L v. S

FCMC 1630/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1630 OF 2013

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JUDGMENT
(Variation of Maintenance and Custody Orders)

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1.  This is a hearing of the petitioner mother (“the mother”)’s application for variation of the maintenance order dated 20 February 2014 (“the maintenance order”) and the custody order dated 23 January 2013 (granted in FCMC 7382/2009) (“the custody order”).

2.  The respondent father (“the father”) opposes both applications.

Background

3.  This case has a rather long history.

4.  The parties were married in 1998.  

5.  Within wedlock, a son (“R”) was born who is now aged 13.  Apart from R, the mother has another son (“N”) from a former relationship and it is common ground that N is not a child of this family.  N is already an adult but still receiving education from a local university.   At present, the mother is residing with R at a flat in Tai Po (“the former matrimonial home”) while N stays at the university dormitory most of the time.

6.  On 17 June 2009, the mother issued a petition for divorce based on behaviour (FCMC 7382/2009), which was defended by the father.  Eventually, the parties came to an agreement for the mother to issue a new petition based on 2-year separation (FCMC 1630/2013) resulting in a decree nisi being granted on 17 April 2013, which decree was subsequently made absolute on 19 March 2014.

7.  Upon the parties’ consent, this court has, on 23 January 2013, granted the custody of R to the mother with reasonable access to the father, including access once every two weeks and on special dates including R’s birthday, Easter, Christmas and New Year holidays.

8.  As for ancillary relief, an agreement was reached on 20 February 2014 in which various undertakings were given and the following orders being made by this court:

(1)   Upon the father’s undertakings:

(i) To pay the school fees of R;

(ii) To pay for the private tuition of R;

(iii) To pay the management fee of the former matrimonial home;

(iv) To pay the government rates of the former matrimonial home;

(v) To pay the government rent of the former matrimonial home;

(vi) To provide medical insurance for R;

(vii) To redeem the mortgage of the former matrimonial home (which stood at about $4,100,000) and transfer the property to the mother, for her to hold the same on trust for R;

(viii) To sign the documents to be prepared by the mother to discontinue his claims on the mother’s Vietnamese properties at the sole costs of the father.

(2)   Upon the mother’s undertakings:

(i) To hold the former matrimonial home on trust for the benefit of R;

(ii) To transfer the former matrimonial home to the sole name of R upon R attaining the age of 21.

(3)   By Consent, the following orders were made:

(i) The father shall transfer his title and interest in the former matrimonial home free of mortgage into the name of the mother on or before 28 February 2016 for her to hold the same on trust for R at the sole costs of the father.

(ii) The mother shall transfer the former matrimonial home into the sole name of R upon his attainment of the age of 21 at the sole costs of the father.

(iii) At the time of transfer, the lis pendens on both the former matrimonial home and another property are to be discharged at the sole costs of the father.

(iv) The father shall pay $11,000 per month as maintenance for the mother.

(v) The father shall pay $10,500 per month as maintenance for R.

(vi) There shall be no order as to costs, including all costs reserved.

9.  Despite the making of the consent order, the parties’ disputes continued, resulting in the mother taking out the present applications on 4 September 2014, which was barely 6 months after their agreement.

The mother’s case

10.  As the mother is acting in person and speaking with a heavy accent, it has been quite a task to appreciate her case even with the assistance of the interpreters.  But doing the best as I could, my understanding of her case is as follow.

11.  In her supporting affirmation, the mother first set out her complaints against the father for not providing full medical insurance for R who was in need of psychological treatment.   She also complained about the father not providing the funds for R’s orthodontic treatment.  Therefore, she asked the father to take back the custody of R.

12.  In her oral evidence, she supplemented that she had difficulty in controlling R who has even hit her when he failed to control his temper.   Therefore, R was obviously in urgent need of psychological treatment.  She said private treatment was needed because government psychological service needed a long waiting time and the first appointment would only be available in about 6 months’ time.   Furthermore, the employment of a domestic helper is also necessary who can also help R to learn English.

13.  In her first written submission, the mother set out the following additional financial reliefs that she now needed from the father:

(1)   A lump sum so that she could pay any cash deposit or emergency medical treatment before being reimbursed by the medical insurance provided by the father’s employer.

(2)   Payment for the utilities’ charges of the former matrimonial home.

(3)   Extra payment of $5,000 per month for R’s meal, activities and holidays.

(4)   The father to purchase premium package insurance for R at $2,500 per month and allowing the mother to claim reimbursement directly from the insurance company.

14.  In her second written submission, the mother has also levied various attacks on the integrity and competency of the social investigation officer which runs for a total of 7 pages, the purpose of which is to persuade this court not to adopt the contents and recommendations of the social investigation officer.

15.  At the hearing, I have already made it clear to the mother that this hearing will focus on nothing else but her summons dated 4 September 2014 in which she raised the following 4 issues:

(1)   The full medical insurance coverage of R;

(2)   R’s psychological treatment;

(3)   R’s orthodontic treatment; and

(4)   The change of custody from the mother to the father.

The case for the father

16.  The father has not filed any affirmation apart from a written submission.   At the last call over hearing, the father indicated that he was not going to give factual evidence and he even accepted openly that he was in a position to pay the financial reliefs if he should be ordered to do so by this court, although this might mean that he had to divert resources from his other capital to meet the obligations.

17.  In his written submission, the father is of the view that R has all along being taken care of by the mother.  As the father has a rather busy working schedule and the fact that he is only living in a very small apartment, he submits that the continuation of the present custody arrangement will be in the best interests of R.  

18.  As to the additional financial reliefs asked for by the mother, the main thrust of the father’s argument is that the maintenance for R has already been settled by agreement on 20 February 2014, during which the issue of R’s medical needs have already been canvassed. The mother should not be allowed to renege the agreement after such a short period of time.

19.  Furthermore, the father also pointed to the fact that the mother has failed to provide credible evidence on the quantum of the additional maintenance that she is asking for, and the fact that free psychological treatment could be provided by the Social Welfare Department within some reasonable time as confirmed by the Clinical Psychologist (Mr Chan) who has also given evidence in court.  

20.  Finally, the father reiterated that the mother had substantial investments which she had not disclosed and therefore, her application for additional maintenance should be refused.

The mother’s application for variation of the custody order

21.  I propose to deal with the mother’s application for variation of the custody order first.

The Law

22.  The Court’s jurisdiction to make a custody order (which would necessarily include the issue of care and control) can be found in s. 19 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”), which states:

“(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 –

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

(b) ----- “

23.  Section 48C of the Matrimonial Causes Ordinance, Cap. 179 (“MCO”) provides that s. 3 of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) shall apply in relation to any order for the custody, care or supervision of a child which may be made under MCO or MPPO.

24.  The general principles as set in s.3 of GMO are as follows:

“(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the best interests 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

-------“

25.  In short, the court, in adjudicating on any dispute concerning the custody, care and control of a minor, has to consider what arrangement will serve the best interests of the minor.  In so doing, the court has to give due consideration to the wish of the minor and also the reports of the Director of Social Welfare.

The social investigation report

26.  Social Investigation Officer, Ms Lee was called to give evidence which was basically in line with the contents and recommendations of her written report.   In the report, Ms Lee said the mother was angry as the father has “breached” the court order in failing to exercise his access right in seeing R regularly.   This has caused emotional distress on the part of R who now even refused to attend school.   The mother viewed the only way to force the father to take up his parental responsibilities was to give up her custody, care and control of R.   But on the other hand, if the father is willing to purchase a premium insurance policy for R, hire a domestic helper to assist her and to pay their maintenances in a lump sum, the mother might be willing to take care of R continuously.

27.  However, as observed by Ms Lee, R has all along been taken good care of by the mother even though she has now expressed difficulties in supervising R, getting him to school and managing his temper.   The mother-son relationship is very close and the mother has shown great concern on R’s health and emotional conditions.   It seems that the mother’s application for giving up R’s custody is more a gesture to punish the father’s irresponsibility and to fulfil some of her requests.

28.  In her final conclusion, Ms. Lee is of the view that maintaining the present care arrangement and thus avoiding drastic change to his daily living will be in the best interests of R.   Therefore, it was recommended that the status quo is to be maintained, ie sole custody, care and control to remain with the mother and the father shall have reasonable access as previously ordered.

29.  In the final part of her report, Ms Lee also pointed out that clinical psychological service would be beneficial to R but warned that if the parties could not come to settle their conflicts even after their divorce, more emotional disturbances would be expected on R and the effectiveness of any psychological assistance to be given to R would be very limited.

The clinical psychologist report

30.  Clinical Psychologist, Mr Chan has prepared a report and he has also given evidence in court.   It is to be noted that the focus of this report is more on the psychological assessment of R’s emotional conditions than on whether his custody should be varied and given to the father.

31.  According to Mr Chan, R is assessed to be suffering from emotional disturbances and exhibiting behavioural problems in terms of school non-attendance and aggressive temper outbursts against the mother.   He agreed with the father’s suggestion in court that R was obviously suffering from separation anxiety disorder (which was also the diagnosis of R’s conditions made by a psychiatrist of the Alice Ho Miu Ling Nethersole Hospital (“AHNH”)) in that R was experiencing emotional distress when his care arrangement has become uncertain.   Obviously, the conflicts arising out of the present proceedings have contributed to R’s anxiety in this respect. 

32.  In his concluding remarks, Mr Chan is of the view that psychological treatment service is deemed warranted for R but he cautions that the effect of individual psychological treatment to help R is bounded to be very limited if the parents are continued to be trapped in fights and unable to come to a mutually agreed and stable plan for the future care of R. 

My views

33.  After considering all the circumstances of this case, in particular, the evidence of the parties, the experts’ reports and the wish of R, I have come to the conclusion that the continuation of the present custody order will be in the best interests of R. My conclusion is based on the following reasons:

(1)   There is no dispute that R has been taken good care of by the mother since birth.  A variation of the custody order will be a drastic change for R who is already suffering from serious psychological distress due to the continuing conflicts between his parents.

(2)   The mother is a full time housewife while the father is a busy banking executive with a need for frequent travel out of Hong Kong. Although the mother has suggested that she will agree to allow the father and R to stay at the former matrimonial home and she would visit R daily to give assistance to the care of R, I do not think it is a practical or workable arrangement. The mother has also suggested the father to engage a domestic helper to look after R, but obviously this mode of care arrangement must be inferior to the present arrangement in which R is being looked after by his loving mother.

(3)   After considering the mother’s case very carefully, I have some doubts on the mother’s motive in making this application.   It is quite obvious that the mother is very angry with the father because, according to her, the father is being “irresponsible” in not visiting R regularly.   I agree with the social investigation officer’s observation that this is an attempt to punish the father for his “irresponsibility” more than anything else.

(4)   I am of the further view that this application for variation of custody is also financially motivated.  As one can see from the mother’s presentation of her arguments, her concerns were mainly financial.   In her summons, the first 3 requests were all financially related.   During the hearings, especially the earlier hearings, the impression that I got from the mother was that the father should provide for better medical coverage or treatment for R , failing which she has to give up the custody of R. 

(5)   There is little dispute that the mother-and-son relationship is much better than the father-and-son relationship.   R has refused to see the father at all and it is the clear wish of R to stay with the mother.   R is already 13 years of age and his view has to be given sufficient weight.

(6)   It is the recommendation of Ms Lee, the social investigation officer that any change of custody at this stage will not be in the best interests of R.  Although Mr Chan, the psychologist, has not made such a clear recommendation, but the overall impression that I gather from his evidence is that any change of the present care arrangement is also not in the best interests of R.   I fully appreciate that the mother has levied a lot of criticisms especially on the social investigation officer, which I do not find to be well founded.

Conclusion

34.  Based on the above reasons, I am of the view that any change of R’s custody and care arrangement at this stage is not in the best interests of R and therefore, the mother’s application for variation of the custody order has to be refused.

Financial issues

35.  It is part of the mother’s case that if the custody of R should remain with her, the father has to provide the followings:

(1)   Full medical insurance for R;

(2)   Pay for R’s psychological treatment; and

(3)   Pay for R’s orthodontic treatment.

36.  For the claim of full medical insurance for R, the mother’s argument is that under the current group medical insurance provided by the father’s employer, not the full amount of medical expenses could be reimbursed.   Furthermore, in submitting such a claim, the father always demanded the handing over of the original payment receipts but at the same time refused to acknowledge receipt of those original documents.   The mother said the father was not to be trusted and so she refused to hand over those original receipts.  According to the mother, this is highly unsatisfactory and therefore, she asks for the father to purchase a premium medical insurance for R with a condition that she could lodge the claim directly with the insurance company instead of through the father, whom she no longer trusted.   She said the cost of such a premium insurance would be $2,500 per month and if allowed, that would also cover R’s orthodontic treatment.

37.  For R’s psychological treatment, there was no quantification in the mother’s supporting affirmation.  But in one of her previous document to the father dated 1 September 2014, she did mention the sum of $2,000 to $3,000 per session/week. In the same document, the mother also mentioned the costs of the orthodontic treatment at $30,000.

My views

38.  The mother is essentially asking for an increase in the financial provisions for R.   This can only be achieved by applying for a variation of the maintenance order under s. 11 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which provides:

“11. Variation, discharge, etc. of orders for financial provisions

(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

….

(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.”

According to the said provision, the court, in considering such an application for variation, has to consider all the circumstances of the case and in particular, any changes in the matters to which regard has been made in reaching the original order.

39.  In the circumstances of this case, the main issue now is whether there has been such a change of circumstances since the parties’ agreement on 20 February 2014 so as to justify an upward variation of the maintenance order.   After giving some careful thoughts to the matter, I am afraid the answer must be no.

40.  When the parties’ original agreement was reached, R’s medical insurance was part of the discussions during the hearing.   There was no dispute that the father works for a major international bank and he, being a high level executive, is entitled to a group medical insurance also benefitting R. It was then agreed by the mother to accept such medical coverage for R. The agreement was reached on 20 February 2014 and the mother applied for variation on 4 September 2014.   I do not see any significant changes of circumstances that would justify a revisit on R’s medical insurance during that 6 months period, or even up to the date of this judgment. Obviously, the mother changed her mind shortly after agreeing to the financial terms in February 2014 which is something that should not be encouraged by this court.   

41.  The same applies to R’s orthodontic treatment.  I do not see any evidence, or even any suggestion by the mother that R’s orthodontic needs only arose after February 2014. Therefore, I am not prepared to allow the re-opening of R’s needs in this respect within such a short period of time.

42.  As for R’s psychological treatment, I believe it must have also been a live issue in the parties’ minds at the settlement hearing.  We must bear in mind that R has been under emotional distress and being absent from school for quite some time.   R started to receive psychiatric treatment at the outpatient clinic of AHNH back in 2010 but defaulted after his last attendance on 4 January 2011.   There should not be any doubt on the need for R’s psychiatric or psychological treatment in February 2014. 

43.  Furthermore, I tend to agree with the father that either the services of the outpatient clinic of AHNH or the Social Welfare Department in providing psychological treatment for R are real options to be considered.   I appreciate that generally speaking, the waiting time for public service may be longer, but according to Mr Chan, a clinical psychologist of the Social Welfare Department, special arrangement can be made to cater for urgent needs.   After all, the mother has not arranged R to receive private psychological assessment or treatment, at least not recently, and it would be unfair to say that the psychological treatment to be provided by AHNH or the Social Welfare Department would not be suitable for R’s treatment.

Conclusion

44.  Based on the above reasons, I have come to the conclusion that there are no changes of circumstances that would justify a revisit of the financial reliefs for R within such a short period of time.

Orders

45.  In the circumstances, the mother’s summons dated 4 September 2014 is to be dismissed.

Costs

46.  The mother asked for costs of $20,000 against the father.   The father, almost as a knee jerk reaction, also asked for costs of $20,000 against the mother.

47.  Despite this is a dispute concerning children, the fact remains that the mother has failed in her applications and I have thought of ordering costs against her in view of her ulterior motive in making the application for a variation of the custody order.   However, after taking into account of the facts that the mother is a housewife and having to take care of a child who obviously has serious emotional problems, I have decided not to do so at this time.   Besides, as both parties are acting in person, the actual costs having incurred should be rather limited.  But I have to caution the mother that if there is going to be any future unreasonable applications, she may have to bear the consequence of an adverse costs order against her.

48.  In the circumstances, I now order that there shall be no order as to costs, including any costs previously reserved.