L v. C

CACV 333/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 333 OF 2003

(ON APPEAL FROM FCMP NO. 54 OF 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This was an appeal from a judgment and order of HH Judge Gill given on 30 June 2003. By that order the judge had granted custody, care and control of the child of the family, namely LHW, to the applicant with defined access to the respondent, consisting of visiting access on one weekday and staying access on alternate days at the weekends. At the conclusion of the hearing of this appeal this court allowed the appeal by the respondent and ordered that custody, care and control of the child be granted to the respondent; reasons were to be given in writing later which we now do. The terms of consequential orders as to access were agreed between the parties and orders were made accordingly.

Background

2. The respondent, who will be termed the mother, was born in Guangzhou in 1965. She came to Hong Kong at the time she was at school but returned to Guangzhou for her tertiary education where she qualified as a doctor in 1994. Since then she has lived in Hong Kong and has for many years been employed as a medical officer with the Hong Kong government. When working as a doctor in a hospital she met the applicant, who will be referred to as the father. He is some three years younger than the mother and qualified slightly earlier. The father has a specialist qualification and works with geriatrics.

3. The parties were married in May 1997 and the child was born in June 1999. As recorded by the social welfare officer who reported on the case, since both parents needed to work, they solicited the help of Ms LKF, one of the father's sisters. Ms L came to stay with the family at their home in Quarry Bay and for the first six months of the child's life she looked after him. There was also a live-in Filipina maid who took care of the household chores. The applicant and respondent would help in the childcare work when they returned home after work, but in the initial period the child slept with the paternal aunt at night. When the child was around six months old, the parents started to look after him at night themselves and he would sleep with one or other of his parents. During that time Ms L would come to help with childcare during the day. If both parents were busy at night, she would stay behind and sleep with the child. Thereafter there came a time, when the child was about 18 months old and thereafter, that he slept with the Filipina maid until she stopped working for the family in 2001. The child started pre-nursery school at Victoria Nursery and Kindergarten in August 2001. Ms L would take him to school. Ms L's assistance was enlisted more fully at the end of February 2002 when the replacement Filipina maid became sick.

4. The difficulties between the mother and father came to a head in March 2002. The mother had come to the conclusion that the father was seeing, and probably having an affair with, another woman. It is right to say that the mother has consistently maintained that allegation. It might also be noted that although the allegation was put to the father in cross-examination there has been no finding about that allegation despite the fact that the father's answers were hardly convincing, to put it at its lowest. The dispute between the parties which erupted on 2 March 2002 led to the involvement of their relatives. As a result, the parties departed from the matrimonial home in Quarry Bay. The father went to his parents' home in Tai Kok Tsui together with the child. The mother returned to the flat which she had purchased some time well prior to the marriage in Tuen Mun, where her father lived.

The ex parte order

5. Some two days later the mother took the child away from the paternal grandparents and brought him back to the Tuen Mun apartment where she was living. She enrolled him in a neighbourhood pre-school. At that time the mother refused to allow the father access to the child. Nevertheless there was considerable communication between the father and the mother, mainly by telephone, including mobile phone. There is no doubt that the father knew where the mother was living and working, he knew where the child was living and he also knew the school which he attended. It is therefore particularly surprising that the father, no doubt on the advice of his lawyers, and it should be added that Mr Clough was not acting for the father at the time, sought and obtained an ex parte order requiring the return of the child and granting custody to the father. That order was obtained without any notice to the mother. In the course of the hearing of this appeal counsel was asked what justification there had been for an order to have been obtained without giving any notice to the mother. Mr Clough, who was in no way responsible for that order, did not seek to a justify it having been obtained without notice to the mother. Indeed he went further. When this court expressed concern at the notion that such an order should have been obtained without notice, he indicated that practitioners were often under some pressure to seek orders without notice because it was known that some judges were prepared to grant them quite easily. I should hasten to add that the judge hearing the case was not the judge below but was a deputy judge sitting in the Family Court. In this instance the notes of the hearing of 12 April 2002 do not record any discussion between the court and the solicitor who appeared on behalf of the father. The whole proceedings were recorded as having taken no more than 10 minutes.

6. In view of the importance of ex parte orders not being granted except in proper circumstances namely where either the delay would cause the applicant injustice or the party who would be the subject of the order would take action which would nullify the effect of the order, it can only be reiterated, yet again, that ex parte orders go against the normal way litigation is conducted. It is an infringement of the rights of natural justice of a party that he or she should be denied knowledge of a hearing at which an order is sought which would affect him or her. Those who make such applications have a duty to take heed of that and they cannot pass their responsibility to the court when they make such applications. Nevertheless the court must also be vigilant whenever any application is made ex parte without notice having been given to the other party that such orders should only be made in very special circumstances, as I have outlined. In view of the importance of this point I would like to quote from the judgments of Hoffmann LJ, as he then was, and Sir Thomas Bingham MR in the case of TRP Limited v Thorley (Court of Appeal, 13 July 1993). The judgments are, regrettably, unreported but the Lexis Transcript records Hoffmann LJ as saying:

"In my judgment the judge should not have entertained the application ex parte and I venture to repeat what I said in Re First Express Limited which was reported in [1991] BCC 782 at page 785.

'It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First, that giving him such an opportunity appears likely to cause injustice to the applicant, by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made. Secondly, when the court is satisfied that any damage which the respondent may suffer through having to comply with the order is compensatable under the cross-undertaking or at the risk of uncompensatable loss is clearly outweighed by the risk of injustice to the applicant if the order is not made.

There is, I think, a tendency among applicants to think that a calculation of the balance of advantage and disadvantage in accordance with the second condition is sufficient to justify an ex parte order. In my view, this attitude should be discouraged. One does not reach any balancing of advantage and disadvantage unless the first condition has been satisfied. The principle audi alterem partem does not yield to a mere utilitarian calculation. It can be displaced only by invoking the overriding principle of justice which enabled the court to act at once when it appears likely otherwise injustice will be caused.'

The rules require only two clear days' notice and leave can, if necessary, be obtained for abridgement. Even in cases which are too urgent for formal notice of any kind there is no reason why informal notice of an application should not be given by facsimile or telephone."

7. Sir Thomas Bingham MR had this to say:

"So far as the substance of this matter is concerned I agree with the judgments which My Lords have delivered and I agree with the order which they propose. I do, however, wish to endorse and highlight the observations of My Lord, Lord Justice Hoffmann, concerning the procedure which was adopted in this case. Applications for injunctions are governed by Ord 29 of the Rules of the Supreme Court and in Ord.29 r.1(2) one finds the following:

'(2) Where the applicant is the plaintiff and the case is one of urgency such application may be made ex parte on affidavit but, except as aforesaid, such application must be made by a motion or summons.'

That rule is the subject of comment in para 29/1/8 on page 514 in volume 1 of the current White Book where one finds among other statements the following:

'Though this rule authorises ex parte applications by the plaintiff, such an application for an injunction will not be granted unless it is made promptly, and it must be shown that there are strong grounds to justify its being made ex parte.'

Again, ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion.

These statements are unsurprising since it is on the face of it plainly contrary to the principles of natural justice that any judicial order adversely affecting a party's interests should be made against him without his being given a reasonable opportunity of being heard. That is the simple overriding rule on which our system of justice depends. The rule is not, however, absolute and unqualified. Derogations are permitted in certain very limited and exceptional circumstances, the most obvious of these so far as the granting of injunctions is concerned being where the situation is one of such extreme urgency that there is literally no time to warn the defendant of what is proposed or where the purpose of the injunction will or may well be frustrated if the defendant is informed of what is proposed or where the defendant simply cannot be found. The exceptional nature of the circumstances must, however, be stressed. They are the exception and not the norm. Even when time does not permit application on full notice it is highly desirable to inform the other party that the application is to be made ex parte so that he can if he wishes attend and make such representations as he wishes."

8. I have quoted extensively from these judgments because, although they contain what is clear and well-established law which has been reiterated in judgments in Hong Kong, it is apparent and confirmed by the submissions made by counsel that these highly important principles are being disregarded. These principles apply just as much in matrimonial and custody proceedings as they do in any other.

9. The subsequent attempt by the mother to have the effect of the ex parte order reversed failed. The proceedings nonetheless continued. Prior to the trial of this matter, which commenced in January 2003 but regrettably was not completed in the three days allotted and then was adjourned and only restored in June, two Social Investigation reports were prepared. Reference has already been made to part of the first of those reports.

The Social Investigation reports

10. Whilst the first report gives background information, for example as to the accommodation which the mother and father respectively can offer, it also contains useful information in relation to the present care given to the child and as to the likely care which he will receive. Specifically it would appear from the report that whilst he is with the father the primary carer is in fact Ms L. That is not to say that the report does not, for example, refer to the father as reading stories and watching DVDs with the child, but on the other hand it would appear that the bulk of the childcare was performed by the paternal aunt. So, for example, the child would normally be bathed by the paternal aunt before going to sleep. Indeed, the report includes reference to the fact that the child indicated that he was taken care of mainly by the paternal aunt when he was in the father's home. That would not be particularly surprising. The father is in his mid-thirties. It is more than likely that after the break up of his marriage he would want to seek other company.

11. It is, whether fortunately or unfortunately, a fact of life that children respond to female attention and female attention to children is more natural with young children. The first report records that, with regard to the mother, she would provide personal care for the child at night and tend to the child's medical and educational needs by herself. Although the mother needed the assistance of the maternal grandfather and the Filipina maid, they could provide proper childcare during the daytime.

12. The first report concluded with the recommendation that the custody of the child should be granted to the mother with proper access to the father. It is not the conclusion which was arrived at but the reasons for that conclusion which, to my mind, are important. The report acknowledges that, at the time it was written, the child was living with the father and that was regarded as being the status quo. It went on, however, to make the point that it could be considered in the long-term interest of the child that he should be looked after by his natural parent. Whilst both parents had to rely on others to provide some physical care of the child, the mother still remained the major caring agent for the child. In contrast the report went on "Whereas, the Father relies almost fully on the paternal aunt to discharge all the childcare duties, even when he is at home after work." The first report also mentioned that the child had shown a high level of proximity seeking behaviour towards the mother.

13. There was a second report made shortly before the first hearing in the court below. That added little further to the earlier report save that the observation was made that the maternal grandfather and maid appeared to be more able to play and interact with the child at his level.

The judgment below

14. In the court below the judge concluded that the living conditions which could be offered by the respective parties were both satisfactory and that no realistic distinction could be drawn between them. The judge referred to the position of the parties and recited extensively and, save in one respect mentioned below, without making any observations of his own, from the Social Investigation reports. One of the matters to which he referred was evidence from the mother that although she wanted to achieve a specialist qualification and that studying for that would add appreciably to her workload, she said that she would not allow her ambitions in this regard to stand in the way of her responsibility of looking after the child. The judge recorded that he understood her to mean that she would not pursue her studies if that was detrimental to his welfare. Having gone to the trouble of referring specifically to that evidence the judge gave no indication that he did not accept it.

15. The judge referred to six factors which he regarded as being matters which should be taken into account. Whilst I would not question that those are relevant matters it is the treatment of those and the absence of reference to other matters which to my mind are important in this case.

16. In paragraph 39 of his judgment the judge said:

"Of the six factors I have listed, that which favours the father is that the status quo is working, and working well. I place a particular weight on the fact that Miss L has been the child's carer from the time of his birth; that there is a close and loving rapport between her and the child; that she is willing in the foreseeable future to continue to play this role; that the child is seeing plenty of his father who is able to devote time and energy towards fostering the child's development socially, academically and emotionally; that the child is maintaining a close and loving relationship with his mother and with her family within the terms of access currently enjoyed; that above all the child is flourishing."

17. The importance of the status quo appears to me to be of comparatively minor significance in this case. As the judge noted in the very next paragraph, he was not concerned about disruption should the child be required to move house again. I, myself, would add that it can be considered as a matter of some relief that he does not seem to have been adversely affected to any great extent by his parents' difficulties. The importance of the status quo would vary from case to case. In a case such as this it is merely some confirmation that the existing circumstances are not adversely affecting him. In this case there is no reason to suspect that if the mother's proposals were to be accepted any change would be adverse of itself and hence the significance of the status quo is of very small importance.

18. The judge went on to observe that the mother had the additional load to bear of studying for further qualifications which she was striving to achieve. As has already been noted, the judge specifically referred to the mother's evidence in this regard and seemingly accepted it. In referring to the Social Investigation reports the judge said that he paid heed to the preferences expressed in the reports. The only observation made, however, was that he queried as to whether the mother would be the primary carer of the child. I, for my part, would observe that it is not so much the conclusions and recommendations which are made in a social welfare report as the report itself and the facts and matters stated therein that are important. Given the mother's evidence, which seems to have been accepted, the doubts expressed are not based on any finding of fact by the judge.

19. In paragraph 41 of the judgment the judge said:

"In the event, my decision is not to follow the recommendation of the Social Welfare officer because, in my view, the mother has not demonstrated she is in a relatively better position to provide for the child's various needs as he develops."

The way that paragraph is expressed gives an unfortunate impression that the onus was being put on the mother to establish that the arrangements which had been arrived at as a result of the preemptive ex parte order and maintained thereafter should be altered.

20. What seems to me to have been overlooked in this case was the importance of one of the natural parents being the primary carer of the child. In this case it is quite clear that, albeit both parents work and have similar working patterns, that if the mother were to be given custody she would be the primary carer whereas if the father were given custody the paternal aunt would fulfil that role. Without in any way suggesting that the paternal aunt does not devote full care and attention to the child, the importance of the natural parent being the primary carer must not been lost sight of. Coupled with that if the parent proposed to be the primary carer is the mother, this too, is highly significant because of the natural role of the mother in the rearing of very young children. In this respect I would add that the judge does not appear to have considered the role of the mother in a child's life in comparison to that of a paternal aunt, however devoted she may be.

21. It is these factors which in my view the judge below overlooked. Indeed, in assessing the Social Investigation report, the judge's only critical assessment was as to the role which the mother would play and in my view the dismissal of this point in the judgment was not justified by any finding which the judge made.

Hon Yuen JA:

22. For my part, I do not wish to comment on the grant of the ex parte order in this case because the mother had applied for its discharge, she was unsuccessful and there was no appeal. As a matter of principle and practice however, I would agree with the observations of the Vice-President in paragraphs 6 and 7 of his judgment. I also agree with the reasons given for allowing this appeal.