L v. F

NO. FCMC3480/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 3480 OF 2007

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J U D G M E N T

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1.  This is the parties’ contested application for custody of their younger child of the family, a son who is now 4 ½ years old upon the dissolution of their 8 years marriage. The custody of the elder child, a daughter born to the Petitioner Mother’s previous relationship and who is now 17, has earlier been granted to the Mother without any opposition from the Respondent Father. The Mother is a 40 year old housewife, while the Father is a 57 year old former transportation worker who has since 2003 been unemployed and relying on welfare to support the family. Although the parties are now divorced, for obvious financial reason the entire family is still residing in the Father’s public housing unit at Choi Wan Estate in Kowloon where the Mother and the 2 children occupy one of the 2 bedrooms, and the Father in the other. 

2.  This was a typical cross-border marriage which took place on 25^th January 1999 in China where the Mother was then a resident working as a waitress in a karaoke restaurant, while the Father lived and worked in Hong Kong but would frequently travel to China for leisure, and that was how they first met in 1995 when they soon started a relationship. After the marriage the Father applied for the Mother and her daughter to come to settle in Hong Kong, but before the application was granted the Mother became pregnant with the son who was later born in China on 15^th August 2003. About 6 months later the Mother and the daughter were permitted to come to Hong Kong, while the son remained behind in the care of his maternal grandmother in China until March 2005 when he was also permitted to join the family in Hong Kong.

3.  The family reunion unfortunately did not prevent the marriage from breaking down and in March 2007 the Mother instituted these proceedings for divorce on the ground of the Father’s behaviour, and for custody of the children and general ancillary relief. The decree nisi of divorce was granted unopposed on 13^th August 2007 and, as aforesaid custody of the daughter has since been also granted to the Mother. There is also no dispute over the ancillary relief matter as the entire family has been relying on social welfare since 2003 as it is accepted that the Father has lost his earning capacity due to his age and various health problems, of which I will have more to say later in this judgment, leaving the question of custody of the son adjourned pending the usual social investigation report.

4.  The report, which was submitted to court in August 2007, reveals that while both parents love and care about their son, the Mother has been more involved in the child’s daily care including escorting him to his school bus for school, preparing meals for him and generally spending time with him, who in turn has been observed to have a closer bonding and more intimate relationship with his mother, and that in view of the Father’s chronic pulmonary disease which it is felt may impact on his ability to provide sufficient care for the son, it therefore supports the Mother’s case that custody be given to her with reasonable access to the Father. Unfortunately the parties were still unable to resolve their differences over their son, and so after both have each filed their affidavit on the issue, the matter proceeded to trial during which both parties gave oral evidence, as did Miss Tang the officer who prepared the report.

5.  Ms Tang’s evidence at the hearing was consistent with her report and she maintains her views that the Mother has been the primary carer of the son with whom she has a very good and intimate relationship, and that it would be in the best interest for the son at his tender age to be placed under the care of his mother. She has also observed a good relationship between the son and his elder sister who is a Form 4 student and can assist him with his schoolwork and studies.

6.  On the other hand Ms Tang has given more details of her concern over the Father’s ability in rendering proper care for the son, as he has been observed to spend most of his afternoon napping until around 7 pm when he would wake up for dinner, and therefore has very little interaction with his son who is said to be very active and has complained that his father seldom plays with him or takes him out to the park near their home despite his requests.

7.  Ms Tang also has serious reservation about the Father’s physical ability in the long run due to his health, especially when he still continues to smoke and drink despite his chronic respiratory problem which requires regular medication and follow-up consultation every 2-3 months at Sai Ying Pun Clinic. While I accept, as submitted by Mr. Wong for the Father, that Ms Tang may not be qualified to give a medical assessment on the impact of the Father’s health problems on his parental ability, there is no question that his chronic pulmonary disease is more serious than just some minor ailment, and given the available information as well as her own observations, I cannot say that Ms Tang has no proper basis for her reservation.  

8.  Another concern of Ms Tang about the Father is over his hearing defect in particularly with his left ear which was plain for all to see at the trial during his evidence when he had great difficulty hearing his lawyer who had to lean as close as possible to him in his witness stand when leading his evidence in chief, and even then his questions had to be repeated loudly at least 3-4 times before the Father was able to answer. It is not clear why the Father is not using any hearing aid, but Ms Tang is particularly worried that he may not be able to hear his son should there be an accident at home.

9.  There was in fact no factual dispute from the Father about Ms Tang’s report or her evidence which was in my view straightforward, consistent, pragmatic and impartial, and the Father’s disagreement is simply with her recommendation over custody.

10.  His case is as set out in his affidavit of 28^th August 2007 that the Mother is a hot-tempered person who always scolds the children with foul language, that she is impatience with the children and would sometimes use corporate punishment on them, and that in fact he himself has been a major care-giver of the son both physically and financially since his arrival in Hong Kong.

11.  However, not only is his allegation of being the major care-giver of the son in direct contrast with Ms Tang’s observation, the Father also accepted under cross-examination that he has little interaction with his son after school as he would usually be resting in bed or taking a nap in the afternoon, while on every Wednesday and Saturday he would be out of the house betting on horse races at some betting station. I believe he has simply exaggerated the importance of his role in the care of his son.

12.  The same can also be said about his other allegations against the Mother for using foul language and corporate punishment on the son, both of which were in fact frankly admitted by the Mother to have occurred before but only on rare occasions and were mainly confined to slight slapping of the son’s palms or his buttock when he was naughty.

13.  Having seen and heard the Mother in evidence, I find her to be basically a truthful witness who was able to give good details of her daily care of the son at the hearing, and I do not get any impression of an impatient mother who is easily disposed to inappropriate language or treatment of her children as portrait by the Father, neither did the social welfare officer Ms Tang, as she confirmed at the hearing.

14.  I have no doubt that the Father loves and cares about his son, as does the Mother and reported by Ms Tang both in her report and her testimony, but having seen and heard the Father in person in court, I have to admit that I share Ms Tang’s concern about his ability to take proper or adequate care of his son, not just at present but also in the long run in view of his various health and physical problems, in particularly when the son is said to be a very active boy who, in the Father’s own words, would not stop running and climbing the whole day! It is a sad fact of life that at his present age and condition, the Father’s health and physical ability will not be getting any better, while his son’s needs on the other hand will just grow with his age. 

15.  While it is true that the education background of both parents are quite similarly limited, the Mother does have the assistance of her elder daughter in helping the son with his school work and studies, in particularly when he enters secondary school when the Father has readily conceded his own limitation. The Mother also has the back-up of her sister and her family with whom she has a very good relationship and whom she visits with the children every weekend, while the Father does not have any family member or relative in Hong Kong whom he can count on for assistance in case of emergency.

16.  There is no question that a small child like the son requires much parental care and attention at this stage of his life, and the Father is woefully inadequate in this regard. In conclusion and for all the reasons aforesaid, I agree with the Social Welfare Officer Ms Tang that it would be in the best interests of the son to continue to be under the custody care and control of the Mother, and that the Father shall have reasonable access to him, preferably on a Saturday or Sunday as offered by the Mother. Her future plan is to apply for housing assistance’s from the Housing Department upon the conclusion of these proceedings for herself and the children since the Father is the head tenant of their present residence. As I understand it, the current policy of the Housing Department will probably mean that either the tenancy of the former matrimonial home will be transferred to her and that the Father will have to move to another unit, or that she will be allotted another unit possibly in the same estate or neighbourhood to facilitate the children’s schooling. Either way, I am satisfied that proper arrangement will be made for the son.

17.  Lastly, in view of the fact that both parties are unemployed and dependant on social welfare, and in view of the nature of the application, I do not propose to make any costs order against the Father, save that the parties’ own costs are to be taxed on Legal Aid Regulation, and that the Father is to pay the Mother a nominal maintenance of $1 per annum.

18.  My order is therefore as follows :

(a)  The Petitioner shall have custody care and control of the younger child of the family namely Fung Hin Hin with reasonable access to the Respondent;

(b) The Respondent shall pay the Petitioner a nominal sum of $1.00 per annum for her maintenance;

(c)  There be no order as to costs including any costs reserved save that the parties’ own costs to be taxed in accordance with the Legal Aid Regulations;

(d) There be a Section 18 Declaration.