H v. A

FCMP 186 / 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 186 OF 2003

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R U L I N G

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1. In this case there are two summonses that fall for the determination of the court, both summonses having been taken out by the Applicant father.

2. In the first summons, the father seeks an order for custody of the child D to be granted to himself and the Respondent mother jointly with care and control to the mother and reasonable access including staying access to be granted to himself.  By virtue of the same summons, the father seeks an order that the mother be restrained from taking the child, D out of the jurisdiction of Hong Kong.

3. The mother for her part opposes the application for joint custody and seeks an order for sole custody with reasonable access to the father.  She also opposes the application for the restraining order and seeks herself an order that she be granted general leave to remove D out of Hong Kong from time to time for the purposes of holidays for periods not exceeding 21 days on each occasion.

4. A second summons was taken out by the Applicant father on the first day of the trial, i.e. 25^th October 2004 seeking an order that the surname of the child as appearing in the Registry of Births in JAKARTA be changed from “P” to “H”.  I propose to deal with this summons after dealing with the question of joint custody and access generally including staying access.

5. The relevant legislation concerning the above applications is contained in section 3 Guardianship of Minors Ordinance Cap 13 Laws of Hong Kong.  Section 3 (1) (a) reads “in any proceedings before any court the court

(i)	shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to –
	(A)	the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
	(B)	any material information including any report of the Director of Social Welfare available to the court at the hearing; and
(ii)	shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father”.

6. Section 3 (1) (b) “except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other”.

7. As the child in question is illegitimate, section 3 (1) (c) takes on some significance and states, “where the minor is illegitimate,

(i)	a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;
(ii)	a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d)”.

8. For the sake of completeness section 3 (1) (d) states “the Court of First Instance or a judge of the District Court may, on application where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate”.

9. It is of course with these principles very much in mind that I have reached my conclusions with regard to the various applications before me.

10. Before dealing with each of the specific applications before me, it is necessary, I think, to dwell somewhat on the facts many of which are not in dispute but are unquestionably unusual.

11. The Applicant is a pilot employed by the Cathay Pacific and the mother a flight attendant working for the same company.  They formed a relationship with each other in 1997 which lasted until sometime in 1999.  In 1999 the mother met a Mr P who lived in Jakarta, this relationship continued and I am told is still continuing but in the middle of 2002 the mother started seeing the Applicant again and in October of that year she discovered that she was pregnant.  The mother assumed that Mr Pn was the father of his then unborn child.  She informed the Applicant of this and terminated her relationship with him.  On 13^th May 2003 the child was born and the mother registered his birth with the Civil Registry Office in Jakarta.  On the birth certificate the child is named as D  Parkin and Mr P is identified as the child’s father.

12. According to the Applicant, he believed that he was the natural father of the child so in July of 2003 he suggested to the mother that they undergo a DNA test, to which she eventually agreed.  The result of that test establishes beyond doubt that the Applicant is the father of the child.

13. By all accounts, when the mother received news of the results of the DNA test, she was devasted.  She had formed a relationship with Mr P and had always assumed and hoped that he was the father.  Indeed, at the outset, it seems that the mother did not accept the results of the DNA testing and persuaded the Applicant to undergo another DNA test in September which only confirmed the result of the original test.

14. It does not appear to be in dispute that the parties have not spoken to each other face to face since July 2003.  Mr Firman on behalf of the mother accepts that no blame whatsoever can be attributed to the Applicant for this.  It is the mother’s case that she has been unable to deal with the knowledge that her son is the child of a person whom she does not want to be part of her life.  In evidence the mother confirmed that prior to giving birth to D in May last year, she had never sought treatment for mental health.  However, since discovering that the Applicant is the father of the child, she has consulted psychiatrists, psychologists and counsellors and is currently taking anti-depressant medication.  With regard to the mother’s relationship with Mr P, she confirmed that she had not seen him since the middle of 2004 but she was in regular telephone contact with him.  It was a conscious decision between herself and Mr P for her, the mother, to stand on her own two feet and face the situation herself.  Whilst the mother conceded that she had never mentioned the question of marriage to Mr P either to the social welfare officer or in her affidavit, she did say under cross-examination that she had formed the intention to marry him sometime after D’s birth.  In any event, she confirmed that she received both emotional and financial support from Mr P and I believe it is not in dispute that the mother and Mr P have bought a flat in Discovery Bay which is registered in their joint names.

15. I propose now to deal with the question of joint custody and access, including staying access.

16. In the normal way of things, an application by the father for joint custody of an 18 month old child is rather unusual.  However the application is motivated, the Applicant says, out of a genuine concern for D’s best interests.  He said in evidence that he feels that the mother is attempting to exclude him from D’s life.  An example of this he said was the failure on behalf of the mother to inform him of D’s christening in May.  As in the case of himself, the mother is quite often out of Hong Kong due to the nature of her job and if the parties can co-operate with regard to the exchange of flight schedules, the applicant envisages a situation where at any one time either himself or the mother would be in Hong Kong to manage D’s affairs.  In view of the fact that both parties live close to each other in Discovery Bay, this would present no problems.

17. At the present time, the Applicant has access to D at least twice each week for a period of seven hours from 10:30 am to 5:30 pm.  He confirmed that D interacts well with him, he does all the normal things that fathers do with small children, he reads to him, takes him swimming, plays with him and so on.  D has his own bed room in his father’s flat and the relationship he says between himself and his son is perfectly natural.  He sees no reason why he should not be a joint custodian of D as he quite naturally wants to be involved in his life.

18. There is a concern on the part of the Applicant as to the stability of the mother.  He made brief reference in his evidence to an incident when the emergency services were called out to the mother’s house in the middle of the night, the suspicion being that the mother may have taken an overdose of pills.

19. A major concern of the Applicant is of course the mother’s refusal to communicate with him.  He finds this frustrating.  He confirmed in evidence that he wanted to work together with the mother to bring up D which he considers could be achieved through conversation.  However as he said “Leony won’t talk to me.  I’m not sure why that is.  I try and do whatever she wants me to do, I try and help her whenever I can”.

20. The mother of course opposes the Applicant’s claim for joint custody.  She seeks sole custody.  In evidence the mother did not specifically spell out her reasons for opposing the application, but the thrust of her evidence appears to be that she is not yet ready to communicate with the Applicant who she finds to be demanding and overbearing.  Whilst she acknowledges that the Applicant is bound to have a role to play in D’s life it seems that she envisages a situation sometime in the future of settling down with Mr P and the three of them living together as a family.  The question of financial support also appears to weight heavily on the mother’s mind.  She confirmed that she currently received $14,000 each month from Mr P who also shared in the payment of the mortgage.  She considered the Applicant’s offer to contribute $2,000 each moth toward the support of D to be insulting.  Her actual monthly expenses for D appear to be somewhere in the region of $7,000 each month.

21. I had the benefit of a social investigation report from Mr Roger Laine dated 11^th May 2004 who came to certain recommendations with regard to custody and access for the court’s consideration.  He also gave oral testimony in court and confirmed his recommendation with regard to custody by indicating that in his view sole custody to the mother would be in the best interests of the child.  For myself, I am bound to say that I found Mr Laine’s report to be woefully inadequate.  His report is no more than four pages in length and glosses over some of the real and practical difficulties that this case presents.  His recommendation appears to have been arrived at upon the simplistic view that the parties are unable to resolve their differences coupled with the lack of communication.  Similarly the evidence the Mr Laine gave I found to be less than satisfactory.  Even on his account, he spent only a total of two hours with each parent prior to the preparation of this report.  The Applicant disputes this and claims that he spent only some forty minutes with him.  In view of the perfunctory way in which Mr Laine gave his evidence I find that I cannot dismiss the Applicant’s claim with regard to time.

22. Both the Applicant father and the mother of course gave evidence in court and were cross examined.  I must say that I was most impressed with the father as a witness.  He gave his evidence extremely well and came across to me as being a decent father who is genuinely concerned as to the interests of D.  At the same time he appeared to be sympathetic and understanding to the unfortunate position that the mother faces.  By contrast I found myself having some difficulty with the evidence of the mother.  In particular her relationship with and allegation that she intends to marry Mr P at some time in the future seemed to be vague.  The question of marriage to Mr P had never been mentioned by the mother in her affidavit and only arose in the course of cross-examination.  The reality of the matter is that the mother on her own admission has not seen Mr P since June or July 2004 and the sincerity of her intention to marry Mr P must be in some doubt.

23. With regard to the question of communication or rather lack of it, I also have a degree of uncertainty with regard to what the mother says on this issue.  The fact of the matter is that the parties must be communicating with each other.  After all, it is a fact that access to the Applicant has dramatically increased from no more that an hour or so at the beach in the early days to seven hours at the Respondent’s home twice each week.  This can only have been achieved through communication.

24. I turn now to my findings with regard to the question of joint custody and access generally.  With regard to custody, I have been ably assisted by both Mr Egerton and Mr Firmin for the cases they have put before me and their helpful analysis.  However each case must depend upon its own facts having regard always to the interests of the child.  Mr Firmin on behalf of the mother urges me not to make an order for joint custody as he says there is for whatever reason a lack of communication on the part of the mother.  I have already stated that I have doubts about this, but even if I am wrong, the question must be asked “why will she not communicate ?”.  If it is simply a case that she chooses not to because she does not like the idea of the Applicant being the father of D, then this can surely never be accepted.  Put another way, is it right for a party (in this case the mother) to stand in the way and deny the other party (in this case the father) fundamental rights over his child by simply asserting that she cannot, or possibly chooses not to speak to him?  The answer to this must be no.

25. Of course, a natural element of joint custody involves co-operation, but the mother cannot be allowed to say simply that she is unable to co-operate and thereby have the court endorse her rights to sole custody.  In my view she must be encouraged to co-operate and this can be done quite properly by way of a joint custody order, particularly as in this case it brings with it the safeguard of having one parent in Hong Kong to make decisions on behalf of the child, possibly urgent, when the other is out of Hong Kong, flying.

26. As there is no issue with care and control, I accordingly make an order that custody of the child be granted to the Applicant and Respondent jointly with care and control to the Respondent.

27. With regard to the question of access, it seems to me that this is to a large extent dependent upon flight schedules.  When both parties are in Hong Kong, I am satisfied that the present arrangements, this is, the father to have daily access to D twice each week from 10:30 am to 5:30 pm are satisfactory.  This could be increased as D gets older, but for the moment, I feel it is sufficient.  However in the event that the mother is out of Hong Kong and the father here, I see no reason why he should not have access to D during those days, again from 10:30 am to 5:30 pm.  With regard to staying access whilst I am aware that D is still young, only 20 months of age or thereabouts, he is quite familiar with the Applicant and I see no reason why the Applicant should not have staying access to D once each month from Friday 6:00 pm to Sunday 6:00 pm.  I am prepared also to order that the Applicant have access to D for holidays at this stage for periods not exceeding two weeks in any year.  I do not however feel that D is old enough to be away from his mother for long periods of time so as far as holiday access is concerned.  I therefore for the moment restrict it to holiday access to be taken in Hong Kong only.  For the avoidance of doubt, I do not at this stage grant leave to the Applicant to take D out of the jurisdiction of Hong Kong.  I make orders for access in the above terms accordingly.

28. I turn now to deal finally with the remaining applications, that is the Applicant’s application restraining the Respondent from taking the child out of the jurisdiction.  This is completely unmeritorious.  There is no reason for the Applicant to believe that the mother will, so to speak, kidnap the child.  The mother lives in Hong Kong, she has a flat here, her job is based in Hong Kong.  She has taken D out of Hong Kong to Jakarta on numerous occasions and on each occasion she has returned to Hong Kong with him.  The application is dismissed.

29. The mother, for her part, seeks an order that she be allowed to take D out of Hong Kong for the purposes of holidays for periods not exceeding twenty-one days.  I am satisfied that it is perfectly proper for me to make such an order upon the mother’s undertaking which I am given to understand she gives, to give details to the Applicant as to where the child will be staying and a contact address and telephone number.  There is a further undertaking which the mother has given and goes without saying on applications such as this, that she will return D to Hong Kong at the end of each holiday.

30. By his summons dated 25^th October 2004 the Applicant seeks  a change of the child’s surname from P to H.  I have considered this matter very carefully and have come to the conclusion that I have no jurisdiction to deal with this as necessarily it would involve a direction to the authority in Jakarta were I to be so minded to accede to the application.  However in any event the birth certificate as it stands is defective because Mr P is not the father of D and D should not be known as D Parkin.  I am aware that the birth certificate can be amended at a certain fee and through his counsel, the Applicant has undertaken to be responsible for any fees incurred, accordingly I direct that upon the Applicant’s undertaking to be responsible for any fees or charges necessarily involved in an amendment, that the mother approach the Births Registry in Jakarta and take all steps to have the name P deleted from the birth certificate so that the child be referred to as D.

31. Finally, whilst there is no summons formally before me for maintenance of D, the question of child support did arise in the course of the hearing and there has been correspondence between parties’ respective solicitors with regard to this matter.  It can have taken the Applicant by no surprise that the court would see fit to deal with this matter despite the absence of a summons.  The mother puts her monthly expenses for D at something in the region of $7,000 each month or thereabouts.  I see no reason why the Applicant should not share these expenses and accordingly there will be an order that the Applicant do pay as maintenance for the child the monthly sum of $3,500, the first payment to be made on 1^st January 2005 and subsequently the first day of each succeeding month, the payments to continue until the child reaches the age of 18 or completes his full time education whichever is the later.

32. Finally I make no order as to costs.