines, married in April 2006. It was the second marriage for both of them. The Father has two children by his first marriage that are now over the age of 18 years and self supporting. The father lives with one of his elder son’s in a small unit in Jordan. Both he and his son are chefs and he presently works shifts with a period of rest in the afternoons. The mother also has a son by her first marriage who is nearly 15 years of age. He resides with her and the UL, the youngest child of the family, who is the major focus of this judgment. The mother used to work as a waitress but since the birth of UL she has relied on CSSA. She and the son by her first marriage together with UL live in a public housing unit that is meant for one person. She accepts that she will need to find alternative accommodation in due course. 5.As indicated above there are two elder children who are also children of the family – a girl who was born in December 2004 prior to the marriage and who is now 8 years of age and a little boy who is just 5. They both reside with their paternal Grandparents and extended family in the Philippines. According to the International Social Welfare Report they are well taken care of. The father has interim custody of both children on that basis. The mother has not seen them for a considerable period of time. It seems that the extended family believe that the mother abused the elder daughter. 6.The father claims custody of the youngest child because he wishes all three children to be brought up together. Initially he said that he wanted to take the youngest child back to the Philippines. However during the trial he also said that he was contemplating bringing the elder two children back to Hong Kong. It is not clear how he intends to care for those children properly if he were to do so given his present work commitments and his crowded living conditions save that he told the second social welfare officer that he would employ his sister as a domestic helper to assist in child care. 7.As stated above the father also claims that the mother was found guilty of physically abusing the eldest daughter and on that basis he argues that she should not be allowed to care for UL. As will be seen the father’s claims in this respect did not fully come up to proof. The law in Hong Kong Custody, Care and control, access and shared care 8.The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.
9.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that: GENERAL PRINCIPLES
Discussion 10.I must now turn to consider the issues, the law and the parties evidence as set out in the parties affidavits and as given orally by them during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court. 11.I have heard evidence from the father and the mother and two social welfare officers. In view of the allegations made should custody vest in the sole name of the mother, or in the sole name of the father or should some alternative order be put in place for the youngest child of the family? 12.The father maintained that the mother had been found guilty of child abuse and he produced copies of medical reports from the Queen Elizabeth Hospital in support of his case in that respect. The difficulty with this is that the medical reports were largely self serving in that they reported what the father had told the hospital, which was that the mother had hit the daughter. The daughter herself is also reported to have told the hospital authorities that her mother frequently beat her. The child was 5 years old at the time. According to a subsequent Progress Note dated the 29 October 2010 the father “refused to reveal exact event history” and the elder son from his first marriage said that he did not want to get involved. 13.The handwritten note of the 12 November 2010 from the hospital recording the Multi Disciplinary case Conference said as follows: MDCC today (Multi Disciplinary Case Conference)
Conclusion
In view of bruises at different stages lesion compatible = finger nail pinch Established physical abuse case Mother is the highly suspected abuser from present history as no identifiable person so far Welfare plan CPSU follow up the case Put on child abuse registry Medically fit for discharge Back to father’s home (1 floor below mother’s home and child care assistance from 17 year old child) 12 year old child and 5 month old child – (positive comments on both 12 year child’s school and comment good care of mother on child care) Continue monitoring child care of both children under mother’s care. Home and discharged to patients father. No need for medical follow up. 14.The inpatient consultation form confirmed that there were old scars over the child’s face, neck and trunk. 15.The 1st social welfare report also confirmed that the Multi Disciplinary Case Conference had stated that this was a child abuse case despite the mother’s denial. 16.According to the mother, the father had fabricated the whole thing because he had wanted to get back at her for refusing to sponsor him. She said that although she had been charged with child abuse that the father and the father’s elder son did not turn up at court and she was immediately acquitted following her plea of not guilty. However she also said that she was not present at the MDCC – which appears to be untrue from the note on the file. 17.Given these inconsistencies I asked for a police report from both parties. Legal Aid Counsel followed this up and on the 4 September 2013 he wrote to the court and said as follows:
18.Subsequently the mother filed an affidavit dated the 10 September 2013 confirming that she had been verbally informed by the Police that she did not have a criminal record. I accept what she says in this respect. 19.On the 5 September I received a further letter from the Legal Aid Department which stated that:
20.To date nothing further has been received from the father notwithstanding my clear indication in court that clarification should be obtained from the Police. 21.The other difficulty I have is that the child was under the father’s primary care at the time of the alleged incident. He confirmed that he had brought the child back from the Philippines in the summer of 2010 and that he and the mother were living separately from each other at that time. The mother confirmed that the parties were living separately and had done so since November 2009. The child may not have known the mother well having spent the majority of her early years in the Philippines. It is not clear why she would have been in the mother’s care at the time of the alleged incident. The mother said that it was her belief that the child was abused by the girlfriend of the elder son who was living with the father. Certainly it does not seem that this possibility was investigated. In any event the child was returned to the father. She remained in Hong Kong for the remainder of the academic year and returned to the Philippines in the summer of 2011. She does not appear to have had any contact with the mother following the alleged incident. 22.Given all of the above, although I do of course accept the findings made by the Multi Disciplinary Case Conference at that time, I do not accept for present purposes that the possibility that the mother may have abused the daughter is sufficient reason for placing UL in the father’s care now, especially given the other factors that need to be taken into account. Allegations of domestic violence, drug abuse and alcoholism 23.The mother maintains that there were two serious incidences of violence. The first in June 2007 and the second in February 2010. In her affidavit dated the 15 February 2013 she says as follows:
I accept that there were at least two incidences of domestic violence where the father injured the mother and that this was probably fuelled by alcohol and/or drugs. 24.The mother maintains that the father is a drug addict and that he snorts a “white powder”. She says that the father used UL’s urine in order to circumvent the court’s request for a drug test previously. Consequently the court directed that the father produce a further report. This time the petitioner was to provide a drug test from hair analysis. The Petitioner undertook to provide the drug test within 14 days i.e. on or before the 15 August 2013. To date no such test has been received. Again the Legal aid Department have followed this up. On the 4 September they wrote as follows:
25.For the avoidance of doubt it did not seem to me that the petitioner’s hair was quite so short when he was last in court. It seems that he is doing everything in his power to circumvent the court’s direction in this respect. The inevitable conclusion is that he has something to hide. All in all I accept that on the balance of probabilities that it is very likely that the Petitioner is a habitual drug user. The Father’s visa 26.The mother claims that the father fabricated the story about child abuse because she had decided not to sponsor him. She says that his visa was due to expire in November 2010 and that she informed him on the 28 October 2010 that she had decided not to sponsor his application for a permanent visa in Hong Kong. She says that he threatened her and on that very day made the report about child abuse to the authorities. 27.On examining the father’s passport and Hong Kong ID card it is clear that he does not have a permanent Hong Kong ID card and that presently he has permission to remain in Hong Kong until the 21 September 2014. Prior to that he had other visa’s giving him permission to remain until the 21 September 2012 and the 10 November 2010 respectively. But the father was evasive when cross examined about the basis for his visa. He is a chef so clearly he is not on a domestic helper’s visa. It was not clear from the documentation if he has a work visa. The letters that he produced from the Immigration Department did not cast any light on this issue. When asked by the Legal Aid counsel if he had been permitted to remain in Hong Kong because of the present proceedings he did not answer directly. He said that he had applied for permanent Hong Kong residency when even on his own case he had another three months to go before he was eligible to apply. 28.Given that I am inclined to believe the mother that the father was very angry when he found out that she had decided not to sponsor him. I certainly think that it is possible that he decided to fabricate the story about child abuse – although clearly the child had actually suffered some form of abuse at the hands of somebody and over an extended period of time. I don’t accept the father’s assertion that he did not need the mother’s support. It should also be noted that although the father issued divorce proceedings on the 17 November 2011 that he has not taken any other steps to progress the matter. He undertook to apply for directions for trial in relation to the same at the end of the hearing on the 1 August. To date he has not done so. The implication is that the father may have got an extension of his visa because of these current proceedings. This cannot be verified however. The Social Welfare Reports 29.Recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. First report dated the 15 February 2012 30.In the first report dated the 15 February 2012 the Social Welfare Officer confirmed that the two elder children had been taken back to the Philippines shortly after their birth and had been mainly under the care of their paternal Grandparents whereas UL had been looked after by the mother in Hong Kong since his birth. The maternal Grandmother lives in Hong Kong and she together with other family members also assist the mother in helping to take care of UL and the mother’s eldest child as required. Given the circumstances the mother has been reluctant to let the father have a lot of contact with the son. 31.It is clear from the report that UL is closely bonded to his mother and that he has been well taken care of. Conversely he did not really know the father and initially at least was uneasy in his company. 32.In conclusion the Social Welfare Officer said:
33.The Social Welfare officer recommended sole custody of the child to the mother with reasonable access to the father, such access to be supervised either by the mother or someone assigned by her. 34.When asked by the court, the 1st Social Welfare Officer said that he did not think that there was any need for the arrangement to be supervised by the Social Welfare Department. I now fully accept that to be the case. 2nd updated report dated the 9 July 2013 35.This report reiterated the findings of the first report namely that UL was close to his mother and well cared for by her. In contrast he cried heavily when he saw the father and had to be coaxed to spend time with him, with the active encouragement of the mother. Eventually the father is reported as saying that he would let the judge decide the custody issue and he asked for access once a week. 36.In conclusion the second Social Welfare Officer said:
I agree with that recommendation. The character of the parties 37.Neither party came across as being completely credible although the mother was certainly a lot more credible than the father. I would certainly have some concerns if the father was to take up the main care taking role of the two elder children. I accept that the father has a tendency towards violence and that he is also likely to have a drug and/or alcohol problem. Conclusion 38.Given the present circumstances it seems to me that the welfare of UL is best served at the present time by an order for sole custody in favour of the Respondent mother. I also accept the recommendations made by the social welfare officer as set out in paragraph 36 above with respect to access. What orders should be made for the two elder children of the family? 39.The father asks for a final order for custody of the two eldest children of the family with reasonable access to the mother. The mother does not contest this. The International Social Investigation Report dated the 13 August 2012 confirms that the children are receiving very good care from their paternal grandparents and extended family in the Philippines. On that basis I will somewhat reluctantly make the order that the father seeks. What access arrangements should be put in place for all three children once the issue of custody has been determined? 40.Access is the right of the child. Consequently the father shall have access to UL as set out above and the mother shall have reasonable access to the two elder children. Attempts should be made to ensure that that does happen – although clearly the mother will need to take things slowly given the history of this particular case. The father will need to ensure that just as he has access to UL in difficult circumstances that the mother too has access to the two elder children. Costs 41.There shall be no order as to costs. The mother’s own costs shall be taxed in accordance with legal aid regulations. Orders 42.Consequently I will make an order as follows:
The Petitioner appeared in person Mr Poon of the Legal Aid Department acted for the Respondent | ||||||||||||||||||||